Author Archive for frank-pasquale
posted by Frank Pasquale
Aggressive copyright litigation run amok. (fp)
May 6, 2013 at 7:26 pm
Posted in: Asides
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Epstein, Landes, & Posner Find SCOTUS Very Pro-Business
posted by Frank Pasquale
Adam Liptak’s story on the Supreme Court offers a nice empirical validation of Jeffrey Rosen’s observation in Supreme Court, Inc.: this is a very pro-business SCOTUS.
Whether the Roberts court is unusually friendly to business has been the subject of repeated discussion, much of it based on anecdotes and studies based on small slices of empirical evidence. The new study, by contrast, takes a careful and comprehensive look at some 2,000 decisions from 1946 to 2011.
Published last month in the Minnesota Law Review, [a study by Lee Epstein, William Landes, & Richard Posner] ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.
The ideological shift on the Court is also affecting the academy. If a scholar aims to influence the Court, he or she would be smart to find some new interpretation of an old right that dramatically expands corporate power. To the extent influence on the Court is taken as a bellwether of the quality of one’s legal scholarship, perhaps that ostensibly neutral evaluative mechanism is promoting the political commitments of a durable conservative majority.
May 5, 2013 at 5:50 pm
Posted in: Supreme Court
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Market Efficiencies Come to Legal Practice
posted by Frank Pasquale
Dustin A. Zacks has posted a fascinating article on the role of “foreclosure mills” in bringing a more corporate, bottom-line oriented mentality to law firms:
The recent housing crisis increased demand for attorneys to process foreclosures through state courts. [High volume foreclosure firms developed; they] differ in makeup from traditional large law firms. Notable characteristics of these foreclosure firms include lenders and servicers’ relentless demand for increased speed and low costs, lack of firm-specific capital at foreclosure law firms, and a factory-like atmosphere of legal practice.
[As they developed] the fastest and cheapest legal services available. . . .these firms consistently generated complaints about their conduct, including questions about their ethical decision-making and about the veracity of the pleadings and documents they filed. . . . The Article accordingly examines the curiously muted reaction from state bar associations, judges, and state legislators.
May 5, 2013 at 2:39 pm
Posted in: Financial Institutions, Legal Ethics
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Money Laundries
posted by Frank Pasquale
I was recently reading a Money Laundering Threat Assessment (from 2005), and the following lines came up on p. 49:
[T]he trust laws of some jurisdictions have aided money launderers in their use of trusts to conceal identity and to perpetrate fraud. In certain jurisdictions, such as the Cook Islands, Nevis, and Niue, the trust laws no longer require the names of the settlor and the beneficiaries to be placed in the trust deed, permit settlors to retain control over the trust, and allow trusts to be revocable and of unlimited duration.
My question is: why is this even called a trust? Shouldn’t it bear some other name? At least Liechtenstein has the decency to call its creepy money-hiding methods “Anstalts.”
The larger consequences here are terrifying. The wealth defense industry has created an environment where all manner of swindlers, thieves, and terrorists can hide ill-gotten gains. As a forthcoming University of Pennsylvania piece by Shima Baradaran, Michael Findley, Daniel Nelson, and J.C. Sharman puts it:
On the whole, forming an anonymous shell company is as easy as ever, despite increased regulations following 9/11. The results are disconcerting and demonstrate that we are much too far from a world that is safe from terror.
I nevertheless expect that most of the centomillionaire and billionaire class will continue to fight efforts to crack down on shell companies and trusts, and will find ample “help” to argue their case. Perhaps someone will even pen an ode to financial privacy. Meanwhile, we have no idea what taxes may be due from trillions of dollars in offshore wealth, or to what purposes it is directed.
Expect to hear many more stories on this issue. The stakes could not be higher. As Liu Xiaobo has stated, corruption is the “officialization of the criminal and the criminalization of the official.” Persisting even in a world of brutal want and austerity-induced suffering, tax havenry epitomizes that sinister merger.
April 26, 2013 at 10:42 pm
Posted in: Military Law, Privacy, Tax, Wills, Trusts, and Estates
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Privacy & Information Monopolies
posted by Frank Pasquale
First Monday recently published an issue on social media monopolies. These lines from the introduction by Korinna Patelis and Pavlos Hatzopolous are particularly provocative:
A large part of existing critical thinking on social media has been obsessed with the concept of privacy. . . . Reading through a number of volumes and texts dedicated to the problematic of privacy in social networking one gets the feeling that if the so called “privacy issues” were resolved social media would be radically democratized. Instead of adopting a static view of the concept . . . of “privacy”, critical thinking needs to investigate how the private/public dichotomy is potentially reconfigured in social media networking, and [the] new forms of collectivity that can emerge . . . .
I can even see a way in which privacy rights do not merely displace, but actively work against, egalitarian objectives. Stipulate a population with Group A, which is relatively prosperous and has the time and money to hire agents to use notice-and-consent privacy provisions to its advantage (i.e., figuring out exactly how to disclose information to put its members in the best light possible). Meanwhile, most of Group B is too busy working several jobs to use contracts, law, or agents to its advantage in that way. We should not be surprised if Group A leverages its mastery of privacy law to enhance its position relative to Group B.
Better regulation would restrict use of data, rather than “empower” users (with vastly different levels of power) to restrict collection of data. As data scientist Cathy O’Neil observes:
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April 20, 2013 at 1:03 pm
Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (National Security), Social Network Websites, Sociology of Law
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Silicon Valley Feminism: “You Need to Change, Not Us”
posted by Frank Pasquale
The media attention to Sheryl Sandberg’s Lean In has been extraordinary. Two reviews should not be missed. First, from Kate Losse, a former Facebook insider (employee #51) who felt exploited by the company:
[Why does Lean In focus] on the problem it does: women’s presumed resistance to their careers rather than companies’ resistance to equal pay[?] Why not focus on renovating the pay structure so that women aren’t denied raises[?] . . . The faster my career accelerated at Facebook, the more my financial returns diminished, until my workload was being elevated but not my salary or equity. Leaning in, then, starts to look like it can benefit companies more than it benefits workers. . . Women in tech are much more likely to be hired in support functions where they are paid a bare minimum, given tiny equity grants compared to engineers and executives, and given raises on the order of fifty cents an hour rather than thousands of dollars. . . . [W]hat if women, even in a company like Facebook, are still paying a gender penalty that nothing but conscious, structural transformation can cure?
March 31, 2013 at 11:23 am
Posted in: Feminism and Gender, Technology, Uncategorized
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posted by Frank Pasquale
Alabama sign death not an isolated case. (fp)
March 24, 2013 at 7:07 pm
Posted in: Asides
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Do Corporations Enjoy a 2nd Amendment Right to Drones?
posted by Frank Pasquale
An emerging, “solutionist” narrative about drones goes something like this:
Yes, we should be very worried about government misuse of drones at home and abroad. But the answer is not to ban, or even blame, the technology itself. Rather, we need to spread the technology among more people. Worried that the government will spy on you? Get your own drones to watch the watchers. Fearful of malevolent drones? Develop your own protective force. The answer is more technology, not regulation of particular technologies.
I’d like to believe that’s true, if only because technology develops so quickly, and government seems paralyzed by comparison. But I think it’s a naive position. It manages to understate both the threats posed by drones, and the governance challenges they precipitate.
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March 24, 2013 at 1:19 pm
Posted in: Constitutional Law, Military Law, Political Economy, Privacy, Property Law, Technology
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The Coursera Model of Central Planning for Education
posted by Frank Pasquale
An interesting conflict is developing in California over the spread of “MOOCs.” First, a bit on the business model of a leading MOOC firm, Coursera:
When and if money does come in, the universities will get 6 to 15 percent of the revenue, depending on how long they offer the course (and thus how long Coursera has to profit from it). The institutions will also get 20 percent of the gross profits, after accounting for costs and previous revenue paid. That means the company gets the vast majority of the cash flow.
It now looks as if Coursera’s model of siphoning education dollars may be challenged in California. In its race to put more courses online, the UC administration has apparently asked for the following in a provision of a proposed faculty contract with Coursera:
“I hereby irrevocably grant the University the absolute right and permission to use, store, host, publicly broadcast, publicly display, public[sic] perform, distribute, reproduce and digitize any Content that I upload, share or otherwise provide in connection with the Course or my use of the Platform, including the full and absolute right to use my name, voice, image or likeness (whether still, photograph or video) in connection therewith, and to edit, modify, translate or adapt any such Content.”
I wonder—could Coursera repurpose a course for use in, say, Singapore, by promising to cut out any critical commentary on the Singaporean government? Read the rest of this post »
March 24, 2013 at 11:20 am
Posted in: Education, Intellectual Property
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posted by Frank Pasquale
The axis of Huxley & Machiavelli. (fp)
March 8, 2013 at 9:42 am
Posted in: Asides
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Coates on Racism
posted by Frank Pasquale
I found this a particularly powerful column by Ta-Nehisi Coates on the frisking of Forest Whitaker at a New York City deli:
Last month the actor Forest Whitaker was stopped in a Manhattan delicatessen by an employee. Whitaker is one of the pre-eminent actors of his generation. . . Since the Whitaker affair, I’ve read and listened to interviews with the owner of the establishment. He is apologetic to a fault and is sincerely mortified. He says that it was a “sincere mistake” made by a “decent man” who was “just doing his job.” I believe him.
We can forgive Whitaker’s assailant. Much harder to forgive is all that makes Whitaker stand out in the first place. New York is a city, like most in America, that bears the scars of redlining, blockbusting and urban renewal. The ghost of those policies haunts us in a wealth gap between blacks and whites that has actually gotten worse over the past 20 years. But much worse, it haunts black people with a kind of invisible violence that is given tell only when the victim happens to be an Oscar winner.
The “invisible violence” extends to the newsmagazine of NYC’s billionaire mayor, to his law enforcement policies. Implicit bias is pervasive. We need not accuse any particular person of evil intent to observe the corrosive structures that reinforce it.
March 7, 2013 at 7:56 pm
Posted in: Civil Rights, Constitutional Law, Criminal Procedure
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posted by Frank Pasquale
Kookaburra copyright conundrum (fp)
March 7, 2013 at 6:57 pm
Posted in: Asides
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posted by Frank Pasquale
The Mark Cuban Chair to Eliminate Stupid Patents (fp)
March 6, 2013 at 11:43 pm
Posted in: Asides
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The Centralization of Higher Ed
posted by Frank Pasquale
Last month, I noted some important innovations in teaching, while striking a cautionary note about massive, open online courses (MOOCs). But for those who prefer MOOC-thusiasm, Tom Friedman’s recent column delivers:
You may think this MOOCs revolution is hyped, but my driver in Boston disagrees. You see, I was picked up at Logan Airport by my old friend Michael Sandel, who teaches the famous Socratic, 1,000-student “Justice” course at Harvard, which is launching March 12 as the first humanities offering on the M.I.T.-Harvard edX online learning platform. When he met me at the airport I saw he was wearing some very colorful sneakers.
“Where did you get those?” I asked. Well, Sandel explained, he had recently been in South Korea, where his Justice course has been translated into Korean and shown on national television. It has made him such a popular figure there that the Koreans asked him to throw out the ceremonial first pitch at a professional baseball game — and gave him the colored shoes to boot!
Friedman spends much of the remaining column arguing that universities need to a) get rid of “sage on a stage” lecture courses, while substituting in for them b) sages on YouTube like Sandel. The critical link to Education 2.0: intensive, individualized assessment & problem solving. So in Friedman’s ideal world, philosophers like Sandel would teach all the intro “Ethics” or “Justice” courses for millions, while local adjuncts would apply them to particular dilemmas (such as: should columnists disclose if they are “heirs to a multi-billion-dollar business empire”?).
The irony here is twofold. Read the rest of this post »
March 6, 2013 at 11:01 pm
Posted in: Constitutional Law, Education, Teaching, Technology
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Social Science & Teaching
posted by Frank Pasquale
Gary King and Maya Sen have argued that traditional universities “can build on our tremendous advantage in research to improve teaching and learning.” In a recent article entitled “How Social Science Research Can Improve Teaching,” they give more details:
We marshal discoveries about human behavior and learning from social science research and show how they can be used to improve teaching and learning. The discoveries are easily stated as three social science generalizations: (1) social connections motivate, (2) teaching teaches the teacher, and (3) instant feedback improves learning. We show how to apply these generalizations via innovations in modern information technology inside, outside, and across university classrooms. We also give concrete examples of these ideas from innovations we have experimented with in our own teaching.
I don’t think all the ideas they propose in the piece could work in a law school context, but several seem well worth trying. I have found, for instance, that teaching a course in Health Data Analysis & Advocacy with a professor from my university’s math department has been a good “stretch” exercise for all involved. In other courses, I’ve tried to introduce students to various online communities that encourage learning about health law. (I’ve found that Twitter may well be the best place to keep track of what’s going on in the law and policy of health information technology.) The King/Sen paper offers many more ideas for promoting new kinds of learning, particularly for those willing to buck the MOOC trend with FASOCs (focused and small online courses).
February 27, 2013 at 9:05 am
Posted in: Teaching, Technology
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posted by Frank Pasquale
Denied tenure for explaining Arendt? (fp)
February 26, 2013 at 5:54 pm
Posted in: Asides
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Carried Interest Loophole: Is Anyone Still Defending It (for Free)?
posted by Frank Pasquale
The New York Times ran an excellent opinion piece yesterday on the bizarre carried interest loophole, tailor-made to nearly halve the tax rate for a tiny sliver of financiers:
Millions of general partners in investment funds receive carried-interest income when they earn profits for their clients. Since these partners do not have to risk any of their own capital, carried interest is really a taxpayer-subsidized fee for managing their clients’ money . . . . No other affluent Americans enjoy this benefit. A brain surgeon, stockbroker, corporate lawyer or actor will have to pay the new top marginal rate percent, while a general partner who manages other people’s money pays, on carried-interest income, only the 20 percent rate on long-term capital gains. . . . The difference in revenue to the United States government when this combined income is taxed at 20 percent rather than at 39.6 percent is about $11 billion annually.
I imagine there are plenty of think tanks happy to characterize this discrepancy as a reflection of (their donors’) wisdom and free enterprise at work. I vaguely recall some academics defending it years ago. But is anyone still doing so, given that we now know how lavishly the finance sector is subsidized, and how tax policy exacerbates inequality in so many other ways?
February 26, 2013 at 7:53 am
Posted in: Tax
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Theorizing the Web
posted by Frank Pasquale
Those near NYC this Saturday might consider visiting the “Theorizing the Web” conference. Provocative presentation titles include:
The Automation of Compliance: Techno-Legal Regulation in the U.S. Trucking Industry
What We Talk About When We Talk Data: Metrics, Mobilization, and Materiality in Performing Health Online
Identity Prosumption and the Quantified Self Movement
Beyond Bridges, Speed-Bumps, And Hotel Keys: A New Design Paradigm for Control Technologies
There is no difference between the “real” and the “virtual”: a brief phenomenology of digital revolution
I am also really looking forward to seeing Rob Horning and Daniel Kreiss present. Having just enjoyed the WIPIP at Seton Hall organized by my colleague Gaia Bernstein, I can say that there really is an embarrassment of riches in internet thought in the NY area these two weeks.
February 25, 2013 at 10:53 pm
Posted in: Conferences
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posted by Frank Pasquale
Kindergarten counterterror cop. (fp)
February 25, 2013 at 12:33 pm
Posted in: Asides
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Education Reform: Agendas, Influence, and Capital
posted by Frank Pasquale
In 21st century America, inequality is the foundational social reality. Institutions that reinforce inequality thrive; those that counteract it are targeted as socialistic or Luddite. Even more insidiously, the same movements that try to fight extreme inequality are, as often as not, co-opted by its beneficiaries.
Co-optation is a particular danger in the education sector. Aaron Bady is one of the best writers & thinkers on the topic. To understand co-optation in higher ed, one could do worse than dive in to his latest salvo against Silicon Valley-style “disruption” in the classroom:
[Clay] Shirky thinks in terms of “disruption” and what can come of it, in theory. I think in terms of what the “disruption” of the University of California system looks like in practice, as a complex of politicians, financiers, and career administrators move in lock-step to transform it into a self-sufficient corporate entity, and to enrich private industry in the bargain. I see a group of decision-makers . . . for whom “online” is code word for privatization. If I am against MOOC’s [Massive Open Online Courses], I am against the way “MOOC” is being experienced in California, in practice: as an excuse to cheapen education and free the state . . . from its responsibility to educate its citizenry.
February 25, 2013 at 1:27 am
Posted in: Education
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