Archive for November, 2008
posted by University of Pennsylvania Law Review
PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review and a debate.
posted by Danielle Citron
As U.S. News and World Report highlights, civil rights advocates now find themselves in the exciting position of suggesting policy changes to an incoming administration whose Commander in Chief really understands civil rights issues. James Rucker, executive director of ColorOfChange.com, an online community devoted to black politics, notes: “Now we’re moving from hypothetical mode to people saying we have to figure out what our agenda is so we can present it to President Obama.” To be sure, meaningful equality for members of traditionally disadvantaged groups will require policy changes. But it also can, and should, be pursued by enforcing existing law, something the prior Administration had difficulty doing. As Professor Helen Norton testified before Congress last year, the Bush Administration had an appalling record in its enforcement of civil rights laws, including those involving employment discrimination, as compared to previous administrations. And the Obama Administration will undoubtedly reverse that course: at the head of the EEOC transition team is Helen Norton, who served as the Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice during the Clinton Administration, where she managed the Civil Rights Division’s Title VII enforcement efforts. Her most recent testimony before the U.S. House of Representatives Committee on Education and Labor Subcommittee on Health, Employment, Labor, and Pensions at a hearing concerning workplace discrimination demonstrates how exciting her appointment as head of the transition team for the EEOC is.
posted by Mark Edwards
The disjointed and ad hoc reaction of the Bush administration to this mortgage crisis stands in stark and disappointing contrast to the systemic reaction of the Roosevelt administration to the last similar mortgage crisis. Henry Paulsen seems to have been assigned the role of Mary Bailey during the bank run scene from It’s a Wonderful Life: rushing into the room with a wad of cash, but with little thought of the future.
The Obama administration would be wise to approach the crisis much as the Roosevelt administration did – as a set of difficulties each requiring a specific institutional tool dedicated to its correction, which should function together as a whole to create a new (and hopefully this time, lasting) housing finance superstructure.
To contrast the Bush and Roosevelt approaches, it is useful to recall the ingenious public/private hybrid housing finance system the Roosevelt administration developed. Consider:
posted by Frank Pasquale
Former Reagan speechwriter Peggy Noonan recently commented on a strange incongruity in the current economic downturn–everyone she sees seems to be doing all right:
One of the weirdest, most perceptually jarring things about the economic crisis is that everything looks the same. We are told every day and in every news venue that we are in Great Depression II, that we are in a crisis, a cataclysm, a meltdown, the credit crunch from hell, that we will lose millions of jobs, and that the great abundance is over and may never return. . . . And yet when you free yourself from media and go outside for a walk, everything looks . . . the same. . . . [For example,] [e]veryone’s still overweight.
posted by Frank Pasquale
Jeffrey Rosen had an excellent article on “Google’s Gatekeepers” today, focusing on the company’s legal and policy decisions about what content to index. For example, after a group of videos mocked Turkey’s founder, Google’s deputy general counsel Nicole Wong
decided that Google . . . would prevent access to videos that clearly violated Turkish law, but only in Turkey. . . [Then] a Turkish prosecutor made a sweeping demand: that Google block access to the offending videos throughout the world, to protect the rights and sensitivities of Turks living outside the country. Google refused, arguing that one nation’s government shouldn’t be able to set the limits of speech for Internet users worldwide. Unmoved, the Turkish government today continues to block access to YouTube in Turkey.
China’s government, controlling access to a much larger market, may be getting more deference. (For visual evidence, check out pages 9-10 of James Grimmelmann’s The Google Dilemma).
Rosen’s article focuses on the oddity of having one company’s legal team make so many decisions about effective access to information. He also mentions what may become a growing trend in the area–speech-loving nations’ efforts to leverage their influence over Google to force it to index and rank materials detested by censors. Disclosure is a first step, and “some House Democrats and Republicans have introduced a bipartisan bill called the Global Online Freedom Act [GOFA], which would require that Internet companies disclose to a newly created office in the State Department all material filtered in response to demands by foreign governments.” Though team Obama-Schmidt may keep this initiative on the backburner in the US, Europe and Canada could have leverage, and YouTomb may end up documenting much of the censorship (if it gets proper foundation support).
If a souped-up GOFA (or must-carry rules for search engines) ever got traction in the US, Google would have some interesting options available to fight regulation. While the Google employees interviewed in Rosen’s article did not discuss the company’s own rights, its legal team has argued in prior cases that any interference with its results would violate Google’s own First Amendment right to freely express its opinions. (Here, the opinions would be what sites should be indexed and deemed relevant to a search query). I find that argument dubious, because I think Google is closer to a conduit than a content provider. I was reassured that the Googlers Rosen interviewed did not embrace the “nuclear option” of invoking their own putative First Amendment protection in order to dismiss the possibility of regulation of their power over the dissemination and salience of the expression of others.
Finally, I was happy to see Rosen and Tim Wu point out the following in the article:
Google is not just a neutral platform for sovereign users; it is also a company in the advertising and media business. In the future, Wu said, it might slant its search results to favor its own media applications or to bury its competitors. If Google allowed its search results to be biased for economic reasons, it would transform the way we think about Google as a neutral free-speech tool. The only editor is supposed to be a neutral algorithm. But that would make it all the more insidious if the search algorithm were to become biased.
Both Federal Search Commission and Internet Nondiscrimination Principles have described and addressed those potential problems in some detail. For the short course, check out Danny Weitzner on the proper institutional response to Google’s privacy problems. His proposals for “extreme fact-finding” scale well to the other issues the company’s power raises. Bottom line: someone in government has to have the right to determine “if the search algorithm [has become] biased.” Without that basic assurance, black box search engines now are about as big a menace as the black box economy was five years ago. We trust the math wizards at Google now as much as we used to admire the financial innovators at Bear Sterns and Goldman. Only time will tell if our faith in the mathematicians was misplaced yet again.
posted by Daniel Solove
Beware of visiting the Volokh Conspiracy, as Orin Kerr has promulgated new terms of service. If you access the site contravening any of these terms, according to the prosecution theory in the Lori Drew case, you’ve committed a federal crime. One of Orin’s terms is that you can’t be a federal employee to access the Volokh Conspiracy. So if the prosecutor in the Lori Drew case were to access the blog, I sure hope he wouldn’t be a hypocrite and would bring a prosecution against himself!
posted by Miriam Cherry
Was thinking about the Macy’s Thanksgiving Day Parade a little earlier, and made me realize that there has yet to be a treatise on the law of parades. One of my colleagues once wrote her torts exam about large balloons escaping and causing property damage. Or, perhaps more widespread, there is that oft-cited and always chilling “Parade of Horribles.” (makes me shudder just to think about it).
Further, my co-blogger at ContractsProf, Meredith Miller, has a great post up about the law of the turkey. In fact, she facetiously claims she will be writing an entire book on the topic:
The chapter on Turkeys and Criminal Law and Process will include People v. Chafford, 2007 WL 2751878 Cal.App. 1 Dist., Sept. 1, 2007) (no longer good for at least one point of law), which raises issues of prosecutorial misconduct based on the following statements made by a prosecutor during closing arguments:
“Now, reasonable doubt, I want to touch on that. Reasonable doubt was presented to you by Mr. Keller as some type of insurmountable burden. It’s not. It’s not only the same burden that’s used in this case, it’s the same burden or standard of proof that’s used in every criminal court in California and in the country. People are convicted beyond a reasonable doubt every day, so it is not this great insurmountable burden.
“It’s built into the system that we have … and as such, it’s always used as a defense. Crime wasn’t proven to you beyond a reasonable doubt. That’s always a defense to any criminal case. It’s kind of like you make the analogy: you can’t have Thanksgiving without turkey. Well, you can’t have a criminal trial without the defense being reasonable doubt. That’s just the way it is. It’s built right into the system. [emphasis added] * * *
“Ladies and gentlemen, reasonable doubt is there for a reason. It’s there to protect the innocent; it is not meant to be used as a legal loophole for the guilty. Remember that when you’re discussing reasonable doubt.”
Happy T-Day everyone. Cheers!
posted by Sarah Waldeck
Regular Co-Op readers may have realized that I am a big fan of the radio program This American Life. Here’s the link to one of my all-time favorite stories: Opening Night. There’s not a legal connection; there’s not even a Thanksgiving connection. It’s just flat-out hilarious.
Best Thanksgiving wishes to everyone, with a special thought for those who may feel less fortunate than they did last year.
posted by Frank Pasquale
The NYT’s Well blogger Tara Parker-Pope notes the new pride many of those with ADHD feel in the wake of Michael Phelps’s success:
[T]he Olympic superstar . . . is emerging as an inspirational role model among parents and children whose lives are affected by attention problems. . . . Children with the disorder typically have trouble sitting still and paying attention. But they may also have boundless energy and a laserlike focus on favorite things. . . .
They’re also part of a larger cultural movement questioning the medicalization of various “deviant” personalities. Rather than treat boys for ADHD, some Norwegian schools just start them in school later. Allan V. Horwitz worries that “normal sadness” is being rendered socially unacceptable on account of pharmaceutical fixes:
posted by Frank Pasquale
I recently got a chance to hear Cass Sunstein’s presentation on “Believing False Rumors” at a conference on privacy, free speech, and the Internet. Sunstein discussed the many dynamics leading to errant “informational cascades,” including self-defeating attempts at correction (which paradoxically tend to entrench the original mis-impression). This article by Michael Shermer discusses some biological bases for the problem:
In a September paper in the Proceedings of the Royal Society B, “The Evolution of Superstitious and Superstition-like Behaviour,” Harvard University biologist Kevin R. Foster and University of Helsinki biologist Hanna Kokko test my theory through evolutionary modeling and demonstrate that whenever the cost of believing a false pattern is real is less than the cost of not believing a real pattern, natural selection will favor patternicity. They begin with the formula pb > c, where a belief may be held when the cost (c) of doing so is less than the probability (p) of the benefit (b). For example, believing that the rustle in the grass is a dangerous predator when it is only the wind does not cost much, but believing that a dangerous predator is the wind may cost an animal its life.
Shermer calls our propensity to find “meaningful patterns in meaningless noise” patternicity. The same phenomenon could be observed on Wall Street. As Michael Lewis reports, when “asked what would happen to default rates if real estate prices fell[, t]he man at S.& P. couldn’t say; its model for home prices had no ability to accept a negative number. ‘They were just assuming home prices would keep going up.’” “Fixated on Friedman,” they were willfullly blind–though perhaps my moral judgment on results here is influencing my view as to their intent.
posted by Frank Pasquale
Chris Lydon’s Open Source has been one of my favorite podcasts for the past two years. The host has a passion for culture and politics; his intellect is about as wide-ranging as that of the great American critics Wilson, Trilling, Kazin and Howe. My favorite episodes have both featured Bach; the first a tribute to conductor/pianist Craig Smith, the latest an interview with pianist Andrew Rangell. The Rangell interview focuses on
the perfect nest of piano masterpieces that Daniel Barenboim and others refer to as the Old Testament, the 48 preludes and fugues conceived in 1722 and refined over the last 28 years of Bach’s life, the set known as The Well-Tempered Clavier.
The Smith show captures, in the words of Russell Sherman, an extraordinary “way to live:”
“Everything he touched he cherished, and relished with an incredible tenderness, conviction, and belief. . . Everything he did, he did with flair, a cherubic smile, and a Mozartean sense of absolute pleasure and happiness in the task itself.”
Many thanks to Lydon for bringing both these gifts to us.
posted by Daniel Solove
A verdict has been reached in the Lori Drew case. Kim Zetter reports:
Lori Drew, the 49-year-old woman charged in the first federal cyberbullying case, was cleared of felony computer-hacking charges by a jury Wednesday morning, but convicted of three misdemeanors. The jury deadlocked on a remaining felony charge of conspiracy.
After just over a day of deliberation, the six-man, six-woman jury acquitted Drew of three felony charges of violating the federal Computer Fraud and Abuse Act, in an emotionally charged case that stemmed from a 2006 MySpace hoax targeting a 13-year-old girl, who later committed suicide.
Tina Meier, the mother of the girl, shook her head silently from the gallery as the verdict was read.
Prosecutors claimed Drew and others obtained unauthorized access to MySpace by creating a fake profile for a nonexistent 16-year-old boy named “Josh Evans.” The account was used to flirt with, and then reject, 13-year-old old Megan Meier. The case hinged on the government’s novel argument that violating MySpace’s terms of service for the purpose of harming another was the legal equivalent of computer hacking, and Drew faced a maximum sentence of five years in prison for each charge.
But on Wednesday, jurors found Drew guilty only of three counts of gaining unauthorized access to MySpace for the purpose of obtaining information on Megan Meier — misdemeanors that potentially carry up to a year in prison, but most likely will result in no time in custody. The jury unanimously rejected the three felony computer hacking charges that alleged the unauthorized access was part of a scheme to intentionally inflict emotional distress on Megan.
posted by Danielle Citron
According to the New York Times, health-related Web searches are making us unecessarily anxious. A Microsoft study released on Monday reveals that search engines often lead people to fear the “worst about what ails them.” Web searches for medical problems are “as likely or more likely” to lead people to pages describing serious conditions as benign ones, even though the more serious illnesses are much more rare. For instance, a search for the term “headache” retrieved as many articles about brain tumors as those discussing caffeine withdrawal, even though the chance of having a brain tumor is extremely small. According to artificial intelligence researcher Eric Horvitz, people trust search engines to produce information as a human expert would and tend to look at just the first couple of results in a given search. When a search for “headache” produces “brain tumor” or “A.L.S.” in its first few results, people seize on these terms as their “launching point.” As a result, more than half of the study participants said that online medical queries had interrupted their day-to-day activities and made them anxious. And a third of the subjects escalated their follow-up searches to explore serious illnesses.
Our tendency to jump to awful conclusions is well-established. As behavioral economics literature suggests, an array of psychological undercurrents influence our behavior and decision making. For instance, the phenomenon of diagnosis bias causes us to ignore evidence that contradicts our initial assessment of a situation. (Anecdotally, Dr. Horvitz recalled his “medical schoolitis:” his tendency to believe that he suffered from the rare and incurable diseases that he studied in medical school.) And, as the Microsoft study suggests, we suffer from automation bias–the tendency to believe computer decisions in the face of contradictory evidence.
Microsoft hopes to refine its search engines to detect medical inquiries and offer advice that would not automatically make Web searchers jump to the worst conclusions, thus serving as more of an adviser than a blind information retrieval tool. Given the move to personalize our searches based on our prior activity, the question remains whether new developments can alleviate the anxious (like the Woody Allen character Mickey in “Hannah and Her Sisters”) from running into doctors offices to get CAT scans at the first sign of a headache.
posted by Miriam Cherry
A recurring theme on the ever-fabulous AALS contracts list-serve involves pressing “reply to all” accidentally. The list is a fabulous resource, yet over the years it has seen its share of embarrassments (because it automatically replies to all when you hit reply, leading many to conclude that maybe that default rule should be changed, yet somehow it remains reply to all, despite the fact that everyone on the list is teaching contracts law and thus understands default rules and should realize that this is a penalty default, with too much information seemingly forced from us and onto the entire listserve, nonetheless we all have to live the consequences of this particularly onerous penalty default, including this horrible run-on sentence).
We all have experiences with the accidental reply, and I can speak about this personally. That law firm associate who accidentally hit “reply all” when responding to the inquiry about workload? That would be me, informing everyone at the law firm that I indeed was satisfied with my current work assignments (hey, it could have been worse). But sometimes it seems that people “reply all” strategically. They *want* everyone to know something good that they did. So someone sends an email out to an entire list, making public their donation to the homeless shelter. Other times, someone wants to embarrass the person who sent an email by picking apart some mistake in the original email. It’s framed as a private reply, of course, but it goes to everyone. Of course the author, if asked, will try to play it off as a mistake. “Ooops, sorry, didn’t mean for that to go the whole list.” Sure, sure, we believe you…
What’s the best / worst example of “reply y’alling” that ya’ll can think of?
[cross-posted at ContractsProf]
posted by Sarah Waldeck
While the broken windows theory of crime control has much intuitive appeal, empirical support has always been a bit thin. Now researchers in the Netherlands have conducted a series of experiments which seem to confirm the core hypothesis that visible signs of low-level disorder increase the likelihood that people will violate behavioral norms. The experiments showed that disorder not only increased the possibility that individuals would engage in mildly anti-social behavior (like littering), but also more serious criminal behavior. As described by the Economist:
The most dramatic result . . . was the one that showed a doubling in the number of people who were prepared to steal in a condition of disorder. In this case an envelope with a €5 ($6) note inside (and the note clearly visible through the address window) was left sticking out of a post box. In a condition of order, 13% of those passing took the envelope (instead of leaving it or pushing it into the box). But if the post box was covered in graffiti, 27% did. Even if the post box had no graffiti on it, but the area around it was littered with paper, orange peel, cigarette butts and empty cans, 25% still took the envelope.
My own reaction to these experiments is mixed. On one hand, of course, it is satisfying to have empirical data that tends to confirm a hypothesis that has helped shape policing over the course of the last 25 years. But other empirical work tends to disprove the broken windows theory, most notably an analysis of crime data in New York City over a ten-year period, as well as results from the Moving to Opportunity experiment, in which individuals from areas with high levels of social disorder moved to more advantaged and orderly communities.
A quick survey of the blogosphere suggests that the headline for the Netherlands experiment is “Broken Windows Works!” or some similar variant. A survey of all the empirical evidence, however, suggests that the story is not nearly that tidy. Moreover, as I’ve previously written on this site, many unanswered questions remain, such as whether constraining disorder is the best use of limited police resources, or how the police choose their targets in a public order campaign, or whether addressing disorder can ever mean more than moving it to a less visible place.
posted by Sarah Waldeck
Of all the issues raised by the Wall Street Journal’s recent reporting on volume liver transplants, those concerning property law may be the least salient. But the questionable behavior of Amadeo Marcus, the former director of clinical transplantation at the University of Pittsburgh Medical Center (UPMC), reminded me of the infamous Moore v. Regents of the University of California. In Moore, the California Supreme Court decided an individual has no property right in his excised cells. Moore helps introduce students to questions of commodification and inevitably leads to discussions about whether people should be allowed to sell organs and other bodily materials. Regardless of their position on this question, students sometime need to be reminded about the extent to which such bodily materials have already been commodified. The next time I teach Moore, I’m going to use recent events at UPMC to amplify this point:
The transplant program is a source of both profits and prestige that UPMC leverages to attract star doctors and build its other businesses, which include a health-insurance arm. Hospitals charge $400,000 to $500,000 for a liver transplant. UPMC’s transplant program produced $130 million of revenue in its latest fiscal year . . . .
Liver-transplant volume in Dr. Marcos’s first full year [at UPMC] jumped to more than double the volume in the year before he came, according to data from the United Network for Organ Sharing, or UNOS. But the way he boosted it raised questions for some colleagues.
A shortage of transplantable organs from cadavers is a perennial constraint on the number of liver transplants. Dr. Marcos overcame this in part by using organs from so-called expanded-criteria donors — deceased people who had been older or sicker than preferred liver donors. . . . Dr. Marcos put some of these organs into patients who were in the early stages of liver disease. . . . These were patients, [some experts say], who sometimes didn’t need a transplant. . . .
Besides using more expanded-criteria livers, Dr. Marcos sharply increased the number of transplants from living donors. In these, part of the liver of a healthy person is cut off and grafted into a sick patient. If all goes well, both pieces eventually grow to normal size. The procedure is controversial because it could be risky for the otherwise healthy donor.
UPMC did 150 such surgeries while Dr. Marcos was there, according to UNOS. No donors died. However, in 69% of the cases, the recipient had [various medical indicators suggesting] that UPMC was putting some living donors at risk to do transplants on patients in which the risks of the operation may have outweighed the benefits.
posted by Kaimipono D. Wenger
Via Boing Boing, this helpful primer. How does one conceptualize what $4.6 trillion (the current aggregate bailout cost) looks like?
It is more than the inflation-adjusted* costs of the Marshall Plan, Louisiana Purchase, moonshot, S&L bailout, Korean War, New Deal, Iraq war, Vietnam war, and NASA’s lifetime budget . . . combined!
That’s a pretty hefty chunk of change.
posted by Boston College Law Review
Boston College Law Review, Issue 49:5 (November 2008)
Marc O. DeGirolami, The Problem of Religious Learning, 49 B.C. L. Rev. 1213 (2008) [PDF]
Ruth Mason, Made in America for European Tax: The International Consistency Test, 49 B.C. L. Rev. 1277 (2008) [PDF]
Richard E. Myers II, Responding to the Time-Base Failures of the Criminal Law Through a Criminal Sunset Amendment, 49 B.C. L. Rev 1327 (2008) [PDF]
Douglas G. Smith, The Constitutionality of Civil Commitment and the Requirement of Adequate Treatment, 49 B.C. L. Rev 1383 (2008) [PDF]
Michael K. Avery, Whose Rights? Why States Should Set the Parameters for Federal Honest Services Mail and Wire Fraud Protections, 49 B.C. L. Rev 1431 (2008) [PDF]
posted by Robert Ahdieh
As the number of bailouts, the scope of bailouts, and talk of further bailouts have all increased over the last month, culminating in yesterday’s announcement of yet another in the asserted “Mother of All Bailouts” series – of Fannie Mae/Freddie Mac, then of AIG, and now of Citigroup – one thing has been missing.
Now no one would ever accuse me of being an empiricist, but this surely seemed a ripe question for quantitative study. Was it simply my imagination that no one seemed to be talking about the moral hazards attendant to young, newly appointed staff members doling out cash on the front steps of the Treasury Department? Perhaps my eyes were simply glazing over every time I came to the paragraph in the New York Times or Wall Street Journal pieces where they quoted some obscure academic economist, noting the risks attendant to bailouts?
Or perhaps not.
Consider the results of my exhaustive search for the term “moral hazard” in articles in Westlaw’s “USNEWS” database, of U.S. papers and news magazines, conducted yesterday morning:
posted by Frank Pasquale
Kelly Osbourne’s recent One Word is directly inspired by the great film Alphaville:
Ms. Osbourne happily acknowledges the resemblance:
“I’m going for something like very ‘Alphaville,’ ” Osbourne told MTV News . . . when she was dreaming up the concept….”Very ’60s, nothing that I thought I’d ever do, like very black-and-white. I’m excited for that. And I’m going to wear a wig!”
To flesh out her idea, Osbourne enlisted director Chris Applebaum to emulate “Alphaville,” Jean-Luc Godard’s classic 1965 avant-garde film. Their take . . . was filmed in black-and-white 35 mm, while Osbourne herself embodied the look of the film’s star, Anna Karina, with sharp bangs and porcelain skin.
I’ve not been able to find out whether Osbourne got a license from the owners of the copyright in Alphaville. I don’t know if she needed one, but hypercautious Hollywood IP lawyers may well have wanted one. Perhaps aware of that legal issue, the Red Hot Chili Peppers appear a little more reticent about discussing the inspiration for their video for Otherside. Though some say its “black-and-white/monochrome Gothic style [is very] similar to Robert Wiene’s The Cabinet of Dr. Caligari,” a Jonathan Dayton stated: