Author Archive for adam-benforado

The End of the Game?

posted by Adam Benforado

As more and more studies are conducted showing that referees are subject to significant biases beyond their conscious awareness (and, sometimes, in quite plain view . . . yes, hello there, Mr. Donaghy), I wonder how soon we will finally see the death of the “judge as umpire” metaphor (at least in confirmation hearings).

Yesterday, I came across this article about researchers at Rotterdam School of Management, Erasmus University, who found that when faced with ambiguous foul situations, soccer referees were significantly more likely to award a foul to the taller of two involved players. The study involved analyzing over 100,000 fouls committed over a seven year period and is to be published next month in The Journal of Sport & Exercise Psychology.

The work aligns with a growing stack of papers showing that, well, referees are human—swayed by elements in their situations even when they believe they are being utterly objective. At the end of last year, for example, academics in the United States published an article in The Journal of Sports Sciences finding that college basketball referees were biased against visiting teams and that the larger the difference in fouls between two teams, the greater the likelihood that the next whistle would go against the team that had fewer fouls. Other recent studies have found similar home-team bias in the English Premiership (see here and here). And, of course, back in 2007, there was the research on NBA officiating showing that white referees were more likely to call fouls against black players than white players.

As someone who has objected to the judging/refereeing analogy on other grounds before, I, for one, am hoping that the weight of the evidence finally dissuades judges and justices from employing it.

  January 29, 2010 at 9:16 am   Posted in: Uncategorized   Print This Post   One Comment

“With All Due Deference to Separation of Powers”

posted by Adam Benforado

As Gerard points out, of the many interesting facets of President Obama’s State of the Union last night (Biden’s choice of a purple tie to signal renewed bipartisan vigor; Justice Ginsburg nodding off, at points, in the front row; Nancy Pelosi’s cold; etc.), Justice Alito’s reaction to the Obama smack-down of Citizens United may have been among the most riveting.

What really intrigued me, however, was not Alito’s reaction, but Obama’s decision to directly criticize a recently decided case with members of the Supreme Court sitting directly below him. Indeed, when he chastised the Court, all of the members of Congress around the justices stood and clapped (see minute 46:07 here). Obama’s speech writers seemed to sense that this might not seem kosher to some observers and so they had him open his commentary on the case with the caution, “With all due deference to separation of powers . . .”

For the historians out there, I’m wondering how often other presidents have criticized the Supreme Court during State of the Union addresses or in other face-to-face interactions.

For everyone else, leaving aside your specific feelings about Citizens United, do you think that Obama’s choice to chastise the justices during the State of the Union is a threat to separation of powers?

  January 28, 2010 at 8:12 am   Posted in: Uncategorized   Print This Post   14 Comments

Would You Like Some Constructive Criticism?

posted by Adam Benforado

Today’s post on the upcoming law review submission period got me thinking. If it was feasible, would law professors like to receive feedback from law review editors with their rejections?

Written feedback is probably unrealistic outside of cases where an article is rejected at the very last stage of the game (where some law reviews already provide an explanation), but it’s possible that journals (or even Expresso) might adopt a quick online checklist that they could pass on to submitters (“The article was rejected because it was judged to be [select one or more]: (1) lacking in originality / derivative of other work, (2) in a topic area recently published/accepted by the journal, (3) too long, (4) poorly supported/cited, (5) unclear / too difficult to understand, (6) out-of-date / no longer relevant, (7) . . .”).

Learning that one law review rejected your article because they thought it was “poorly supported/cited” wouldn’t tell you much, but if you got ten such rejections that might help you in the next submission cycle. I think when a piece isn’t flying off the shelves, most law professors may have an inkling why that is, but, then again, they may not. The reservation your senior colleague, wife, or grandmother had about your article isn’t necessary the same one that a law review editor has.

Maybe more information is good and, for the thin-skinned of us out there, perhaps we can opt-into an alternative checklist that softens the blow:

Ο      Congratulations, we would like to accept your article.

Ο      I think we should see other people.

×      It’s not you; it’s me.

  January 26, 2010 at 9:27 pm   Posted in: Uncategorized   Print This Post   One Comment

Tracking Hate Crimes

posted by Adam Benforado

In my last post, I noted that in the FBI’s compilation of hate crime statistics released a couple months ago, Alabama, Georgia, and Mississippi reported only 24 hate crime incidents over the course of the year to the 1,637 reported in New Jersey, Massachusetts, and Michigan.

I found that shocking and questioned how it was tolerated.

Today, I happened upon a chart made by the Southern Poverty Law Center showing that there are 29 percent more hate groups operating in Alabama, Georgia, and Mississippi than in Massachusetts, Michigan, and New Jersey, which makes me even more convinced that the legal community needs to increase the pressure on these three southern states to seriously track and report hate crimes to the FBI.

One commenter on the last post suggested that the failure of Alabama, Georgia, and Mississippi to report such crimes has to do with an understanding by law enforcement that labeling certain crimes “hate crimes” is likely to prevent prosecutors from gaining convictions because the label threatens to undermine the “biracial consensus they need on juries.” I think that’s an interesting possibility, but even if it is true I don’t think that it ought to be an excuse. In my opinion, identifying certain crimes as “hate crimes” is not simply, as the commenter suggested, a “carpetbagger” worldview. Congress has determined that hate crimes exist and need to be tracked. And, in fact, both Mississippi and Alabama appear to have statutes that criminalize certain bias-motivated violence and intimidation.

It’s time for all states to get serious about eradicating hate-fueled criminal action and figuring out when, where, and how it occurs is a critical first step.

  January 20, 2010 at 8:41 pm   Posted in: Uncategorized   Print This Post   3 Comments

Turning up the Pressure on Alabama, Mississippi, and Georgia

posted by Adam Benforado

Doing a little research for an article, I was just looking at a table from the FBI’s compilation of hate crime statistics broken down by state, released last November.

I was aware that, although the Attorney General is required to collect data on crimes manifesting evidence of prejudice, the compiled statistics are notoriously unreliable because of reporting problems; however, until I looked at the chart, I didn’t understand the degree to which certain states take the reporting seriously and others don’t.

In 2008, New Jersey reported 744 incidents, Massachusetts reported 333, and Michigan reported 560.

During that same time period, Alabama reported 11 incidents, Mississippi reported 4, and Georgia reported 9.

Particularly given the history of discrimination, intimidation, and violence against minorities in those three southern states, I don’t understand how this blatant failure to cooperate with the data collection is tolerated.

Lack of political will? An ambivalent media establishment? The haze of “post-racialism”?

Can anyone fill me in?

Oh, and happy MLK Day.

  January 18, 2010 at 8:53 pm   Posted in: Uncategorized   Print This Post   One Comment

Exploiting Your Charity

posted by Adam Benforado

Maybe this is an easy question (it’s certainly an old one): Should we punish you more if you defraud someone by tricking her into giving you money that she believes is going to charity than if you defraud someone by tricking her into giving you money that she believes is going into an investment that will make her rich?

Yesterday afternoon, I received a text message from the number for the Pennsylvania voter protection project that I did volunteer work for back in the fall of 2008:

Text HAITI to 90999 to donate $10 to the American Red Cross relief efforts in Haiti (Text STOP to unsubscribe Msg&Data rates may apply)

In the previous few days, I’d received a number of similar appeals from friends as result of efforts by the Mobile Giving Foundation (“The Mobile Giving Foundation brings the power and reach of mobile phones to nonprofit organizations as a new fundraising and donor interaction mechanism”) and other organizations.

From all accounts, the text message campaigns have been tremendously successful. According to organizers, by Thursday night, $2 million had already been raised for the Red Cross. However, the campaigns have also opened the ways for scammers of all sorts. As the FBI explained, in a warning issued last week, “Past tragedies and natural disasters have prompted individuals with criminal intent to solicit contributions purportedly for a charitable organization.” And, sure enough—as with 9/11, Hurricanes Katrina and Rita, and the earthquake in China—that appears to be happening again, which leads to the punishment question.

I would not be surprised to find out that some of the same folks behind the email schemes from the “desperate” Nigerian government official who offers several million dollars for your “help” are the same ones behind the new Haiti earthquake relief scams. Should they receive stiffer sentences for being convicted of perpetrating the latter than perpetrating the former? Anyone want to argue that they shouldn’t?

  January 18, 2010 at 6:25 am   Posted in: Uncategorized   Print This Post   One Comment

Is Rigorous Age Identification the Best Way to Prevent Negative Social Outcomes from Alcohol Consumption?

posted by Adam Benforado

This holiday season, while visiting friends and relatives in Washington, D.C., I had the opportunity to go to a few of the fine restaurants that the metropolitan area provides. The food was excellent, the company even better, and the only odd thing was that on three occasions I was carded.

The three ID requests did not come at clubs or bars; they came at Washingtonian Top 50 restaurants.

I will happily accept that I have certain youthful features (my spry gait, for example), but, up close, I do not look anywhere near 20, which leads me to believe that (much to my chagrin) it was not the suppleness of my skin and a genuine fear that I might be a freshman in college that was prompting the age verifications. Rather, it appeared that the wait staff had been warned to be extremely, extremely cautious (indeed, when I inquired at Jaleo, I was told that a bartender at the restaurant had been dismissed on the spot recently as a result of an “underage sting”).

There is no doubt that alcohol abuse in the United States is a very grave concern, but is ensuring that food and beverage establishments review the driver’s license of anyone who might possibly be under 30 a prudent use of our limited resources? I, for one, question whether a “rigorous age identification” approach to preventing negative social outcomes from drinking is the appropriate one.

Indeed, it seems almost laughable when one considers the broader context.

Ordering a bottle of wine for the table to go along with the first round of tapas at Jaleo prompts a carding, but order a second, or third, and the waiter doesn’t bat an eyelash. Add a nice Port for desert and all you get is smiles. On your way out, as long as you don’t literally fall on your face, does anyone check to see if you can safely operate a motor vehicle? Or inquire into how many pints you’ve had when you leave the bar next door? (As a colorful detail, I’ll tell you that when I left one of the restaurants in Northern Virginia, there was a man, barely able to keep his balance, urinating against a building as the bouncer at the bar he had evidently just come out of paused in his ID-checking duties to look on and laugh.) And even if you’re well over the limit, how likely is it that you actually get pulled over when you drive home?

On New Year’s, we took a cab from D.C. back to Virginia (where we were staying) at two in the morning. Driving back on Route 66, I can tell you that I saw at least 10 drivers exhibiting clear signs of dangerous levels of intoxication (weaving, erratic speeds, and even attempts to backup on the highway after a missed exit). The police who were patrolling the highway had pulled over a grand total of three people of the hundreds passing by.

11,773 people died in alcohol-impaired driving crashes in 2008. Thousands more were injured or killed in alcohol-fueled violence. And millions of dollars of property was damaged by drunken individuals.

If D.C., Virginia, and other states want to eliminate these ills, they need to get more serious about treating the roots of the problems. Undercover ID inspections at fine restaurants isn’t going to do it.

The real solutions are far more difficult and costly. Among other things, we need to think sincerely about concentrating development and improving public transportation to reduce the number of people who drive while intoxicated. We need to consider taxing alcohol more heavily to reduce consumption and using the money to more rigorously police (and prosecute) antisocial behavior fueled by alcohol. We need to invest in alcoholism treatment programs and youth education. And we need to figure out acceptable ways to intervene in drinking behavior after the moment it is initiated.

  January 14, 2010 at 9:43 am   Posted in: Uncategorized   Print This Post   8 Comments

Do We Need A Password Coordination Agency?

posted by Adam Benforado

There is a lot of discussion out there about the injustice of bankers getting 8-figure bonuses—and I’m all for the ire (Too soon?  Yes, too soon.)—but, today, I’ve got more pressing matters on my mind.

Yes, there is a new 8-figure menace on the horizon.

Westlaw’s OnePass.

It seems that, once again, I must change one of my passwords. According to Westlaw, choosing a new 8-to-70-character-long password that must include uppercase letters, lowercase letters, and numerals (or special characters), will result in “more security, more control, [and] more convenience.”

Perhaps for Westlaw, but what about for me?

I’ve got so many passcodes in my head (for email accounts, checking accounts, personal and work computers, wireless routers, gas, electric, cable, and telephone company accounts, retirement accounts, student loan accounts, voicemail accounts . . . I could go on and on) that I’m either constantly forgetting them or I have them written down in embarrassingly obvious places. And every month it seems like I’m forced to change one or another (usually right at the moment that I have it committed to memory).

Enough is enough. I am hereby calling on President Obama and Congress to table this whole Consumer Financial Protection Agency business (in fact, better take a breather on global climate change, job creation, and terrorism, just to be safe) and focus on creating a new Password Coordination Agency.

We’ve seen the world of unregulated passwords and it is not pretty.

  January 12, 2010 at 8:10 pm   Posted in: Uncategorized   Print This Post   5 Comments

Blind Consumption

posted by Adam Benforado

I was down in D.C. last Friday when the Anacostia River Cleanup and Protection Act first went into effect instituting a 5-cent fee on each disposable plastic or paper bag issued in the District.

The money is to go to cleaning up the Anacostia River (which badly needs it), but the main goal for the law is to change consumer behavior.

Although skeptics abound, I’m excited to see the outcome. Sure, five cents, isn’t much, but I think it’s enough to make people stop and think about their consumption.

With so much on our minds, we need a little encouragement. I happened to care a lot about clogged rivers and tributaries—and the environment more generally—but I find it hard without a little nudge to change my daily routines.

Today, on the way home from buying some books, I stopped into CVS for a half-gallon of milk and some cereal (see picture). When I got home I found that I’d been given eight bags to carry the three items (see picture)! (Somewhat ironically, the Washington CVS stores recently partnered with the D.C. Department of Environment to provide 112,000 free reusable bags to customers in the metropolitan area.  Hopefully, they haven’t been handing them out eight at a time.)

This needs to change and I, for one, would welcome the adoption of a similar law in my hometown.  Would you?

****

On a side note, for those art and film lovers out there, there is a tremendous short film, Next Floor, engaging the theme of overconsumption, being shown until April 11, 2010 at the Hirshhorn Gallery in D.C. The film garnered the creator and producer, Phoebe Greenberg, the award for Best Short Film at the Cannes Film Festival in 2008. I highly recommend it.

  January 8, 2010 at 3:07 pm   Posted in: Uncategorized   Print This Post   7 Comments

Practical Advice for Victims of Stalking

posted by Adam Benforado

I am very sorry to have to miss the AALS panel on Saturday, “The First Amendment Meets Cyber-Stalking Meets Character and Fitness,” as it looks to be a fascinating discussion. (Like many readers, I have enjoyed Danielle, Kaimipono, and Dave’s past posts on the topic).

In this post, however, I’d like to broaden the focus to include classic, old, “real-life” stalking and ask a rather simple question: What is the best practical advice to give someone who is being stalked?

It’s National Stalking Awareness Month and I’d love to hear from commenters about what they tell people who come to them seeking advice for dealing with incidents of stalking. In the past, I’ve had multiple friends who have suffered harassing phone calls, threatening emails, and physical surveillance from obsessed exes and over-zealous suitors and I’ve struggled to give advice that I thought would actually be effective in bringing a swift and final end to the abuse (without exacerbating the problem).

There is some good data on the internet but it is often difficult to wade through or outdated. Stalking: A Handbook for Victims by Emily Spence-Diehl, for example, is a useful resource and offers a step-by-step guide to addressing abuse, but it is over ten years old.

Given data on the prevalence of victimization (according to a national study released last year by the U.S. Department of Justice, Bureau of Justice Statistics (BJS), during a 12-month period 3.4 million people reported being the victims of stalking), I’m guessing that there are many Co-Op denizens that might benefit from learning about the latest proven approaches.

I’ll get the ball rolling by suggesting that one of the easiest ways to take action is to talk directly to a trained professional who can help design a stalking safety plan. The National Center for Victims of Crime (NCVC) can be reached at 1-800-FYI-CALL, M-F 8:30 AM – 8:30 PM EST. The NCVC can also be contacted by email at gethelp@ncvc.org.

  January 6, 2010 at 8:21 am   Posted in: Uncategorized   Print This Post   4 Comments

Are They Law Students? Or Legal Education Customers?

posted by Adam Benforado

In case you missed it, there is an interesting debate in the New York Times today over whether business schools ought to treat enrollees as “customers” or “students.” The back and forth was prompted by a recent article in the Chicago Tribune and, in the exchange, Stephen Joel Trachtenberg (president emeritus, George Washington), Edward A. Snyder (dean, University of Chicago Booth School of Business), David Bejou (dean, Elizabeth City State University School of Business), Richard Vedder (professor of economics, Ohio State University), and Mark C. Taylor (professor of religion, Columbia University) make some provocative points.

Although it is not always made so explicit, it seems to me that many law schools are struggling with the same concerns. How much control should law students have over the exact trajectories of their educations? Should there be more mandatory courses or more electives? How much time should professors spend on their teaching versus their scholarship? Should students be able to dictate (or at least have input on) how professors teach, what they teach, and when they teach? Should students be permitted to attend faculty meetings?

While the comparison seems natural, it is also worth thinking about how the M.B.A. context might potentially be different from the J.D. context.

Perhaps the New York Times should sponsor another debate?

  January 4, 2010 at 1:04 pm   Posted in: Education   Print This Post   17 Comments

The Strange World Of John Mackey

posted by Adam Benforado

John Mackey, CEO of Whole Foods, is an intriguing character and, in the past, I’ve used him (and the company he co-founded) to spark discussion in my Business Organizations class on a range of topics including stakeholder interests (Whole Foods seven “core values” are a nice jumping off point) and corporate compensation (no one at Whole Foods is permitted to earn, as a salary, more than 19 times what the average employee makes), among others.

Thus, I was excited to see a profile of Mackey in the most recent copy of the New Yorker. The article drags at points, but for corporate law scholars I think it’s worth a skim through. In some ways, Mackey is a one-of-a-kind CEO, but his successes, failures, dreams, and theories may be indicative of broader dynamics.

  January 4, 2010 at 8:21 am   Posted in: Uncategorized   Print This Post   No Comments

“Be Simon Cowell for a Day!” and Other Catchy New Court System Slogans . . .

posted by Adam Benforado

I am looking forward to jury service in January and, thus, was not surprised that commenters on my last post expressed a similar level of interest/excitement/desire with respect to jury service.

Clearly, part of my positive feelings about serving has to do with my good fortune at having a job that allows me the freedom to take off a day or two without serious consequences. Many people do not have this luxury and the lowly compensation offered by the court system is simply not enough to make up for missed days of work.

That said, I’m still surprised at the lengths people go to get out of jury service and my sense of general negative sentiments related to serving.

The reason for my wonderment is that Americans seem to love “jury panels” and judging. American Idol. Top Chef. Survivor. America’s Next Top Model. So You Think You Can Dance.

How can we be so willing to spend hours each night watching “reality” panels condemn or reward people and texting in our “votes” and so unwilling to participate in real-life panels?

You might think it was the subject matter, but we love legal dramas. Law and Order. Judge Judy. The Practice. I could go on . . .

Maybe court systems around the country should spend less time lecturing people about how jury service is a duty owed by each citizen and more time emphasizing that jury service can actually be interesting and enjoyable.

  December 29, 2009 at 10:39 am   Posted in: Uncategorized   Print This Post   4 Comments

Duty Calls

posted by Adam Benforado

For the first time since becoming a law professor, I’ve been called for jury duty.

For trial attorneys out there, I’m curious: would you rather have a law professor on a jury or a practicing litigator?

Dave blogged last year about his day of jury service in Philadelphia’s First District, but his panel never actually saw a judge.

Dan had a nice post earlier this year on a full-time law professor who acted as a jury foreperson and was then accused by the defendant of improperly influencing his fellow jurors.

My sense is that if you are worried about domination by a single individual, you’d be best to steer clear of professors of any type. For better or for worse, many of us academics like to hear ourselves speak, fancy ourselves rather gifted at “boiling things down” for others, and are experts at twisting arms and delivering subtle barbs in small groups (yes, it turns out that faculty meetings do train you for something other than competing on “Survivor”).

For law professors out there: have you ever served on a jury while a professor? If so, were you the foreperson?

  December 28, 2009 at 7:39 am   Posted in: Criminal Procedure, Law Practice   Print This Post   7 Comments

Cold Cash for Coldplay?

posted by Adam Benforado

Dear Chris Martin,

First off, hello to Gwyneth and Apple; please give them my best.

Okay, let’s get down to business. I was just watching a clip of Alicia Keys performing Empire State of Mind on the Colbert Report (with Colbert filling in, rather ably, for Jay-Z) and I must say that the chorus of the new song sounds quite a lot like your 2002 hit The Scientist. In fact, if my ear is not mistaken, it’s even in the same key.

Now, I’m not suggesting that you sue her. I just want to throw out as a little reminder that George Harrison was docked $400,000 because My Sweet Lord (“Hare Krishna”) echoed the Chiffons’ single He’s So Fine (“Doo lang, doo lang, doo lang”) from seven years earlier. And separate juries found that the Bee Gees’ How Deep Is Your Love? was too indebted to Ronald Selle’s Let it End, and Morris Albert’s Feelings copied Louis Gaste’s Pour Toi. I could go on.

The point is, there’s some money here just sitting on the table and I say WE grab it. Settlement is the way to go (because those pesky appellate judges can overturn things, as Mr. Selle found out). The time to act is now. My fee is totally reasonable.

I mean, think about it this way: this is a golden opportunity to make up for that undisclosed settlement you had to pay out to guitarist Joe Satriani last September after he sued you because the title track from Viva La Vida sounds, well, quite a lot like his If I Could Fly (see here) . . .

Even-Steven. Am I right?

Your pal,

AB

  December 23, 2009 at 8:25 am   Posted in: Uncategorized   Print This Post   One Comment

Exploiting Familial Ties

posted by Adam Benforado

At 5:44 AM on Sunday, I received a lengthy email from a stranger in which the author recounted his life history, apologized for various grammatical and spelling mistakes in the note, and then, in a shocking surprise, did NOT ask me to transfer money to an offshore account in order to secure my share of a fortune locked up by despotic rulers in Africa.

No, the author (EI) did not want to defraud me; he wanted to tell me about the “fraud” that he’d experienced.

EI had come across an article that I wrote in the Philadelphia Inquirer back in August about the need for a consumer financial protection agency and he thought I would be interested in his interactions with Discover.

EI is from the fading generation of Americans who grew up on the notion that a person never bought anything that they did not have the cash for. However, he recently found out that his daughter had run up $2300 on her credit card, which with interest and penalties had ballooned to $6500. EI was very worried about his daughter being “behind the curve all the rest of her life” and so he negotiated with Discover to pay cash out of his own pocket to settle the matter with the company. EI is not a rich man, but he wanted to make sure “they would never bother [his] daughter again.”

So what happened?

The very next month, Discover sent his daughter a new credit card application.

Ugh. I’d love to think that this story is extremely unusual, but it’s not. EI’s experience reveals a highly effective and proven strategy for the credit card industry: think of your customer base not as isolated “individuals” but as “units.” The ideal unit is composed of an irresponsible and cash-strapped member of the credit generation and an older relative who is skeptical of debt, cares about the younger relation (and the family reputation), and has savings to dip into. The first half of the unit charges and charges and charges; the second half pays and pays and pays.

Earlier this month, the House of Representatives passed the Wall Street Reform and Consumer Protection Act and the pressure is now on the Senate, where draft legislation is currently before the Senate Banking Committee (the bill will probably come to the Senate floor in February or March). As a result, there is going to be a push by the industry in the next few months to portray the battle as one over personal responsibility. We are going to hear a lot about “greedy” Americans living beyond their means. As the din grows louder, however, let’s not forget about all of the EIs out there — the frugal, responsible Americans who help the ones they love when they fall on hard times – and the companies that exploit them.

  December 21, 2009 at 6:57 am   Posted in: Uncategorized   Print This Post   9 Comments

The Benefits of Cultural Funding

posted by Adam Benforado

In a reversal of the Bush years and later Clinton years, President Barack Obama has shown a firm commitment to the arts as a societal good.

He has brought musicians of all sorts to the White House for performances and educational sessions, as well as backing $100 million in new cultural funding. In addition, the National Endowments for the Arts and Humanities have received their largest allocations of federal money in 16 years.

Jim Leach, the former Iowa Republican representative and head of the humanities endowment has championed arts spending by arguing that public money spent on the arts and humanities helps “to bring perspective to issues of the day.” However, a new study from Norway of nearly 50,000 people suggests that cultural engagement may have a more direct positive impact on members of the public.

As summarized at ScienceDaily, according to researchers at the Norwegian University of Science and Technology,

[i]f you paint, dance or play a musical instrument—or just enjoy going to the theatre or to concerts—it’s likely that you feel healthier and are less depressed than people who don’t . . . .

. . .

“There is a positive relationship between cultural participation and self-perceived health for both women and men,” says Professor Jostein Holmen, a . . . researcher who presented the findings, which have not yet been published . . . . “For men, there is also a positive relationship between cultural participation and depression, in that there is less depression among men who participate in cultural activities, although this is not true for women.”

In the study, the researchers controlled for socioeconomic status, social capital, chronic illness, and smoking and alcohol use, among other factors.

For lovers of the arts, all of this is promising. Still, the verdict is out on whether Obama will truly be a “culture” president. His administration ran into trouble earlier this year when an official at the arts endowment, Yosi Sergant, encouraged artists to focus their work on assisting Obama’s agenda on health care, education, and the environment. This led the White House to issue guidance to agencies to be firm in not allowing politics to play a part in public grants. (For those who are interested, in a previous op-ed in the Washington Post, I considered the dangers that powerful non-governmental entities—particularly corporations—pose to the independence of art.)

We shall see what 2010 brings.

  December 17, 2009 at 8:31 am   Posted in: Uncategorized   Print This Post   No Comments

You Can’t Copyright “Convicted Rapist”

posted by Adam Benforado

Former South Dakota Representative Ted Alvin Klaudt sent a notice to The Associated Press and a few other news outlets on Monday informing them that he was reserving a common-law copyright for his name and that anyone who used it without his express consent would be on the hook for $500,000.

Two years ago, Klaudt was convicted of second-degree rape for coercing his two teenage foster daughters into a fake “fertility” examination, purportedly to assist them in acting as egg donors.

He got 44 years.

And, oh, yeah, 10 more for witness tampering.

The Associate Press has decided to risk it, despite Klaudt’s warning. As reported in the New York Times:

Laura Malone, associated general counsel for intellectual property at The Associated Press, said names of people, companies and products cannot be protected under copyright law. Names can be protected under trademark law, but only in association with goods or services used in commerce, she said.

“Even if there was a valid trademark, the mere use of the name in a news story is not an infringement of trademark,” Malone said Tuesday.

“There is no legal substance to these claims,” she added.

Well, Mr. Klaudt, it was worth the try . . .

  December 16, 2009 at 7:10 am   Posted in: Uncategorized   Print This Post   One Comment

Buy Now! New and Improved Edition!

posted by Adam Benforado

Say what you will about Aspen, West, and the rest, but the recent rise of the used textbook market (particularly online) has been tough on publishers seeking profit growth and to keep revenues up they have looked for ways to fight back.

One of the main approaches has been to pump out new editions of casebooks more and more frequently.

I have found this frustrating, not only because I would like my students not have to fork over a hundred and fifty bucks for a book unless it is absolutely necessary, but also because it requires constant updating of teaching materials by professors (or their assistants), which takes away from other academic pursuits. Clearly, some of this revision of teaching notes can be beneficial (e.g., learning about new developments in case law), but a lot of it is tedious make-work (e.g., updating page numbers).

I taught my current Business Organizations textbook exactly one time before it was “updated.” When I asked for a list of changes from the publisher so that I didn’t have to do a comparison myself, I was denied, which struck me as odd at the time, but made some sense after I completed the comparison. There wasn’t much different other than an altered thickness and width of the paper and a few changes to cases toward the end of the book.

It all seems like a waste of money, time, and paper.

Is there a better way forward?

Online enrichment tools? Rapidly disintegrating pages? Kindle copies?

If you have an idea, let’s hear it . . . operators at the major legal publishing houses are standing by.

  December 15, 2009 at 7:29 am   Posted in: Uncategorized   Print This Post   5 Comments

Do Professors Like Anonymous Grading?

posted by Adam Benforado

No one likes grading (well, . . . almost no one). I’m still a new kid on the block, but I’ve collected enough data points (or, more accurately, I’ve heard enough bellyaching) in my short time in the neighborhood to feel fairly confident in that assertion.

However, if grading must be done, what is the best approach? My impression is that while my students are generally big fans of anonymous assessment, my colleagues at Drexel and elsewhere may not be.

Part of this phenomenon has to do with the realization by many legal academics that blind grading can result in some “unfortunate” outcomes. We have all had the student that we think is bound for great things do poorly on our exam and the deadbeat student get a B+ (or even an A-). That hurts given that potential employers (law firms, judges, and others) use grades as a primary screening tool when deciding between candidates.

That said, I think my discomfort comes from a slightly different place: while acknowledging the strong counters in literary theory and elsewhere, I tend to believe that texts ought not to be separated from their authors. It is authors as much as words that mark our paths through emails, essays, articles, short stories, and exams.

Certainly, knowing the identity of the author can cause distortions in meaning, but so can not knowing the identity of the author.

What’s so fair about denying a student the right to shape the meaning of her words on an exam? And is it true that when there is only a student ID number involved we, the exam graders, forget about authors altogether . . . or is that we make guesses and implicit assumptions about identities and then allow the texts to be indelibly stamped by our imagined authors?

If anything, objectivity and unbiased assessment is far more critical in the legal world outside the classroom (lives, liberties, and billions of dollars are often at stake) and yet anonymous authorship of texts is the exception. I do not mean to suggest that the situations are entirely parallel but it is worth considering the fact that lawyers almost always sign their names to work they submit for assessment, whether it is a motion or amicus brief or a memo to a client. Knowing the identity of the author is important enough to outweigh other concerns.

Is this true with respect to law school exams? I’m not sure, but I do know that approaches like adding a participation component to the final grade don’t really address the problem (although they may go some distance to avoiding the sting of giving a student who has proven himself to be incompetent throughout the semester a B+).

  December 14, 2009 at 7:35 am   Posted in: Uncategorized   Print This Post   34 Comments

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