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Author: William McGeveran

11

Of Foxes, Hedgehogs, and Splitting Babies

kingsolomon 1.jpgLarry Solum takes the interesting continuing cross-blog discussion of foxes and hedgehogs started by Belle Lettre — including this blog’s own entry from Dan Filler — in a new direction by pointing out, politely, that the fox/hedgehog imagery is being used incorrectly. Go read Larry’s explanation, and then be sure to stay around for his delightful integration of the refined definition back into the discussion.

It made me think of other historical or literary images that are misused in modern legal discourse because so many of us are insufficiently familiar with them. I claim absolutely no high ground here — surely I do it myself. But the one that drives me crazy is “splitting the baby.” It may be objectionable as a cliche anyway, but it is even worse when used incorrectly.

In general “split the baby” gets used as a substitute for “split the difference,” “half a loaf,” or, more simply, “compromise.” (Thus explaining its frequent occurrence in legal discussions…) It shows up in that sense in places I otherwise love, like the Wall Street Journal Law Blog and NPR reports by Nina Totenberg.

The phrase originates in the Bible, specifically 1 Kings 3:16-28. Two women come before wise King Solomon, both claiming fervently to be the mother of an infant. Solomon calls for his sword and declares that he will cut the baby in two and give one half to each woman. When the true mother cries out in anguish, Solomon knows which woman should keep the child. If he had actually cut the child in half, of course, he would be remembered as a mad tyrant like Caligula and not the epitome of wise judicial temperament. Yet you might think from some lawyers’ metaphorical uses of the phrase that cutting a baby in half was laudable. One of the oldest literary or historical models of good judging deserves better from us.

Any other nominees?

[Cross-posted at Info/Law]

0

Alumni Donations and Legacy Admissions

A new economics working paper analyzes confidential data from an unnamed elite university and reaches this perhaps unsurprising conclusion:

We find that the presence of children [in the household] increases an alumnus’s giving, that giving drops off after the admissions decision, and that the decline is far greater when the child is rejected. In short, alumni giving varies systematically with the age and admissions status of their children. This child-cycle of alumni giving is consistent with the hypothesis that some donations are made in the hope of a reciprocal benefit.

Or, as Slate summarizes the results in somewhat more vernacular terms:

At about age 14, as mom and dad see their kid’s algebra and composition grades, they decide whether he or she will apply to the alma mater. If they decide against, then they need not give extra to grease his way in. But if the kid is legacy material, then the parents might feel a need to show some generosity to Anon U.

I am pretty sure that some admissions decisions are influenced to some extent by parental donations. But the authors of the paper take pains to point out that the reality of this influence (which would be hard to pin down anyway) is not necessarily relevant, so long as the alumni parents believe it exists:

An interesting feature of this phenomenon is that the institution makes no promise of reciprocity whatsoever. True, children of Anon U alumni have a higher rate of acceptance than other students, but this does not prove that having a parent who made donations in the past increases a child’s likelihood of admission. Nevertheless, the view that reciprocity exists is widespread. [snip] We know of no statistical evidence on whether alumni donations at any university affect admissions probabilities for their children, and if so, how much. For our purposes, the key insight is that generating the child-cycle of alumni giving requires only the perception of reciprocity.

There is no apparent reason to think this data is not typical of other elite colleges. But what about law schools? How much does the perception that Mommy and Daddy’s donations help with admissions translate to law school admission? More controversial question: how close is that perception to reality? Most controversial question: how much do law school deans encourage the perception, regardless of the reality, and is that problematic?

2

Sincerest Form of Flattery

Did anyone else think the constitutional reform initiatives announced today by brand-new British Prime Minister Gordon Brown (see news coverage here and here) sounded familiar? Among the proposed changes: Parliament will have the power to declare war, ratify treaties, and approve appointments of judges and certain key administrative personnel; the government will form a National Security Council; and a process will begin to consider (yet again) enactment of a written Bill of Rights. Brown unveiled the plans in his first House of Commons speech as PM, a real marquee moment and probably the closest thing he has to an inaugural address.

It’s nice to know that, despite all its flaws and foibles, our governmental structure still has features that others consider worth emulating. Happy Fourth of July! (And if you haven’t done so yet, you should take another moment to celebrate the day by reading the Declaration of Independence.)

8

HIPAA-cracy

This morning, vindication! When a long New York Times investigative piece says exactly what you have been saying for a long time, it feels very good.

So it is with this morning’s thumbsucker [reg/$$ req'd] about the ridiculous overzealousness and misunderstanding of HIPAA by health care professionals. HIPAA is the Clinton-era law that was principally concerned with making health insurance portable, but has become better known for its privacy-protection requirements. (In fact, the statute largely delegated development of all the details of the privacy provisions to the Department of Health and Human Services, which engaged in a lengthy and torturous rulemaking process.) As recounted at length in the Times piece, many employees at hospitals, doctors’ offices, and insurance companies use the statute’s supposed requirements as a shield for bureaucratic inflexibility in releasing information, even to close family members of an incapacitated patient. I have had numerous encounters with just such ill-informed stubbornness myself, and I find it maddening. (You can only imagine some of the arguments I have had with telephone receptionists who blindly invoke HIPAA.)

In addition to the direct trouble it causes for patients and their family, I fear the continued misuse of HIPAA undermines support for all privacy regulation. This is the only direct contact many people will ever have with privacy law in action. Who could blame them if they conclude that legal privacy restrictions are for the birds? Disregard for patient privacy was widespread before HIPAA, and I have no doubt legal regulation was called for. There have been 27,778 complaints under the law. But those harms are less visible to most of us than the new harm of mindless overprotection.

What’s fascinating is that the excessive caution in response to HIPAA comes against a backdrop of extremely low risk of sanctions. Exclusive enforcement power lies with HHS — the law provides no private right of action. And HHS has never imposed any civil or criminal penalty (although there are three criminal cases ongoing at the moment, those situations are extreme outliers). What explains this risk aversion given the vanishingly small risk of any real penalty?

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2

Piercing the Veil of Anonymous Bloggers

Lives of Others Picture.jpgI’m delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.

Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, “there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach.”

Personally, I don’t need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a “show me your papers” internet.

First and foremost, it should be no surprise that China reportedly is looking at a similar model — as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above — and you really should see it — you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.

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