Archive for January, 2008
The Phenonmenology of Political Correctness
posted by Carrie Menkel-Meadow
As I have said on these pages before, I will happily vote for Obama if he becomes the Democratic nominee, but I still see some merits in voting for Hillary Clinton. As a member of one of the most “liberal” law schools in the country (all I mean by that is that we know we have many more Democrats on the faculty than Republicans, but how many and how many Independents is not known, nor should it be, in my view), I have been quite surprised to learn how “silenced” I feel by my many colleagues who are enthusiastically supporting Obama (a wonderful group of whom went to work in South Carolina and are now working hard in Maryland for him, which I think is terrific). On the issues we likely feel mostly the same –end the war in Iraq and bring the troops home, do more to deal with our stubborn problems of poverty, inequality and inequities, restore some sense of a positive reputation for our nation in its internal and external affairs, provide health care for all and restore faith in our beliefs in inclusion, justice, and social equity and opportunity. Yet, in conversation after conversation I feel like a Republican in a Democratic world for expressing any positive views about Hillary (and until yesterday about John Edwards too). Or as one of my similarly minded colleagues said, why does it feel like a “guilty pleasure” to vote for Hillary?
A few years back I was asked to moderate a panel at Georgetown in which Viet Dinh (R) and John Podesta (D) and I addressed concerns about political correctness and diversity of view in our student body. This was before a choice-right to life dispute here last year, but during a period of our generally wonderful community-enhancing culture here. We had a lively, civilized discussion, which actually led to some concrete suggestions (and whether coincidentally or not ,we have subsequently hired several more conservative members of our faculty, both entry level and lateral). All of this was our institution at its best. So, now I feel like one of those students who complained about feeling silenced in the classroom (pro-life in a sea of pro-choice, or market based efficiency in a sea of state regulated fairness).
Many of my colleagues, rightly, feel that Obama will signal a new day for the United States — as they say, “the prince of hope, inspiration and change,” as JFK seemed in 1960. (I was actually an RFK fan swimming against the Eugene McCarthy tide in 1968). My pollster husband tells me some of this is generational –so far Obama is outpolling Clinton in youth votes and she is still outpolling him in “older” voters. Oh dear, how did this “child of the sixties” (me) become an older person? Many think both Clintons are tainted by the failures of that administration to do more on the issues I mentioned above and I agree with those who think that Bill Clinton’s campaigning has been a bit “OTT” (over-the-top) lately, employing old and unnecessary “hit” tactics that will not serve us well post-primary season, BUT the Clintons (and HIllary in particular) were thwarted in their efforts by the health insurance industry, the Gingrich “revolution” and a Republican Congress (if not a “right wing conspiracy,”) and we should think about more complex lines of causality, as any President will have to.
When I listen to some of the most persuasive arguments on behalf of Obama –that he will signal something new (and don’t tell me his multi-cultural identity is not one of those things, which I applaud and support) like greater credibility abroad and more of a community organizing background, I am unable to be heard on some of the arguments or views that I have about Hillary without being glared at or feeling like I am supposed to turn in my membership card for SALT or other bastions of “secular humanism or liberalism” that I am a member of. Hillary and Obama are both lawyers, trained at elite schools and using their considerable intellects and personal qualities to do a wide variety of things. They are much closer in fact than all the rhetoric would suggest. They both have represented some unsavory clients (Wal-Mart and slumlords) and they both have done extraordinary work on the amelioration of poverty and related issues (children, legal services, education and health care for Hilllary; community empowerment, poverty reduction, education, and social equity for Obama). When I am told that Obama will make a great signal to the rest of the world that we are the inclusive nation we say we are I need to remind people that on the basis of much of my international work in the last few years, Hillary (and yes, her husband Bill) are much beloved abroad. And what would a first woman president signal to the rest of the world and our own children? Both candidates have much to say for these issues –both substantive and symbolic and both, in my view, are important in elections and leadership.
Perhaps I am getting older or it is my years in Washington DC, but I do also value someone who has worked “in” this system, despite all its muckiness, and who manages to bring in people who often claim not to like her. I did not start out a great fan myself (for a variety of other reasons) but as I consider my own continuing deliberations (as one who teaches and practices deliberative democracy), I want more discussions of both the merits and who could be an effective and “electable” leader. I don’t like being made to feel guilty that I might vote differently than some of my colleagues.
Whatever happens in the elections, I know, as a teacher who has always tried to create an atmosphere of genuine respect for different views in the classroom , I have learned a great deal about the experience or ethnography of political correctness, now from inside that experience. As one talky, noisey girl, I feel like I can’t express certain views that are not expected of my demographic (progressive, ciivl rights, justice seeking, anti-war, political activist).
Both as a teacher and as a mediator, being inside the experience of a “minority view” in my own institutional political culture is instructive. Perhaps I need to go back and read (along with my colleagues) the posters on my office door about how to have conversations across difference. I”ve been a disenfranchised or minority person before — but feeling like I can’t say what I think –that is a somewhat new experience. For those of us who will want to work together in a new government and administration, I think we need to heed some of the process advice of Emma Goldman –to paraphrase somewhat, the process of the revolution needs to reflect the values that will follow when the revolution is successful. A little really good open and deliberative conversation could go a long way to making that new political order. Let’s have some respect for our not-so-really-different views, as well as for those with whom we really do differ. For you teachers out there, think about how you structure conversations in your classes to elicit good and open thinking and think about whether and how you express your own political views.
January 31, 2008 at 2:55 pm
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January Responses
posted by University of Pennsylvania Law Review
PENNumbra‘s featured works are now available at www.pennumbra.com.
Elizabeth M. Glazer provides a fourth response (following in the wake of Professors Fennell, Garnett, and Underkuffler) to Eduardo Moisés Peñalver and Sonia K. Katyal’s Property Outlaws, 155 U. Pa. L. Rev. 1095 (2007).
Professor Glazer, in her Response, Rule by (Out)Law: Property’s Contingent Right to Exclude, attempts to explain why Peñalver and Katyal’s “property outlaws” so successfully violate property owners’ exclusion rights when the right to exclude is seen “as property law’s most important or defining right.” Professor Glazer concludes that “the outlaw tells us[] that an owner cannot invoke [the right to exclude] if she wishes to invoke it in isolation. . . .” She believes that the right to exclude is only absolute “so long as its exercise is coupled with the exercise of another right in the property bundle.”
Shyamkrishna Balganesh responds to Sara K. Stadler’s Copyright as Trade Regulation, 155 U. Pa. L. Rev. 899 (2007).
Balganesh examines Professor Stadler’s argument that “the copyright grant be reformulated to consist of no more than an exclusive right to distribute works publicly.” He agrees that “copyright law ought to be visualized as a doctrine of unfair competition,” but offers an alternative conception of “implementing this ideal.” Balganesh writes, “Since copyright is about generating incentives for creation, we might want to connect [a competitive] nexus requirement to copyright’s instrumental purpose through a test of foreseeability. Given that liability for infringement is premised on a showing of copying, such a test would place the burden on the plaintiff to show that the defendant’s copying was in a market and of a form reasonably foreseeable when the work was created.”
As always, please click on the PENNumbra link to read previous
Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
January 30, 2008 at 11:22 pm
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The Three Steps in D.C. v. Heller
posted by Mike O'Shea
It’s a pleasure to be back at Concurring Opinions. I much enjoyed guest blogging here last summer, and the management has been kind enough to invite me back for a few months to cover firearms law issues during the pendency of District of Columbia v. Heller, the landmark Supreme Court case on the Second Amendment right to arms. I’ll cover the briefing, the oral argument on March 18, and the decision, which will probably be issued at the end of the term in June. I also hope to discuss some other firearms law topics such as ConocoPhillips v. Henry, a legal challenge to an Oklahoma law giving employees the right to store their self-defense guns in their locked cars while at work.
On to Heller. I commented on the certiorari briefing during my stint last fall with the fine folks at PrawfsBlawg. This post discusses the merits brief filed by D.C. as petitioner. We’re waiting for Mr. Heller’s merits brief next week, and then his crowd of amici in the week to follow.
The general character of the District’s merits brief is what you’d expect of a lead brief in a Supreme Court case of this magnitude — polished, efficiently written, and in many respects reflective of skilled and thoughtful advocacy. What I want to do here is consider the litigating stance of the District in light of the “pressure points” in Heller — the key moves that each side is asking the Supreme Court to make.
Here’s the question presented in Heller, which the Justices themselves drafted as part of the certiorari grant [bracketed text mine]:
Whether the following provisions — D.C. Code §§ 7.2502.02(a)(4) [banning handguns], 22-4504(a) [banning gun carrying, including at home], and 7.2507.02 [requiring all guns to be both unloaded and locked or disassembled] — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
The question suggests that the Court has its eye on the right issues. It breaks down naturally into three interpretive steps:
January 30, 2008 at 11:02 pm
Posted in: Supreme Court
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Recent Proposals for Electoral College Reform
posted by Michigan Law Review
The Michigan Law Review’s companion journal First Impressions today published an online symposium on Recent Proposals for Electoral College Reform.
Several proposals for changing the manner in which electoral votes are assigned have been increasingly debated since the 2008 presidential campaign began. Among these are recent suggestions that states assign their electoral votes based on the popular vote results in individual congressional districts or assign their electoral votes statewide based on the national popular vote. The symposium contributors explore the viability and advisability in today’s political climate of these and other Electoral College reform proposals.
The extended post contains a more complete description of the symposium and links to the essays.
January 30, 2008 at 10:00 pm
Posted in: Law Rev (Michigan), Law Rev Forum, Politics
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Risk Aversion and Sports Securities Markets (Or, How is Randy Newsom Like a Lemon?)
posted by Dave Hoffman
Larry Ribstein and Christine Hurt have highlighted a new investment opportunity: buying a share in a professional baseball player. (Slate follows the herd.)
The idea is the brainchild of minor-leaguer Randy Newsom, to date the only player who has offered his future earnings up for sale. (RSI is currently offering 4% of his future major league salary at the price of $50,00, $20/Share. 2,500 total shares.) As Newsom explains, the concept is a hedge for athletes:
“Minor leaguers can make as little as seven or eight thousand dollars a year. Some have families to take care of, some have to take jobs right away once the season is over to pay bills, and many of those that are a little better off still can’t afford some of the things that could help them reach the big leagues, like hiring a nutritionist or going to some of those expensive training institutes. With that in mind, I wanted to come up with a way that players could use their own upside earning potential to try to help their financial situation in the present and kind of lock in some of that earning potential, like insurance.”
I doubt that the company Newsom formed (RSI, L.L.C.) will be able to successfully assert that these “shares” aren’t securities due to be registered with the SEC. It looks like they are going to argue that even though they are advertising their wares to the public as tradable shares, what’s really being sold is two separate contracts. The first, between RSI and the player, gives RSI an assignable right to the player’s future income in return for some money down, and a right to sue the player for not working under limited circumstances. The second contract, between RSI and the “investor,” transfers that payment right and itself then may be traded as an option (?) on the “market” the RSI will create on its webpage. The result sounds like a mix between a prediction and a securities market. I have no clear idea how the SEC will treat it, though I’m pretty sure that simply warranting that buyers “agree that purchasing shares in a player is in no way considered a public offering as defined by the Securities Exchange Commission (SEC)” won’t be enough!
But who cares about the law. The question is whether these contracts are good investments? Steven Levitt says no. He thinks Newsom is identifying himself as a lemon by advertising his future major league earnings as $1.25 million or less (where the average annual salary exceeds $400 K). On this view, perhaps major league teams should use these kinds of “shares” to excavate private knowledge about player health and performance – players who sold themselves might know about a nagging elbow problem they didn’t want to tell the team trainer about; players who did would know that they had recently discovered an untraceable Andean fruit known for turning Juan Samuels into Ryan Howards. (Push past manipulation problems! Abramowicz does!). Of course, this suggests that the entire minor league trading market would go down the lemon-hole, as Jeff Na argued here.
But I’m not sure that this analysis is accurate. Why does Levitt so quickly discount risk-aversion as an explanation for Newsom’s desire to hedge himself? The five-year odds of a career-ending injury for a 25-year-old professional pitcher (even a submariner like Newsom) are high – I’d bet above 40%.* And the lifetime expected earnings of a 25-year old pitcher promoted to the majors are probably not much north of $2M. A rational player, under these circumstances, will accept only contracts that would provide him more than $1.2 M. But players, like all of us, are risk averse with respect to future gains, taking money now more often than not. It doesn’t seem crazy (to me) to a severely discount on a slice of your future profits if the payback is $50,000 today – especially if that $50,000 goes toward necessities like the mortgage. Risk aversion is a powerful bias!
* I actually have a buddy who probably knows this number like the back of his hand, and who right now, reading this, is shouting out “Nooo! It’s 28.3%!!! You weren’t thinking about the advances in Tommy John repair, you fool!!!” Sorry, friend, but you should go back to work.
January 30, 2008 at 1:50 pm
Posted in: Securities
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Who Will Pay for the Content?
posted by Frank Pasquale
Mark Anderson has a concise overview of the big issues in search engine law up at the IEEE Spectrum. Here’s a taste:
[James] Grimmelmann writes that four broad areas of law—intellectual property, free speech, antitrust, and the openness of search algorithms—are still very much up for grabs in Internet search. And the next few years could see rulings, settlements, or legislation that will put some of the key legal cornerstones in place.
“The biggest undefined area is how far fair use extends in copyright,” Grimmelmann says, referring to the doctrine that allows for use of copyrighted materials for the purposes of education, public interest, or parody. How broadly Google or Yahoo or any of their peers can claim fair use to index Web sites, databases, books, and other copyrighted content, he says, is the essential issue. And the pending lawsuits filed against Google’s new Book Search engine are where Grimmelmann says the biggest legal aftershocks could originate.
My gut feeling is that we’re going to see a lot of settlements between Google and the big players here. (I wonder what the Predictocracy foresees?). On the other hand, another analyst (James V. DeLong) thinks it’s in Google’s interests to win its IP battles outright:
January 30, 2008 at 9:09 am
Posted in: Cyberlaw, Google & Search Engines
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Absolutely Scrabulous
posted by Frank Pasquale
Facebook offers many “apps” online, including games like “Scrabulous,” a spitting image of the word game Scrabble. Hasbro and Mattel have now warned both Facebook and the app’s creators (Rajat and Jayant Agarwalla) that they’re infringing the Scrabble owners’ intellectual property rights. A groundswell of Scrabulous fans are agitating online:
Hasbro, the maker of Scrabble, is suing Scrabulous for being too, well… Scrabble-ish. A shutdown notice was sent two weeks ago, and it’s only a matter of time before Facebook’s 9th most popular application bites the dust. That’s why we need to band together and show those Hasbro suits that we’re [hoppin' mad].
But Scrabulous’s more scrupulous defenders concede the copying here is a tad bit scrofulous. The Agarwallas are now making about 25K per month from the app, and presumably Mattel deserves a cut. But exactly what rights are being infringed?
Games can be patented (see, e.g., the famous Rubik’s cube case), but the underlying process of playing Scrabble has likely long since passed into the public domain. Even the founders of the the “Save Scrabulous” group on Facebook concede that “copyright infringement is obvious,” but is it? As one of my students wrote to me, isn’t the board a bit like the blank forms that courts have been unwilling to extent copyright protection to? And isn’t the arrangement of colored squares on the board wholly functional, an indicator of various scores for certain plays? Perhaps the particular colors of the board itself could be deemed a form of product design trade dress, but I think you could see a translation of the principles of Lotus v. Borland into functionality defenses against trade dress infringement claims.
That still leaves the elephant in the room–the substantial similarity between Scrabulous and the mark Scrabble. But in keeping with the theme of this post (of pushing defenses here to the breaking point)–could Scrabble be generic?
January 29, 2008 at 10:02 pm
Posted in: Intellectual Property
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Measuring Justice(s) in Louisiana
posted by Robert Ahdieh
An article in today’s New York Times, by Adam Liptak, reports on a forthcoming article in the Tulane Law Review, co-authored by Vernon Palmer (Tulane Law) and John Levendis (Loyola-New Orleans economics). As Liptak reports it, Palmer – a comparative law scholar – had long been struck by the ability of Louisiana Supreme Court justices to hear cases involving individuals who had previously made campaign contributions to them.
Quite reasonably, Palmer wrote a letter to each of the justices, recommending adoption of a rule mandating disqualification in such cases. Receiving no reply, he wrote again. Once more, no response was forthcoming. Some might have given up on the quixotic endeavor at this point. Being at academic, however, Palmer instead decided to recruit Levendis to help him do an empirical study of campaign contributions to the Court’s justices and relevant case outcomes.
Their basic calculations indicated the justices to have voted in favor of their contributors, on average, 65% of the time. (In the case of some justices, the level rose to 80%.) But the really interesting findings came when they used voting patterns in cases without contributors as their control. Liptak is worth quoting:
Justice John L. Weimer, for instance, was slightly pro-defendant in cases where neither side had given him contributions, voting for plaintiffs 47 percent of the time. But in cases where he received money from the defense side (or more money from the defense when both sides gave money), he voted for the plaintiffs only 25 percent of the time. In cases where the money from the plaintiffs’ side dominated, on the other hand, he voted for the plaintiffs 90 percent of the time. That is quite a swing. . . .
Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.
Not having seen the article itself, it’s hard to evaluate the quality of the authors’ empirics. If they’re even a little right, though, it seems like quite a finding. And perhaps quite telling, about justice and the elected justice.
January 29, 2008 at 9:12 pm
Posted in: Constitutional Law, Empirical Analysis of Law, Law Practice, Legal Ethics, Politics
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Minnesota Law Review, 92:2 (December 2007)
posted by Minnesota Law Review
Minnesota Law Review, Issue 92:2 (December 2007)
Articles
Todd E. Pettys, State Habeas Relief for Federal Extrajudicial Detainees, 92 Minn. L. Rev. 265 (2007)
Michael Waterstone, A New Vision of Public Enforcement, 92 Minn. L. Rev. 434 (2007)
Notes
January 29, 2008 at 6:39 pm
Posted in: Law Rev (Minnesota)
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Minnesota Law Review, 92:1 (November 2007)
posted by Minnesota Law Review
Minnesota Law Review, Issue 92:1 (November 2007)
See below for abstracts.
Articles
Jason Mazzone, The Bill of Rights in the Early State Courts, 92 Minn. L. Rev. 1 (2007)
Alexandra B. Klass, Punitive Damages and Valuing Harm, 92 Minn. L. Rev. 83 (2007)
Note
January 29, 2008 at 2:46 pm
Posted in: Law Rev (Minnesota)
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Translating Online Life for the Tech-Avoidant
posted by Frank Pasquale
In a recent edition of On the Media, NYT law reporter Adam Liptak contended that many 4th Amendment cases involving computers challenge the technical understanding of appellate judges who favor faxes over email and pens over laptops. A couple of good articles have recently tried to bridge such gaps by explaining online worlds like MySpace and blogs to a print-bound public. Lauren Collins’ reportage on the Megan Meier scandal offers a pitch-perfect portrait of a brave new world of posing and self-promotion online. Sarah Boxer’s NYRB take on ten books on blogs covers more territory online, but less compellingly: the blogosphere is a much less “capture-able” phenomenon than one small corner of social networking.
Here, for instance, is Boxer’s attempt to capture the “essence of blog writing:”
[E]ven blogs that have few or no links still show the imprint of the Web, its associative ethos, and its obsession with connection—the stink of the link. Blogs are porous to the world of texts and facts and opinions on line. (And this is probably as close as I can come to defining an essence of blog writing.) Bloggers assume that if you’re reading them, you’re one of their friends, or at least in on the gossip, the joke, or the names they drop. They often begin their posts mid-thought or mid-rant—in medias craze.
So while the MSM brings a general public up to speed, blogs apparently are better designed to capitalize (and consolidate) small communities of the like-minded. I suppose I can accept that generally, but why blame the links? Aren’t they often a much better way of filling in readers on the whole story than the parentheticals and asides that can weigh down a print story? And aren’t poets the more perplexing perpetrators of puzzling obscurity?
But Boxer does offer a good critique of links reminiscent of Grimmelmann’s recent Lawyers, Blogs, and Money post:
January 29, 2008 at 9:55 am
Posted in: Blogging
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SWF’s
posted by Robert Ahdieh
No, no. As much as my subject might look like titillating Instant Messaging (IM) short-hand used by the High School Musical set, it’s actually Sovereign Wealth Funds (SWF’s) that I have in mind.
In yesterday’s Wall Street Journal (requires subscription), Alan Murray reported from the World Economic Forum, on Sovereign Wealth Funds as the “it girl” at Davos this year. (Thereby displacing private equity from that role and, in the words of a private equity fund manager in attendance, “return[ing] [them] to the obscurity that [they] so richly deserve.”) As Abdul-Aziz Abdullah Al Ghurair, chief executive of one of Dubai’s SWF’s, dryly noted: “I’m surprised they are paying so much attention to us.” Paris Hilton, eat your heart out; Abdul-Aziz has arrived at the party.
Much has been made of Sovereign Wealth Funds’ substantial investments in major U.S. companies, including in numerous banks struggling amidst the subprime mortgage crisis. No less an analyst (and internationalist) than former U.S. Treasury Secretary and President of Harvard University Larry Summers is among those sounding alarms.
Two things particularly struck me about Murray’s report from Davos, though. The first was the fact that the second largest SWF, following the very prominent fund controlled by the government of Abu Dhabi, is the Government Pension Fund of Norway. Somehow, I couldn’t help but wonder whether the heat surrounding the rise of SWF’s would be quite as great, if the story line wasn’t about Arabs and the Chinese buying stakes in brand-name U.S. companies and banks, but Norway doing so.
The second was Murray’s point about the relative place of the United States in the global economy. Murray reports data from the McKinsey Global Institute, finding that $56.1 trillion (or one-third) of the world’s financial assets were held in the U.S. in 2006, but that emerging markets had experienced explosive growth, such that they had come to hold $23.6 trillion (by 2006). Looking at McKinsey’s own summary of the report, one finds more of the same. European financial markets had risen to a level just shy of the United States, at $53.2 trillion, but also have a higher growth rate. In part on account of the latter, the euro is “emerging as a rival to the dollar as the world’s global reserve currency.” The growth rate for the emerging markets, as suggested, also beat the U.S. rate.
Perhaps we really are reaching – eight years into the new century – the end of “The American Century.” Many have suggested a loss of U.S. global prestige and diplomatic influence in recent years. But perhaps the years ahead promise a similar decline in economic influence. Where once U.S. public and private entities bailed out distressed governments overseas, the last year has seen the rescue of struggling U.S. banks and other companies by government instrumentalities of Abu Dhabi, Dubai, and other sovereign states.
As Murray points out in his piece, this redistribution of wealth (and influence) is clearly good news for many in the world. And it is at least not obvious that it is overly harmful to Americans themselves. As far a rhetoric and self-perception go, however, we may be in for an interesting ride.
January 29, 2008 at 7:38 am
Posted in: Corporate Law, Current Events, International & Comparative Law, Securities
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Short courses?
posted by Robert Ahdieh
Greetings from (mostly sunny) Champaign-Urbana, where I’m spending the week, teaching a short course on Federalism and the Making of American Corporate Law at the University of Illinois. Under the law school’s short-course program, the brainchild of Ralph Brubaker, my former colleague at Emory and now Associate Dean here at Illinois, anywhere from five to ten professors, judges, and attorneys come to campus each term, to teach a week-long, one-credit course.
I’m told the students generally love the short courses. My own data – consisting of the (fairly high, I think) enrollment of 27 students in the class, and good participation in the first class (yesterday) – would seem to confirm as much. For the visitors, meanwhile, it can be an occasion to try something new, or at least different, and to spend time with academic colleagues they might otherwise only see in passing, in the hallways at AALS. For Illinois, finally, it’s an opportunity to spread good impressions and good will among legal academics, on the bench, and with the bar. (As Charles Tabb – who’s serving as Interim Dean – put it, it’s a great way “to make new friends.”)
At Emory, we have “accelerated courses,” but of a different sort. Visitors, most commonly hailing from overseas, come for four to seven weeks to teach a class or two. Again, students like it, etc. Obviously, though, the longer format engages a completely different set of potential visitors.
Do other schools do anything similar to Illinois? If not, it’s something I suspect might be well-worth considering.
January 29, 2008 at 7:00 am
Posted in: Corporate Law, Education, Law School, Law School (Teaching), Teaching
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Michael Abramowicz’s Predictocracy
posted by Daniel Solove
Professor Michael Abramowicz, my colleague at GW Law School, has just published a new book, Predictocracy: Market Mechanisms for Public and Private Decision Making (Yale University Press 2008). From the book jacket:
Predicting the future is serious business for virtually all public and private institutions, for they must often make important decisions based on such predictions. This visionary book explores how institutions from legislatures to corporations might improve their predictions and arrive at better decisions by means of prediction markets, a promising new tool with virtually unlimited potential applications.
Michael Abramowicz explains how prediction markets work; why they accurately forecast elections, sports contests, and other events; and how they may even advance the ideals of our system of republican government. He also explores the ways in which prediction markets address common problems related to institutional decision making. Throughout the book the author extends current thinking about prediction markets and offers imaginative proposals for their use in an array of settings and situations.
Michael guest blogged here last year, and his work is always interesting and thought-provoking. Professor Ian Ayres (Yale Law School) writes about Michael’s Predictocracy:
Will Hillary or Arnold ever be elected? Will Die Hard VIII be a hit? Will the HP merger go through? Will Sanjaya be voted off this week? Our best evidence on all these questions increasingly comes from prediction markets. We already live in a world where orange juice future prices can usefully supplement the best government weather predictions. But Predictocracy shows that we’re just scratching the surface of what can be done with this powerful tool. Abramowicz’s inventive mind shows new ways to design prediction markets and radically new domains to predict. In this new world, peer reviewed journals, legal restatements, even deliberative democracy may ultimately be guided by the force of predictive bets.
Anything Michael writes is well-worth reading, and I predict that this book will be too (pardon the pun). It is a book I’ll definitely be adding to my shelf.
January 28, 2008 at 2:23 pm
Posted in: Book Reviews
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A Permit To Own Air Testing Devices? NYC Considers the Idea
posted by Deven Desai
The Village Voice reports that New York City wants to require permits for any testing devices because of a fear of false alarms. So one can no longer be the odd person who knows anthrax is in the air and tries to test for it. All such devices including those that test for “industrial pollutants to asbestos in shoddy apartments” or even geiger counters are covered. After all there is a danger: “There are currently no guidelines regulating the private acquisition of biological, chemical, and radiological detectors,” warned Falkenrath (“NYPD’s deputy commissioner for counterterrorism”), adding that this law was suggested by officials within the Department of Homeland Security. AHHHH!! No guidelines on how to use a testing device? The horror. It is worse than you thought: “There are no consistent standards for the type of detectors used, no requirement that they be reported to the police department—or anyone else, for that matter—and no mechanism for coordinating these devices.” Right we need a centralized sophisticated system for these things.
Now the supposed claim is that the move will prevent false alarms. Yet the Voice states that false alarms have not occurred. This move is preventative. Of course little things like the independent testers who revealed Ground Zero was not safe after the EPA said it was, those who test schools and other areas for asthma causing materials, and oh “Dozens of university researchers, public-health professionals, and environmental lawyers” at the hearing who need to use such devices seemed to matter little to those behind the proposal who said that yes independent testers would have to be put in jail if they lacked a permit. The ban makes it illegal to possess such a unit.
The hearing at least made the council reconsider. They are redrafting the bill. The idea seems silly. It should not go further. Even when false alarms were an issue with home alarms a fine seemed to address that problem. So if someone thinks something is amiss, maybe they should try and verify it. IF numerous false positives do occur (remember years after Sept. 11 and the facts do not show this problem), then set up a fine system. Oh and don’t call if you smell what you think is a gas leak. Your nose lacks “guidelines regulating” it, and you may be wrong.
Image: WikiCommons
January 28, 2008 at 1:29 pm
Posted in: Politics
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Is There a Moral Obligation to Publish?
posted by Bruce Boyden
In the last couple of weeks NPR and Slate have reported on Vladimir Nabokov’s last, unpublished novel, which is written on index cards that are in the hands of his son, Dmitri. However, Vladimir’s dying request was not that the novel be published, but rather that it be destroyed.
This presents Dmitri with a bit of a dilemma: honoring his father’s request may mean destroying a novel that the world might love to read. Does he have any obligation not to destroy the novel? If not, then the decision should be an easy one. Presumably he has some sort of obligation to abide by his father’s wishes. If there’s no countervailing duty, then his decision is clear.
The question interests me because one prevalent, albeit self-serving, argument for making infringing music, e-book, or other downloads is that the publishers are making it too hard to get legitimate copies. In other words, the publishers have a duty to publish as widely as possible; having violated that duty, the countervailing duty not to infringe is partially offset. The nonpublishing owner has “unclean hands,” as it were, in any infringement case.
I’m skeptical that there is such a duty, but it is situations like Dmitri Nabokov’s that give me pause.
January 28, 2008 at 12:24 pm
Posted in: Culture, Intellectual Property
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Copyrighted Cease & Desist Letters: Some Reductios
posted by Frank Pasquale
Guest blogger Bruce Boyden has noted some fascinating systems challenges for copyright law. A conflict currently playing itself out online indicates the extraordinary conundrums strictly enforced copyrights could lead to.
At the Consumer Law & Policy Blog, Paul Levy describes an attorney’s effort to keep recipients of the attorney’s cease & desist (C&D) letters from posting them online. Here’s the attorney’s description of the case:
In September 2007, Dozier Internet Law . . . was targeted online by “free speech” and “public participation” interests for asserting copyright ownership rights in a confidential cease and desist letter sent to a “scam reporting site”. . . .
[A court has now] found that a copyright had been adequately established in a lawyer’s cease and desist letter. The unauthorized publication of the letter, therefore, can expose the publisher to liability. Statutory damages under the US Copyright Act can be as much as $150,000 per occurrence plus attorneys’ fees. . . . The publisher of the letter raised First Amendment and “fair use” arguments without success.
But what about doctrines akin to the fact/expression dichotomy, or the lack of copyright in government works? I’d welcome an extension of openness principles only partially recognized in Veeck. In that case, the 5th Circuit ruled that a model building code entered the public domain once it was adopted as law. Good legal arguments are effectively an interpretation of law, an effort to get the judge or jury to see the law in a certain way. To the extent they are adopted, they should be considered so inextricably intertwined with the development of law itself that they are by nature public property. For that reason I’d even be hesitant to grant copyright protection to the expression of legal arguments in particular cases (as long as there is attribution), because one’s ability to reproduce, discuss, and expose those arguments to public view directly relates to their likelihood of being adopted.
January 28, 2008 at 11:26 am
Posted in: Intellectual Property
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Is It Something In the Air? Gates on Creative Capitalism
posted by Deven Desai
My last post on Bill Strickland noted that one man has started from a hard spot, risen, and lifted many on his way up. Now Bill Gates, privileged man, ruthless business man has seen the light and preaches creative capitalism. (It kind of reminds me of the scene in the Blues Brothers when the boys see the light and decide to reunite the band. Bill is less animated but may have a little more power).
Here is a short interview from the Wall Street Journal
And here is the entire speech from Davos.
Now to be clear is there reason to question the world’s richest man who attained his position through a different philosophy? Sure. But he has new view. It is worth a listen. And yes let the pure market folks begin the parade of derision. Mr. Gates may be overstating the ideals and in some ways seems to be treading the corporate social responsibility ideas of the past. Still, he is not exactly an idiot. His new ideas rubbing against the market ideas with which he is I think familiar may yield new ways to bring about the creative capitalism he is trying to espouse. As I write this post Gates talks of MS’s philanthropy. It is hard to swallow. Many of the press stories about MS show it as purely driven to colonize the world. Gates says there is more to what MS does. Yet maybe as Google rises, Gates really wants to undercut it. Maybe he thinks he can do it with this move. Whatever the result, Mr. Gates is using Adam Smith, C.K. Prahalad, who wrote “The Fortune at the Bottom of the Pyramid, and many other sources to inform his philosophy.
January 28, 2008 at 2:09 am
Posted in: Politics
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Fascinating Site with Great Lectures
posted by Deven Desai
Mark Schultz and others have been kind enough to indulge me with tips about giving a talk. Mark not surprisingly noted that Mike Madison offers great advice on the topic via links. From Mike’s links (at the bottom of his page on student writing guidelines) I went to PresentationZen (a cool name in general and with some good material as well). That site led me to the TED Web site (“TED stands for Technology, Entertainment, Design”) and a talk by Bill Strickland. TED provides a quick bio here. In an even shorter nod that merits more, think of a man who started from the poor parts of Pittsburgh and won the MacArthur grant. As the site sums “While moonlighting as an airline pilot, Strickland founded Manchester Bidwell, a world-class institute in his native Pittsburgh devoted to vocational instruction in partnership with big business- and, almost incidentally, home to a Grammy winning record label and a world class jazz performance series.” The institute, well I can’t do that justice. But luckily the TED web site has a lecture by Mr. Strickland. It is a great talk, with great vision, and happens to have the great Herbie Hancock providing the music for the speech. So take the 35 minutes (or at least start it if you rolled your eyes and see whether you aren’t drawn in) and enjoy.
January 28, 2008 at 1:31 am
Posted in: Law School (Teaching)
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Translation of Karel Čapek’s Stories
posted by Daniel Solove
Over at Fables and Understories, Andrew Malcovsky is translating some of the untranslated stories by Karel Čapek into English.
Čapek (1890-1938) was a noted Czech author of the early twentieth century. In addition to writing early science fiction (and coining the term “robot”), Čapek has written several interesting stories about the law. For example, see Capek’s Tales from Two Pockets. It contains a wonderful story (“The Last Judgment”) where a recently-deceased man is put on trial to see if he goes to heaven or hell — the judges are human, and God is the witness. There’s also “The Crime on the Farm,” “An Ordinary Murder,” “The Juror,” and many others that explore crime, law, and justice.
Hat tip: BoingBoing
January 27, 2008 at 9:24 pm
Posted in: Law and Humanities
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