Archive for July, 2008

Should (legal) academics use Facebook? (Part 527 of a continuing series.)

posted by Kaimipono D. Wenger

True, the “should academics use Facebook?” article is fast becoming passe. (See also: “should academics blog?”, “should academics use MySpace?”, and “should academics navel-gaze?”) However, a recent post on the HNN (History News Network) is a particularly good example of the species. In a discussion of whether historians should use Facebook, historian Jesse Lemisch sets out some helpful analysis:

Why should historians be on Facebook? I think it has the potential to be an electronic version of the halls of the AHA: a place of lively and utterly informal talk about what historians are doing and saying, and what’s going on in their lives. Just as Facebook threatens to replace college reunions, it can constitute something like a professional meeting, between professional meetings. (Note that “something like”: I have no desire with this proposal to replace professional meetings, but rather to extend them.)

I value the papers given at the AHA and OAH, but I generally come away from these meetings as well educated by conversations in the halls, and while prowling the book exhibits. Somebody has mounted a stupid and uncomprehending attack on me in a book whose galleys are available at booth 432. And there he is, at booth 927, hiding, but available for animated conversation. Here’s somebody you haven’t seen in years, and, thank goodness, she has a name badge. And, you find, she is doing fascinating work. Here is somebody who responds to regards to the spouse with a facial expression that tells you immediately that your information is no longer accurate. And here are historians of all stripes, and information about new sources and new work and controversies not yet erupted. And so on: readers of HNN know what happens in the halls of the AHA. For better or worse, all these things can happen on Facebook.

This sounds like an admirable enough goal. Why not chat about books, vacations, restaurants, and whatever else on Facebook?

There are interesting parallels to law. For instance, of conversations I’ve had at AALS, I’d say maybe a quarter of them have been purely law conversations of the type it would be hard to have online. But the majority have been general-topic chats of one kind or another. Ideally, Facebook and sites like it can facilitate the broad, cocktail-party mingling that helps keep law professors — a notoriously socially awkward group — connected and in general contact with one another. In theory, this could be good. (On the other hand, it’s awfully tricky to gossip on a public forum.) Right? What’s not to like about it?

I would write a lot more about how law professors could use Facebook, but duty calls. II have an urgent appointment to attack Nate’s zombie with my vampire before my daily attacks expire. Then, perhaps after a few games of Word Twist, I’ll be back with Part 2.

  July 31, 2008 at 8:03 pm   Posted in: Social Network Websites   Print This Post   3 Comments

The History of Contract Law and Bibliographic Angst

posted by Nate Oman

My research assistant recently asked me if I could suggest a good book to read on the history of contract law. I had him for contracts last spring, I talk a fair amount about history in my class, and he’s interested (or at least is pretending to be to make me feel better). I found myself a bit tongue tied. Were he English, the answer to the question would be easy enough. Read P.S. Atiyah, The Rise and Fall of Freedom of Contract, A.W.B. Simpson, A History of the Common Law of Contract, or David Ibbetson, A Historical Introduction to the Law of Obligations. Indeed, given that the history of American contract law is in part at least the history of English contract law, I mentioned all of these books but then dismissed them. They aren’t really what he was looking for. He wants something a bit more recent and American with a bit less emphasis on the medieval writs and the seventeenth century revolution in assumpsit. So what to suggest?

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  July 31, 2008 at 12:00 pm   Posted in: Contract Law & Beyond, History of Law, Law School (Teaching)   Print This Post   7 Comments

Emory Law Journal 57:4 (2008)

posted by Emory Law Journal

Emory Law Journal, 57:4 (2008)

Articles

Thomas A. Piraino, Jr., The Antitrust Analysis of Joint Ventures after the Supreme Court’s Daugher Decision, 57 EMORY L.J. 735 (2008).

Frederick Tung, The New Death of Contract: Creeping Corporate Fiduciary Duties for Creditors, 57 EMORY L.J. 809 (2008).

DEBATE: Saving the World with Corporate Law?

Kent Greenfield, Proposition: Saving the World with Corporate Law, 57 EMORY L.J. 948 (2008).

D. Gordon Smith, Response: The Dystopian Potential of Corporate Law, 57 EMORY L.J. 985 (2008).

Comments

Jordon T. Stringer, Criminalizing Voter Suppression: The Necessity of Restoring Legitimacy in Federal Elections and Reversing Disillusionment in Minority Communities, 57 EMORY L.J. 1011 (2008).

Elisabeth Bassett, Reform Through Exposure, 57 EMORY L.J. 1049 (2008).

  July 31, 2008 at 9:33 am   Posted in: Law Rev (Emory)   Print This Post   One Comment

Criminalizing Risky Sexual Behavior: Some More Evidence

posted by Scott Burris

The cornerstone of the argument against treating unprotected sex as a crime is that the frame is simply inapposite. Yes, it’s logical; one can easily fit sexual behavior with an HIV risk into the same syllogisms as brawling with a knife, but as I’m sure old OWH would say at just this point, the sex life of law has not been logic but experience. At the same time, the argument that criminal law just doesn’t fit is hard to frame, or prove, empirically. In this post, I thought I would briefly summarize the empirical evidence on two narrower points: that criminalization of risky sexual behavior does not protect public health, and may hurt it.

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  July 30, 2008 at 5:20 pm   Posted in: Criminal Law, Health Law   Print This Post   One Comment

Pro Bono? Cui Bono?

posted by Sarah Lawsky

Some large law firms require all their attorneys to do a certain amount of pro bono work. But a better approach might be to require the attorneys either to do a certain number of pro bono hours or to donate a certain amount of money to public interest law firms. (The law firm and lawyer could together donate the value of the lawyer’s time and the amount the firm would have spent on support staff, copying, tech support, and so forth had they taken on the project.) And perhaps an even better approach would be for law firms to do away with pro bono work altogether and just donate money. So why doesn’t this happen? Why services instead of money?

After the jump, an explanation of why money might be better, and some speculation about why law firms donate services.

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  July 30, 2008 at 4:07 pm   Posted in: Uncategorized   Print This Post   16 Comments

Thanks and Goodbye

posted by Max Minzner

Today is my last day guest blogging, so I want to thank Dan and the rest of the staff here at Concurring Opinions for allowing me to spend the last month here. Let me end with one last post on empirical work and the law. Andrew Gelman makes the nice point here about the difference in empirical work in political science and psychology — psychologists run experiments while political scientists analyze data that already exists. For the most part, legal empiricists are far more like political scientists than psychologists. True legal experiments are few and far between. Of course, this fact does not prevent good work from being done. As an example of one of the most interesting and important pieces of work on the life of real lawyers, all law students, prospective law students, and law professors should be following Bill Henderson’s discussion of the bimodal nature of lawyer salaries.

  July 30, 2008 at 2:36 pm   Posted in: Uncategorized   Print This Post   No Comments

SEC on the “Performance” of Standards

posted by Lawrence Cunningham

Is it useful to ask which performs better, the metric system or the imperial system of measurement? Are meters better than miles? Does one system offer more refined tools to achieve precise results? How useful is it to ask, which performs better, German or Russian? Must it depend on purpose, such as for philosophy or literature? The SEC proposes to ask a version of such comparative performance questions about international accounting versus US accounting at a hastily-called roundtable next Monday.

The SEC’s purpose in holding the roundtable is vague, with its Chairman, Chris Cox, saying it is intended to give the SEC “valuable insights” about how international versus US accounting “performed” amid current market “turmoil” and “pressures.” The roundtable occurs during intense, ongoing debate within the US about whether and on what terms the US should switch from US accounting to international accounting. Chairman Cox and the SEC make it very clear that they favor moving to international standards as rapidly as possible, while investors and others have expressed strong concern about this.

The calling of this roundtable and this framing of the discussion are therefore both interesting and important. Accounting standards are not usually evaluated in terms of their “performance.” They are certainly not evaluated with reference to a particular market environment, such as one in turmoil or under pressure. Accounting standards usually are evaluated in terms of some ultimate purpose, chiefly whether they are reasonably calculated faithfully to capture and fairly report on underlying economic activity. In the US, moreover, that assessment is made according to how useful resulting applications are to investor decision-making.

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  July 30, 2008 at 11:23 am   Posted in: Securities   Print This Post   2 Comments

Shake Down Entertainment, Ltd.

posted by Dave Hoffman

That’s the name of a corporation (or LLC?) created by members of the bizarre Baltimore gang profiled in this new article from the Washington Monthly. As reporter Kevin Carey writes, the incorporation helped to justify a RICO charge, which in turn led to the defendants adopting white supremacist arguments about the invalidity of the 14th Amendment as a defense to their murder charges. U.S. District Judge Davis didn’t adopt defendants’ view of the world. It’s a good lesson for potential crimelords in our audience: there’s nothing wrong with naming your gang corporation “Sweetness and Light Inc.” Points, incidentally, to the reader who comes up with additional examples of badly chosen corporate names.

The story reminds me a bit of this post I wrote on dockets and odd legal theories floating around. It seems that just as there is a world of undernews, there is a world of underlaw. Underlaw is that set of odd legal theories, strange filings, and misconstrued assertions of authority that laypeople pass to each other on the web and especially (as Carey writes) in prison cells. Although lawyers and judges scoff at these theories when they appear in Court, they are affecting the lives of those that believe them in ways we can only begin to imagine.

(H/T, with good analysis, Scott D.)

  July 30, 2008 at 11:01 am   Posted in: Corporate Law   Print This Post   2 Comments

Fourth Annual Conglomerate Junior Scholars Workshop

posted by Dave Hoffman

Head on over to the ‘Glom, which is hosting the Fourth Annual Junior Scholars Workshop. One paper this week is about governance of VC-backed firms, and the lineup of commentators is terrific. I’ll be dropping by next week, to talk about James Park’s paper on materiality.

The JSW is always a substantive, interesting, conference, and one of the few “general interest” corporate law forums out there. Congratulations to Christine Hurt and her fellow bloggers, who have once put together a great event.

  July 30, 2008 at 12:01 am   Posted in: Conferences, Corporate Law   Print This Post   One Comment

When To Turn Down a Tenured Law Professorship Job Offer

posted by Daniel Solove

There’s a very interesting NY Times article about Barack Obama’s time teaching law at University of Chicago Law School. From the article:

Soon after [losing in the primary for a seat in the U.S. House of Representatives], the faculty saw an opening and made him its best offer yet: Tenure upon hiring. A handsome salary, more than the $60,000 he was making in the State Senate or the $60,000 he earned teaching part time. A job for Michelle Obama directing the legal clinic.

Your political career is dead, Daniel Fischel, then the dean, said he told Mr. Obama, gently. Mr. Obama turned the offer down. Two years later, he decided to run for the Senate. He canceled his course load and has not taught since.

Another interesting fact:

Mr. Obama arrived at the law school in 1991 thanks to Michael W. McConnell, a conservative scholar who is now a federal appellate judge. As president of The Harvard Law Review, Mr. Obama had impressed Mr. McConnell with editing suggestions on an article; on little more than that, the law school gave him a fellowship, which amounted to an office and a computer, which he used to write his memoir, “Dreams From My Father.”

The article also has posted some of Obama’s class materials.

  July 29, 2008 at 10:25 pm   Posted in: Law School, Law School (Hiring & Laterals), Politics   Print This Post   One Comment

The Use and Misuse of Social Science (herein of “verbal violence”)

posted by Nate Oman

In his most recent post, Frank links to his approving reference to Ben Barres’s claim that “When faculty tell their students that they are innately inferior based on . . . gender they are crossing a line that should not be crossed –the line that divides responsible free speech from verbal violence.” So does my last post, suggesting greater variability in results on math tests based on gender amount to such a claim? Are those who say such things asserting that women are inherently inferior at mathematics?

No. I don’t think so.

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  July 29, 2008 at 10:24 pm   Posted in: Empirical Analysis of Law, Feminism and Gender   Print This Post   7 Comments

Making the Blogosphere More Welcoming for Women

posted by Frank Pasquale

Given Nate’s post today and my earlier one on Ben Barres’s work, I found this article on the BlogHer conference interesting. It observes a persistent gender imbalance in online life and suggests the conference may be helping to solve it:

Over and over, women talked about the importance of the community at BlogHer. Sarah Dopp, who works in the technology industry and keeps a blog at doppjuice.com, said she had come for “a big hit of inspiration.” Since attending the conference two years ago, she said, “My writing is better, my blog is better, I’m more connected.”

Ann Bartow has done a lot to increase that sense of community within legal blogs; here’s a good listing of women law professors’ blogs that may be occluded by the ranking tools now standard in the blogosphere. I agree with Ann that these ranking tools have many biases, but as with so many other rankings we’re familiar with, it’s very difficult to opt out of playing the game they foist upon us.

  July 29, 2008 at 7:26 pm   Posted in: Feminism and Gender   Print This Post   One Comment

NYT v. WSJ on Girls and Math

posted by Nate Oman

Consider the following two characterizations of the recent study published in Science regarding gender and performance on standardized math tests. According to the NYT:

The researchers looked at the average of the test scores of all students, the performance of the most gifted children and the ability to solve complex math problems. They found, in every category, that girls did as well as boys.

The WSJ, however, told an apparently different story:

The researchers, from the University of Wisconsin and the University of California, Berkeley, didn’t find a significant overall difference between girls’ and boys’ scores. But the study also found that boys’ scores were more variable than those of girls. More boys scored extremely well — or extremely poorly — than girls, who were more likely to earn scores closer to the average for all students.

So who is right? What does the study itself, actually say?

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  July 29, 2008 at 3:52 pm   Posted in: Culture, Education   Print This Post   9 Comments

Money-Driven Medicine, Again

posted by Frank Pasquale

One of the tenets of the “consumer-directed” health care movement is that consumers need more “skin in the game” of health care–the bigger share of care they pay for, the more they’ll economize (perhaps by avoiding genetic predispositions to illness?). But I don’t think this is the kind of skin they had in mind (from Natasha Singer’s article “As Doctors Cater to Looks, Skin Patients Wait“):

[D]ermatologists nationwide are increasingly hiring nurse practitioners and physicians’ assistants, called physician extenders, who primarily see medical patients, according to a study published earlier this year. . . “What are the physician extenders doing? Medical dermatology,” Dr. Allan C. Halpern, chief of dermatology at Memorial Sloan-Kettering Cancer Center in Manhattan, said in a melanoma lecture at a dermatology conference this year. “What are the dermatologists doing? Cosmetic dermatology.”

According to a presentation for doctors from Allergan, the makers of Botox, a medical dermatology practice might have a net income of $387,198 annually, but a dermatologist who decreased focus on skin diseases while adding cosmetic medical procedures to a practice could net $695,850 annually. The same material advises doctors to “identify and segment high priority customers.”

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  July 29, 2008 at 8:06 am   Posted in: Health Law   Print This Post   3 Comments

LILO (with apologies to the Kinks)

posted by Sarah Lawsky

Over on PrawfsBlawg they are talking about teachers who sing in class. I could never sing in class (I sang two lines of a song in the car the other day and my partner looked at me with a combination of horror and pity), but I will admit that I have been known to write a tax-related song or two. Unfortunately, the following song is funny only if you have a fairly good understanding of lease-in-lease-out transactions and you know the song Lola, and it’s probably not funny even then. That said…

LILO

(with apologies to the Kinks)

I heard about this thing from a guy I know

Where the cash goes around in a circular flow

He emailed me and outlined the plan

I asked for its name and he wrote right back, it’s called LILO

L-I-L-O LILO li-li-li-li LILO

I hadn’t yet seen at that particular time

Rev. Rul. 2002 dash 69

Oh my LILO li-li-li-li LILO

Well I’m not dumb but I didn’t know

Why it looked like a lease, but we’d have no control

Oh my LILO li-li-li-li LILO li-li-li-li LILO

Well I drank black coffee and read all night

Under electric candlelight

I picked the Code up, sat it on my knee

I thought, “This thing’s just too good to be!”

Well I’m not the world’s most rule-loving guy

But substance over form meant I couldn’t fall for that LILO

li-li-li-li LILO li-li-li-li LILO

LILO li-li-li-li LILO li-li-li-li LILO

I pushed it away

I walked to the door

I fell to the floor

I got down on my knees

Then I looked at it and it at me

Well that’s the way that I want it to stay

And I just wish it would go away, oh my LILO

A loan is a lease and a lease is a loan

It’s a mixed-up muddled-up shook-up Code thanks to LILO

li-li-li-li LILO

Well I’d left school just a week before

And I’d never even read a reg before

But LILO looked good, fit the Code to the letter

And I thought, this’ll make the client like me better!

Well I’m not the world’s most ethical man

But I know what I am and I’m know I’m no sham, unlike LILO

li-li-li-li LILO li-li-li-li LILO

LILO li-li-li-li LILO li-li-li-li LILO

(Concurring Opinions guys, I apologize! I apologize! Please don’t kick me off the blog!)

  July 28, 2008 at 9:01 pm   Posted in: Uncategorized   Print This Post   5 Comments

Welcome to the Blogosphere. . .

posted by Frank Pasquale

Nan Hunter’s Hunter of Justice, and Michael Heller’s Gridlock Economy. It’s great to see scholars at the top of their fields continue to join the conversation.

  July 28, 2008 at 8:49 pm   Posted in: Blogging   Print This Post   No Comments

No Place to Hide. . . .

posted by Frank Pasquale

Since privacy is my theme today, here’s a nugget from the DOJ Hiring scandal report unearthed by Brian Leiter:

We found that Goodling’s Internet research on candidates for Department positions was extensive and designed to obtain their political and ideological affiliations. . . .[S]he had attended a seminar at the White House Office of Presidential Personnel and received a document entitled “The Thorough Process of Investigation.” The document described methods for screening candidates for political positions and recommended using www.tray.com and www.opensecrets.org to find information about contributions to political candidates and parties. The document also explained how to find voter registration information. In addition, the document explained how to conduct searches on www.nexis.com, and included an example of a search string that contained political terms such as “republican,” “Bush or Cheney,” “Karl Rove,” “Howard Dean,” “democrat!,” “liberal,” “abortion or pro-choice.” . . .

The key question now is: what’s the remedy? Is it only possible to right this wrong by balancing several years of rightward bias with several years of leftward bias? There is a real conundrum here: if the department merely reverts to neutrality after several years of bias, there’s little deterrent against this kind of conduct in the future. . . . though this diagram from Slate suggests that people other than the immunized Goodling may be in trouble here.

  July 28, 2008 at 8:26 pm   Posted in: Politics   Print This Post   9 Comments

Bleg: Medical Credit Scoring in Hospitals

posted by Frank Pasquale

Businessweek has been doing a very good job covering one of the most important–and underreported–stories in contemporary health care–”the transformation of medical bills into consumer debt.” It would not be surprising to me to find that many hospitals are taking the next logical step here into “consumer-directed health care” and scoring “customers” according to their ability to pay. Therefore I’m happy to post this request for more information on the topic from reporter Robert Berner:

I am doing research about the growing trend among hospitals of using medical credit scoring. Many hospitals are using scoring at the point of intake to gage self-pay patients and underinsured patients’ ability and willingness to pay their bills. I am exploring how scoring may be impacting care in emergency rooms, in hospital admissions, in doctor run clinics and specialty hospitals, etc. If you have insight on this topic or examples, I would like to talk to you. Please email me at robert_berner@businessweek.com or call me directly at 312-233-7944.

If you care about issues like this, please pass it on to doctors or administrators you know!

  July 28, 2008 at 8:11 pm   Posted in: Health Law   Print This Post   No Comments

Saved by Pervasive Surveillance

posted by Frank Pasquale

At 26 seconds into this video, a policeman appears to tackle a bicyclist without provocation. . . . and guess who was arrested after the incident?

Yes, you guessed it, the bicyclist. If the moment hadn’t been caught on tape, it’s quite possible the victim here would be facing criminal charges, and the policeman in question could be plotting another assault.

More prosaically on the transportation front, car insurance firms are now offering big discounts to drivers who install technological devices that monitor driving moment-by-moment.

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  July 28, 2008 at 8:00 pm   Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Privacy (Law Enforcement)   Print This Post   2 Comments

Measuring Law School Teaching (Continued)

posted by Dave Hoffman

Thanks to various commentators (and Professor Carrell) for sending me this paper measuring the effect of teaching on students’ performance. As I’ve previously written, the paper (and its related literature) provides reasons to question assumptions about the relationship between student satisfaction and learning.

Two paragraphs from the paper, which I’ve now read, stand out:

Results show the less experienced and less qualified(by education level) calculus professors produce students who perform better in the contemporaneous course being taught, however, these students perform significantly worse in the follow-on advanced mathematics-related courses. Although, we can only speculate as to the mechanism by which these effects operate, one might surmise that the less educated and experienced instructors may teach more strictly to the regimented curriculum being tested, while the more experienced professors broaden the curriculum and produce students with a deeper understanding of the material. This deeper understanding results in better achievement in

the follow-on courses.

Ah, we’ve finally found a good potential defense of tenure: it enables brave souls to deviate from bad, top-down, curricular mandates! This section highlights a key difference between law school teaching and the undergraduate instruction studied in the paper: law school teaching isn’t generally guided by a centrally-administered curriculum. Unlike instructors at the college level, law professors are almost never told at any level of useful detail what their courses should cover. (I’ve heard odd rumblings that even attempts to coordinate instruction across sections would impinge on academic freedom!) This difference makes it hard to study law school teaching across professors, and makes it all but impossible to replicate this study in the law school classroom.

Assuming, however, that the study has general implications, the finding about teaching evaluations is of particular interest:

[P]rofessor evaluations in the initial courses are very poor predictors of student achievement in the follow-on related courses. Of the 27 coefficients [of achievement studied] 13 coefficients are negative and 14 are positive, with none statistically significant at the 0:05 level. Again, results for question 22, which asks students, “Amount you learned in this course was:” show that a 1-point (equivalent to 1:8 standard deviations) increase in the mean professor evaluation resulted in a statistically insignificant .014, -.008 and -.018 respective standard deviation change in calculus, science, and humanities follow-on related course achievement. Since many U.S. colleges and universities use student evaluations as a measurement of teaching quality for academic promotion and tenure decisions, this finding draws into question the value and accuracy of this practice.

A commentator to my previous post suggested that this result suggests a problem in the grading system. I agree! Professors aren’t being graded by students on indices relevant to how well the students are learning. Jason Solomon’s use of self-reported student gains in analytic ability scores in measuring “educational quality” thus appears to potentially mislead about how well law schools are doing.

I’ve suggested in the past that we ought to look for alternative ways of measuring teaching that go beyond student satisfaction. A nice approach, if the data were available, Or, as Bill Henderson (and others) have argued, you could focus on employment outcomes. Either of these alternatives, it seems to me, would dominate over student satisfaction metrics, which are (at best) a very bad proxy for whether law professors are doing their job, which is to model & instill in students a lawyer’s situation sense.

(Photo Credit: Wikicommons)

  July 28, 2008 at 7:30 pm   Posted in: Education, Empirical Analysis of Law, Law School (Teaching)   Print This Post   No Comments

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