Archive for February, 2008
posted by Vanderbilt Law Review
Vanderbilt Law Review, Volume 61, Number 1 (January 2008)
Tracey E. George & Albert H. Yoon, Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging, 61 Vand. L. Rev. 1 (2008).
Alex Stein, Constitutional Evidence Law, 61 Vand. L. Rev. 65 (2008).
Katrina Miriam Wyman, Is There a Moral Justification for Redressing Historical Injustices?, 61 Vand. L. Rev. 127 (2008).
Michael J. Saks & Jonathan J. Koehler, The Individualization Fallacy in Forensic Science Evidence, 61 Vand. L. Rev. 199 (2008).
James Aaron George, Offender Profiling and Expert Testimony: Scientifically Valid or Glorified Results?, 61 Vand. L. Rev. 221 (2008).
Christopher D. Tomlinson, Changing the Rules of Establishment Clause Litigation: An Alternative to the Public Expression of Religion Act, 61 Vand. L. Rev. 261 (2008).
posted by Dave Hoffman
I just came across an interesting paper, Empirical analysis of consumer reaction to the virtual reality shopping mall , 24 Comp. Hum. Beh. 88, by Kun Chang Lee and Namho Chung. Here’s the abstract:
The Internet shopping mall has received wide attention from researchers and practitioners due to the fact that it is one of the most killing applications customers can find on the Internet. Though numerous studies have been performed on various issues of the Internet shopping mall, some research issues relating to the user interface of VR (virtual reality) shopping malls still await further empirical investigation. The objective of this study is to investigate whether the user interface of the VR shopping mall positively affects customer satisfaction in comparison with the ordinary shopping mall. For this purpose, we developed a prototype of the VR shopping mall for which the user interface consists of both 3D graphics and an avatar, using it as an experimental medium. 102 valid questionnaires were gathered from active student users of the ordinary shopping mall, and two research hypotheses were then tested to prove whether the three explanatory variables such as convenience, enjoyment, quality assurance improve in the VR shopping mall, and whether customer satisfaction is also significantly enhanced in the VR shopping mall in comparison with the ordinary shopping mall. Additionally, we conducted the PLS (partial least square) analysis to test whether the customer satisfaction is explained significantly by the three explanatory variables or not.
Not surprisingly, products in the VR malls were seen as better, and customers enjoyed shopping more. As the authors point out later in the paper, “VR is a medium capable of yielding immersion,” which should increase customers’ ability to evaluate brand quality, and thus increase sales. Indeed, the effect becomes more robust the more time you spend at the VR mall! Lee and Chung claim that their approach has “immediate managerial applications”: to me, it gives a sense of why and how we’d move toward an omni-persuasive consumer experience.
posted by Nate Oman
Theorists of contract law have generally assumed that one of the more important questions that they ought to answer is “What promises should the law enforce?” After all, no society makes all promises legally enforceable. We wouldn’t want people to be able to sue over a broken promise to do lunch would we? The result is the doctrine of consideration, a conceptual muddle that delights law professors, confuses first year law students, and — as near as I can tell — makes little or no difference in actual practice. I wonder, however, if the whole thing isn’t a solution to a pseudo-problem.
Take the promise to do lunch. We wouldn’t want people to sue over such a trivial thing, so we need some doctrine by which the lunch promise isn’t legally enforceable. But why, I ask. As it happens, a sufficiently imaginative lawyer and a Cardozo-esque judge could probably find consideration on the promise to do lunch. And yet there is very little litigation on the subject. Why? The answer is pretty obvious: lawsuits are expensive and the damage suffered by the disappointed promisee in this hypo is trivial. It doesn’t pay to sue. The obvious answer, however, has a potentially important implication for contracts, namely that the cost of litigation rather than the doctrine of consideration is the real keeper of the gate between “legal” promises and trivial promises with which the law is unconcerned. If that is the case, however, then perhaps we needn’t ask the question “What promises should the law enforce?” at all. Just say that any promise that is sufficiently definite may be sued upon. The result will not be a flood of litigation. To see why, consider the tort of battery. I am constantly subjected to un-consented-to touching when I jostle folks on the side walk. (Or at least I was before I moved to a town with more geese than people.) Yet the court system is not awash in battery cases. And so, it seems to me, it could be for promises.
posted by Nate Oman
posted by Dave Hoffman
Browsing the website of the California Law Review, I came across two rules that pose something of a problem for folks writing empirical articles:
4) CLR does not allow the use of images or graphics in our published articles.
5) CLR will publish up to five author-created charts, graphs, and/or tables. All charts, graphs, and tables must be included in the manuscript by the end of the primary editing stage.
Both of these rules may get the in the way of coherent presentation of data, and I’m not sure what motivated the law review to promulgate them. (I imagine that no one actually follows these rules, or that they are negotiable, but why have them in the first place?)
This prompts a question: have people doing empirical work had particularly good or bad experiences working with student-edited journals? From what I’ve observed, editors stay far away from mucking with data or questioning regression methods, and journals’ graphics departments aren’t yet STATA-friendly. Is that about the norm?
[Update: Michael Heise reacts here and observes that "CLR's submission requirements invite some level of risk to that Review."]
posted by Kaimipono D. Wenger
PENNumbra‘s featured works are now available at the NEW AND IMPROVED www.pennumbra.com.
The Pentagon’s recent decision to try six Guantanamo detainees for capital crimes such as “terrorism and support of terrorism” made national headlines. William Glaberson, “U.S. Charges 6 With Key Roles in 9/11 Attacks,” N.Y. Times, Feb. 11, 2008, at A1. In this latest PENNumbra Debate, Professors Amos N. Guiora, of the University of Utah, and John T. Parry, of Lewis & Clark Law School, attempt to settle the question of what sort of forum is most appropriate to try the thousands of individuals in U.S. custody who are suspected of terrorism (Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists).
Professor Guiora considers three forum options: treaty-based international terror courts, traditional Article III courts, and a “hybrid” option he calls domestic terror courts. Ultimately, Professor Guiora argues in favor of domestic terror courts, which he describes as being able to “balance the legitimate rights of the individual with the equally legitimate national security rights of the state.” He considers this option to be the most practical and expedient policy solution, necessitated by an untenable tension between the understanding “that some of the detainees present a genuine threat to American national security,” and an awareness “that indefinite detention violates constitutional principles and fundamental concepts of morality.”
Professor Parry agrees that current U.S. policy toward detainees has been “misguided,” but does not believe that innovations of the sort proposed by Professor Guiora are necessary. Rather, he suggests “that policymakers should choose Article III courts rather than hybrid courts for trials of suspected terrorists, with military courts as a fall-back option.” Professor Parry points to research that shows that “the federal government is often able to prosecute suspected terrorists in federal court,” and therefore considers alternative proposals to Article III courts to be “solution[s] in search of a problem.” Professor Parry realizes that “trial in federal court will not be possible for every suspected terrorist,” and concludes that, “[f]or people who pose a risk but whose conduct may not violate federal criminal law, prolonged preventive detention is the best choice.”
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.
posted by Nate Oman
Law review submission season is upon us, and accordingly, I have a bit of advice to law review editors: If you wish to make an offer of publication to an author, inform him or her of the fact. This makes things less awkward. Trust me, I speak from experience.
posted by Paul Secunda
I’m going Pasquale on ya (the guy is amazingly blog-prolific) and doing two posts in a row today.
Yesterday, the U.S. Supreme Court handed down its opinion in the case of Federal Express v. Holowecki, which decided the standard for what constitutes an administrative charge of discrimination under the Age Discrimination in Employment Act (ADEA). The particulars of the holding can be found here, but I wanted to focus on the non-employment discrimination law parts of the case. In particular, the administrative law discussion in Holowecki.
Not teaching Admin Law, but teaching classes like Employment Discrimination and Labor Law, in which admin law plays a large role, I’ve been vaguely keeping track of the debate about Chevron deference vs. Skidmore deference, and questions about what Skidmore deference exactly is.
In Holowecki, the Court wrote thusly on the deference the Equal Employment Opportunity Commission’s interpretation of its own regulations are due:
In our view the agency’s policy statements, embodied in its compliance manual and internal directives, interpret not only the regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they do reflect “ ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’ ” Bragdon v. Abbott, 524 U. S. 624, 642 (1998) (quoting Skidmore v. Swift & Co., 323 U. S. 134 (1944)). As such, they are entitled to a “measure of respect” under the less deferential Skidmore standard. Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461, 487, 488 (2004); United States v. Mead Corp., 533 U. S. 218, 227–239 (2001). Under Skidmore, we consider whether the agency has applied its position with consistency. Mead Corp., supra, at 228; Good Samaritan Hospital v. Shalala, 508 U. S. 402, 417 (1993). Here, the relevant interpretive statement, embodied in the compliance manual and memoranda, has been binding on EEOC staff for at least five years. See Thornton Memo, supra. True, as the Government concedes, the agency’s implementation of this policy has been uneven. See Brief for United States as Amicus Curiae 25. In the very case before us the EEOC’s Tampa field office did not treat respondent’s filing as a charge, as the Government now maintains it should have done. And, as a result, respondent filed suit before the agency could initiate a conciliation process with the employer.
These undoubted deficiencies in the agency’s administration of the statute and its regulatory scheme are not enough, however, to deprive the agency of all judicial deference. Some degree of inconsistent treatment is unavoidable when the agency processes over 175,000 inquiries a year. Id., at 19, n. 10. And although one of the policy memoranda the Government relies upon was circulated after we granted certiorari, the position the document takes is consistent with the EEOC’s previous directives. We see no reason to assume the agency’s position—that a charge is filed when the employee requests some action—was framed for the specific purpose of aiding a party in this litigation. Cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212–213 (1988).
So, is the Court breaking new administrative law ground here or this part of the same ol’, same ol’ for this part of the law? Employment discrimination minds want to know. Ethan “Chicken Man” Lieb, are you out there in cyberland? Kristin Hickman?
posted by Minnesota Law Review
posted by Paul Secunda
[modified from a similar, more technical post at Workplace Prof Blog]
“Bring out your dead.” Monty Python’s Holy Grail
Especially in Labor Law, whose irrelevancy and death its opponents have been preaching for years (shoot Solove doesn’t even have a separate post category for Labor Law, had to post this under Employment Law), I’ve always loved when something I’ve recently taught in class dovetails nicely into a current event being discussed in the popular press. Case in point: yesterday in Labor Law class, we discussed the duty to bargain in good faith under Section 8(d) of the NLRA and the per se violation of Section 8(a)(5) that occurs when a company says it has a present inability to pay a union’s bargaining demand and then refuses to substantiate those claims by giving information to the union. Under Truitt and Detroit Edison, such information is due to the union so it can carry out its role as bargaining representative of employees.
So yesterday after class, my trusty research assistant Brent Klein wrote: “the UAW went on strike at American Axle in an attempt to gain access to company financial documents. The union claims these documents are needed to justify the across the board wage and benefit cuts that American Axle is requiring to move labor contract negotiations forward. The fact that distinguishes this situation from that of the Big Three (which recently negotiated their own contracts and accepted similar cuts) is American Axle turned a $37 million profit last year, a far cry from the 38.7 billion loss suffered by General Motors last year.”
Ah, the continuing relevancy of labor law.
posted by Emory Law Journal
The 2007 Randolph W. Thrower Symposium — The New Federalism: Plural Governance in a Decentered World
Robert B. Ahdieh, From Federalism to Intersystemic Governance: The Changing Nature of Modern Jurisdiction, 57 EMORY L.J. 1 (2007)
Articles & Essays
Judith Resnik, Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 EMORY L.J. 31 (2007)
Ernest A. Young, Toward a Framework Statute for Supranational Adjudication, 57 EMORY L.J. 93 (2007)
Robert A. Schapiro, Federalism as Intersystemic Governance: Legitimacy in a Post-Westphalian World, 57 EMORY L.J. 115 (2007)
Mark Tushnet, Judicial Enforcement of Federalist-Based Constitutional Limitations: Some Skeptical Comparative Observations, 57 EMORY L.J. 135 (2007)
William W. Buzbee, Interaction’s Promise: Preemption Policy Shifts, Risk Regulation, and Experimentalism Lessons, 57 EMORY L.J. 146 (2007)
Charles H. Koch, Jr., The Devolution of Implementing Policymaking in Network Governments, 57 EMORY L.J. 167 (2007)
David J. Bederman, Diversity and Permeability in Transnational Governance, 57 EMORY L.J. 201 (2007)
Robert B. Ahdieh, From Federal Rules to Intersystemic Governance in Securities Regulation, 57 EMORY L.J. 233 (2007)
Jessica Leigh Rosenthal, The Interactive Process Disabled: Improving ADA and Strengthening the EEOC Through the Adoption of the Interactive Process, 57 EMORY L.J. 247 (2007)
Holly M. Sharp, The Day the Music Died: How Overly Extended Copyright Terms Threaten the Very Existence of Our Nation’s Earliest Musical Works, 57 EMORY L.J. 279 (2007)
posted by Bruce Boyden
seems wayyyy too close for comfort to this:
posted by Jaya Ramji-Nogales
Quick — take this test:
(1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?
(2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?
(3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake?
(see below for answers)
In an interesting new article, Blinking on the Bench: How Judges Decide Cases, Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich report the answers of 252 Florida trial judges to this Cognitive Reflection Test (CRT), which is designed to have a “correct answer that is easy to discern upon reflection, [as well as] an intuitive–but incorrect–answer that almost immediately comes to mind.” The judges scored, well, slightly better than the average undergraduate student subject at Michigan and slightly worse than the average undergraduate student subject at Harvard. Almost one-third of these judges didn’t answer any of the questions correctly; another third answered one question correctly; less than a quarter of the judges answered two questions correctly; and only one seventh answered all three correctly. Their mean score of 1.23 compares unfavorably to student subjects at MIT (2.18), Carnegie Mellon (1.51), and Harvard (1.43).
So what does this all mean? Looking to this data alongside other studies, the authors argue that judges often make decisions intuitively rather than deliberatively. This is not always a problem; indeed the authors note that the “conversion of deliberative judgment into intuitive judgment might be the hallmark of expertise.” But, judges who respond intuitively, as the test results show, might make inaccurate decisions. The paper concludes with several suggestions as to how to limit “bad” intuitive decisionmaking –more time and resources, requiring written opinions, training and feedback, use of scripts and checklists, and separating out decision-making authority– very similar to suggestions that my co-authors and I made in our recent article, Refugee Roulette, which describes disparities in decision-making in the asylum process. Sounds like we might need to stop those asylum adjudicators from blinking on the bench . . .
posted by Daniel Solove
Chris Hoofnagle just released a new report entitled Measuring Identity Theft at Top Banks. In the report, he ranks the top 25 US banks according to their relative incidence of identity theft. The report is based on consumer-submitted complaints to the FTC where the victim identified an institution.
In a previous paper called Identity Theft: Making the Unknown Knowns Known, Chris argued that there should be mandatory public disclosure of identity theft statistics by banks. Since the financial institutions don’t currently release such data, we have no idea which institutions are being more effective at reducing identity theft than others.
For his new paper, Chris made a FOIA request last year to the FTC for two years of consumer complaint data. The FTC found it too burdensome to release two years’ worth of data, so “the request was limited to three randomly-chosen months in 2006, January, March, and September. These months included data from 88,560 complaints, with 46,262 names of institutions were identified by victims.” Chris’s paper is based on an analysis of this data.
From the abstract:
There is no reliable way for consumers, regulators, and businesses to assess the relative incidence of identity fraud at major financial institutions. This lack of information prevents more vigorous competition among institutions to protect accountholders from identity theft. As part of a multiple strategy approach to obtaining more actionable data on identity theft, the Freedom of Information Act was used to obtain complaint data submitted by victims in 2006 to the Federal Trade Commission. This complaint data identifies the institution where impostors established fraudulent accounts or affected existing accounts in the name of the victim. The data show that some institutions have a far greater incidence of identity theft than others. The data further show that the major telecommunications companies had numerous identity theft events, but a metric is lacking to compare this industry with the financial institutions.
This is a first attempt to meaningfully compare institutions on their performance in avoiding identity theft. This analysis faces several challenges that are described in the methods section. The author welcomes constructive criticism, suggestions, and comments in an effort to shine light on the identity theft problem.
This is a fantastic endeavor, as more information on how institutions are protecting against identity theft is sorely needed. Chris admits that his study has some limitations and could be improved if financial institutions would supply more information to the public. But based on the information Chris could find out, this report is quite revealing. Hopefully, it will spark more transparency from financial institutions in the future.
Here is one of many charts in the paper. The chart below is of incidents of identity theft relative to the size of each institution.
posted by Frank Pasquale
Television has an extraordinary abilty to drain the substance from policy–so much so that even after their 20th debate, the difference between the Democratic candidates on health care has been shrouded in slippery charges and countercharges. Fortunately, Russell Korobkin has an excellent commentary on the Clinton/Obama mandate controversy. Korobkin has a deep understanding of both managed care and the political dynamics at stake here; his diagnosis follows:
Whether the government should require everyone to purchase health insurance is a difficult issue about which reasonable people may differ. (Full disclosure: I am an unpaid member of a health care policy advisory committee for the Obama campaign, but I personally favor individual mandates as part of comprehensive health care system reform). But the sound argument to be made in favor of mandates is very different from the one reiterated daily by Clinton. . . . Clinton could reasonably argue that, as president, she would need to accept an individual mandate in order to win Congressional backing for market reforms and subsidies that would truly help the uninsured. Instead, she chooses to claim that mandates are themselves the goal. . .
I have heretofore refrained from commenting on the controversy because of the diversity of circumstances of the uninsured. Mandates can be a good idea for the more well-off uninsured, but raise many difficulties for those lower on the income scale.
posted by Daniel Solove
Over at Conglomerate, David Zaring notes that on SSRN many of his papers and the papers of others are showing up as being connected to the 2003 Helsinki Meetings. Apparently, scores of papers are being listed this way. David writes:
My colleague Andrea Matwyshyn noticed that a couple of her papers up on SSRN had been retagged as published during the EFMA 2003 Helsinki Meetings. So has one of mine. So has one of Gordon’s. . . . Neither Andrea nor I were at the EFMA 2003 Helsinki meetings, so we can’t say whether we would have seen Bernie or Gordon there, but we are beginning to think something fishy is going on.
Many of my papers are also being listed as being at the 2003 Helsinki Meetings. I don’t recall these meetings, but it must have been one heck of a conference! David wonders whether SSRN has been hacked. Clearly something is wrong over at SSRN.
posted by Frank Pasquale
There’s so much free content online that it’s often hard for me to justify buying magazines. Critics like William Skidelsky suggest that the free blogosphere is leading to the slow strangulation of serious book reviewing. But I think the two can coexist–and I’m more likely to support the print publications that support the free blogosphere.
For example, I recently subscribed to two print publications (The Atlantic and Bookforum). I did so less to purchase information than to thank each. Here’s a few reasons why I think extending the Radiohead model to print might work.
As for Bookforum, I’d never seen a print copy of their publication, and I was wary about buying it even when I heard about it online. But when I found they had the enormous good sense to sponsor Alfredo Perez’s blog (formerly known as politilcaltheory.info), I wanted to support them in some way. Perez has an uncanny ability to tie together disparate sources of information from all over the web into loosely themed posts. Sometimes there’s no theme at all, but every day he comes up with links to hidden gems.
posted by Paul Secunda
This year, my last, at Ole Miss Law School, I was asked to Chair an ad hoc faculty committee on law school rankings. Like many law schools, ours has been flustered by the seemingly arbitrary way that our school has fluctuated in the U.S. News & World Report yearly rankings. And like others, we wanted not to care about such capricious things, but alas, others (including prospective students, current students, and alumni to name a few) did care. So as an institution we (myself and four faculty committee members) set out to study the factors one by one and try to determine where we could change policies, add money, etc., to constructively move factors that we had some control over.
What struck me during last semester as the committee met on a bi-weekly basis was that some schools that were perpetually labeled elite (by being in the First Tier) really did not have that many prolific or productive scholars. On the other hand, the opposite was also true: many a Third and Fourth Tier (though certainly not all) were bustling with faculty activity and innovation. So what was going on? Why wasn’t any current ranking system capturing these characteristics of the law school market?
Though I have not figured out the answer to this question, Inside Higher Ed reports today that The Green Bag Journal plans to put law school’s extravagant claims about having the best and greatest faculties in the universe to the test:
On their Web sites and in the other marketing materials that law schools distribute to raise their profiles — sometimes derided as “law porn” — virtually every law school boasts of having a faculty made up of stellar scholars, brilliant teachers and selfless public servants. “We continue to add depth to our already diverse and multifaceted faculty — excellent teachers whose high-quality research impacts leading academic and public policy issues,” reads the Web site of Northwestern University’s law school . . . .
But how are applicants — for admission and/or jobs — to know whether the schools are living up to their promises on faculty quality, that all-important indicator of the institutions’ overall quality? asks the Green Bag, which describes itself as “an entertaining journal of law.” . . . .
posted by Northwestern University Law Review
This week, the Northwestern University Law Review Colloquy published a response by Professor Scott Dodson regarding the Supreme Court’s decision in Bowles v. Russell. He responded to critiques by Professor Elizabeth Chamblee Burch, Mr. E. King Poor, and Professor Perry Dane and defended his position that the Court disrupted prior precedent in Bowles. To see all of the pieces in the series, click here.
Last week, Professor Howard M. Wasserman responded to Professor Dodson’s Article In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 55 (2008). His Essay examines the connections between jurisdiction, merits, and procedure, when the connections come into play, and how to separate them out.
On February 11, Professor Robert L. Glicksman participated in the ongoing debate on climate change legislation. He discussed which federal agencies should be responsible for implementing climate change regulation, the proper measure of discretion that Congress should afford these various agencies, and whether the regulation should trump state and local initiatives. To see all pieces in the series, click here.
For more, go to the Colloquy archives page, and remember to check back each week for new content.
posted by Daniel Solove
Part I of our interview explored the role of law in the show, exploring topics such as the legal system, lawyers, trials and tribunals, torture, necessity vs. moral principles, and deference to the military.
Part II of our interview examined the political system and economic issues.
In Part III of our interview (the final part in this series), we discuss the cylons. How do the humans view the cylons? As mere machines? As quasi-human? Are the humans heading toward a recognition of more humane treatment of the cylons? Why did the cylons choose to try to annihilate the humans? How do the cylons govern themselves? What role does the cylons’ religion play in all this? We explore these questions and more, including what political and philosophical books most influenced Ron and David in their creation of the show. We learn why Adama changes his views about Boomer and accepts her as a person. And we try to coax out spoilers for the upcoming season.