Archive for the ‘Articles and Books’ Category

Harvard Law Review Privacy Symposium Issue

posted by Daniel Solove

The privacy symposium issue of the Harvard Law Review is hot off the presses.  Here are the articles:

SYMPOSIUM
PRIVACY AND TECHNOLOGY
Introduction: Privacy Self-Management and the Consent Dilemmas
Daniel J. Solove

What Privacy is For
Julie E. Cohen

The Dangers of Surveillance
Neil M. Richards

The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures
Paul M. Schwartz

Toward a Positive Theory of Privacy Law
Lior Jacob Strahilevitz

  May 21, 2013 at 10:52 am   Posted in: Articles and Books, Privacy, Privacy (Consumer Privacy), Privacy (Law Enforcement), Privacy (Medical)   Print This Post   No Comments

Privacy Self-Management and the Consent Dilemma

posted by Daniel Solove

I’m pleased to share with you my new article in Harvard Law Review entitled Privacy Self-Management and the Consent Dilemma, 126 Harvard Law Review 1880 (2013). You can download it for free on SSRN. This is a short piece (24 pages) so you can read it in one sitting.

Here are some key points in the Article:

1. The current regulatory approach for protecting privacy involves what I refer to as “privacy self-management” – the law provides people with a set of rights to enable them to decide how to weigh the costs and benefits of the collection, use, or disclosure of their information. People’s consent legitimizes nearly any form of collection, use, and disclosure of personal data. Unfortunately, privacy self-management is being asked to do work beyond its capabilities. Privacy self-management does not provide meaningful control over personal data.

2. Empirical and social science research has undermined key assumptions about how people make decisions regarding their data, assumptions that underpin and legitimize the privacy self-management model.

3. People cannot appropriately self-manage their privacy due to a series of structural problems. There are too many entities collecting and using personal data to make it feasible for people to manage their privacy separately with each entity. Moreover, many privacy harms are the result of an aggregation of pieces of data over a period of time by different entities. It is virtually impossible for people to weigh the costs and benefits of revealing information or permitting its use or transfer without an understanding of the potential downstream uses.

4. Privacy self-management addresses privacy in a series of isolated transactions guided by particular individuals. Privacy costs and benefits, however, are more appropriately assessed cumulatively and holistically — not merely at the individual level.

5. In order to advance, privacy law and policy must confront a complex and confounding dilemma with consent. Consent to collection, use, and disclosure of personal data is often not meaningful, and the most apparent solution – paternalistic measures – even more directly denies people the freedom to make consensual choices about their data.

6. The way forward involves (1) developing a coherent approach to consent, one that accounts for the social science discoveries about how people make decisions about personal data; (2) recognizing that people can engage in privacy self-management only selectively; (3) adjusting privacy law’s timing to focus on downstream uses; and (4) developing more substantive privacy rules.

The full article is here.

Cross-posted on LinkedIn.

  May 21, 2013 at 10:49 am   Posted in: Articles and Books, Consumer Protection Law, Privacy, Privacy (Consumer Privacy), Privacy (Medical), Technology   Print This Post   One Comment

Last Call for Contracts Survey

posted by admin

 

 

 

 

 

Contracts teachers are asked to complete a brief online survey to help the planning and execution of a symposium Washington Law Review is preparing to host on the exciting new book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, by Lawrence A. Cunningham of George Washington University (published by Cambridge University Press in 2012).

This innovative text embraces a modern, narrative approach to contract law, exploring how cases ripped from the headlines of recent years often hinge on fundamental principles extracted from the classic cases that appear in contracts casebooks. Such an approach suggests new ways to imagine modern casebooks.  In addition to an article by Prof. Cunningham, the WLR will publish in its December 2013 issue  a half dozen pieces by many luminaries and notables, including:

Charles Knapp (NYU/Hastings)

Brian Bix (Minnesota)

Erik Gerding (Colorado)

Jake Linford (Florida State)

Jennifer Taub (Vermont)

To help these scholars and WLR editors with this effort, please fill out the online survey today!

 

  April 11, 2013 at 4:00 pm   Posted in: Articles and Books, Contract Law & Beyond, Law Rev (Washington), Law School (Teaching)   Print This Post   No Comments

Bad Book Reviews by Bad Reviewers

posted by Lawrence Cunningham

The disease of critics who write book reviews without first reading the subject book is spreading.

The illness [bad book reviews by bad reviewers] erupted in January when amateurs attacked Randall Sullivan’s biography of Michael Jackson with a campaign of negative 1-star reviews on amazon.  It spread to the professional class last month with illiterate attacks on Sheryl Sanbderg’s book “Lean In”  run in Forbes and the New Republic.  Amid the epidemic, the Columbia Journalism Review’s Ryan Chittum now denigrates books after reading reviews written by non-readers.

Bad book reviews thus must be taken with a grain of salt these days.   Especially for books addressing controversial topics, “reviewers” reflect what they believe about the topic. They do not engage with the substance of the book author’s argument or the content of her book.

It is easy to spot some such faux reviews, broadcast by inane headlines favored by the 1-star posters at amazon.   But the more sophisticated versions are harder to detect.  Writers make references to the book, giving a summary of its arc or stating the broad thesis. Yet they leave clues.  Look for a snarky tone, particularly strident language, straw men, and hyperbole.  Be especially skeptical of any review that cannot find one redeeming point to make about a book.

Helpful also are crowd-sourcing techniques.  As one example, reviewers on amazon are rated by other customers.  Seek out those having earned a great number of “helpful” votes.  Amazon even has designations such as “hall of fame” and “top 1oo reviewer” for such people.  Read those reviews and you will invariably find reliable information and analysis.  (My own favorite is Robert Morris, a top reviewer who has reviewed two of my books in a constructive, and favorable, manner.)

In the old days, literati cocktail party-goers would joke about not having read a book but having read its reviews.  It was a bit of a dodge but you could at least count on the reviewer having read the book.  Pity those days are gone.

  March 20, 2013 at 6:13 pm   Posted in: Articles and Books, Book Reviews   Print This Post   No Comments

Bright Ideas: Mark Weiner on his new book Rule of the Clan

posted by Deven Desai

Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.

His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:

A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.

The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”

I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.

Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?

Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.

So why clans now?

Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.

Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.

Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.

The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.

I think you are saying there is something about clans that helps us organize and understand our world. What is it?

It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.

By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.

Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?

Read the rest of this post »

  March 19, 2013 at 1:47 pm  Tags: clans, Constitutional Law, international law, rule of law, terrorism, War on Terror  Posted in: Articles and Books, Bright Ideas, Constitutional Law, History of Law, International & Comparative Law, Jurisprudence   Print This Post   One Comment

The Rule of the Clan – Mark Weiner’s new book

posted by Deven Desai

What is happening with the world? Is it falling apart? Is the state the problem? Is everything to big? Is everyone better off breaking into small groups? Mark Weiner has answers in his book The Rule of the Clan. Understanding clans helps us understand the problems and relationships among individual liberty, the state, domestic policy, and foreign policy.

Mark Weiner is one of the best thinkers I know. I will note that Mark is one of my dearest friends as well. Mark has authored three books. The first two have won awards. The latest, Rule of the Clan, is, to me, yet more impressive. I will be posting more about this book. But for now, here is Mark on the Brian Lehrer Show.

  March 15, 2013 at 2:05 pm   Posted in: Articles and Books, Constitutional Law, Culture, History of Law, International & Comparative Law, Law and Humanities   Print This Post   No Comments

AIG Book Event at 92d St Y

posted by Lawrence Cunningham

At the 92d Street Y in New York Tuesday night, Betty Liu of Bloomberg TV will moderate a discussion with Hank Greenberg and me about our recent book, The AIG Story.  The book has been widely reviewed, with most reviews (such as by James Freeman and John Coyne) quite favorable, although several have been written by authors (especially Susan Antilla and also Kathryn Canavan) whose biases and erroneous preconceptions prevented them from reading the book or rendering a fair account.

We’ve also been doing various book events, in New York and Washington, starting with the Asia Society and including earlier this week at Cardozo Law School (where I’m visiting) and later this term at Fordham Law School (where I visited last term).  The setting and format at the Y should make for a real treat, and I was delighted to see the event listed in the “Spare Times” section of today’s New York Times under Spoken Word as well as in “Books and Ideas”section of this weekend’s Wall Street Journal under Ideas.

  March 15, 2013 at 10:35 am   Posted in: Articles and Books   Print This Post   One Comment

The Cultural Construction of the Bicycle

posted by Aaron Saiger

Before automobiles first appeared in urban spaces, parents regularly sent children outside to play in the street. Today, noone would hesitate to label any parent who did that as reckless. The cultural distance between then and now is substantial. Readers interested in its course should check out Peter Norton’s excellent, and consistently surprising, Fighting Traffic.

I am regular bike commuter in New York City, along with an increasing number of other people. Bikes, under the law, are supposed to follow the same rules of the road as motor vehicles. But many cyclists, here in New York at any rate, don’t. They slow rather than stop at red lights and stop signs. They weave around pedestrians in crosswalks. They go the wrong way on one way streets. It’s a great case study of why people obey the law: we cyclists break these rules because they seem so manifestly unsuited to our circumstances. I yield rather than stop for some red lights and some pedestrians, when it seems clearly safe to do so (although I draw my personal line at salmoning upstream in a one-way zone). But I would never in a million years blow through a red light when driving a car. Even in the middle of the night, even if  nobody is coming and I know nobody is coming, I sit there patiently in the empty intersection until the light turns green.

Can the law take the lead in developing rules that make enough sense for biking for transport that cyclists would obey them? Or must we await, as we did in the case of automobiles, a new cultural construction of bicycling? (As Norton demonstrates, a lot of people died in “accidents” while the new construction of the car was emerging.) Is the wait worth it if that new construction would be optimized by what my colleagues Sonia Katyal and Eduardo Peñalver might call bicyclists’ productive disobedience? Notwithstanding my wish for a more top-down approach, it seems that  lawyers and regulators have given more thought how to optimize traffic rules for driverless cars than for bicycles.

I was in London two weeks ago giving a paper, where the bike share system has made urban cycling even more ubiquitous than it is in New York. A few days’ observation found, just as in New York, cyclists ignoring red lights and going the wrong way on one way streets.  But I didn’t see one instance in London of two cyclist behaviors I see regularly here:  failing to stop for pedestrians and riding on the sidewalk.  London cyclists’ disobedience seems more productive than New Yorkers’.

  March 6, 2013 at 7:32 pm  Tags: automobiles, bicycles, driverless cars  Posted in: Administrative Law, Articles and Books   Print This Post   5 Comments

Is Forensics Law?

posted by Ryan Calo

I’ve blogged on these pages before about the claim, popularized by Larry Lessig, that “code is law.”  During the Concurring Opinions symposium on Jonathan Zittrain’s 2010 book The Future of The Internet (And How To Stop It), I cataloged the senses in which architecture or “code” is said to constitute a form of regulation.  “Primary” architecture refers to altering a physical or digital environment to stop conduct before it happens.  Speed bumps are a classic example.  “Secondary” architecture instead alters an environment in order to make conduct harder to get away with—for instance, by installing a traffic light camera or forcing a communications network to build an entry point for law enforcement. Read the rest of this post »

  March 3, 2013 at 7:37 pm   Posted in: Amazon, Architecture, Articles and Books, Conferences, Cyberlaw, Uncategorized   Print This Post   17 Comments

The Disclosure Crisis

posted by Ryan Calo

Thank you to Danielle for the lovely (re)introduction and to Concurring Opinions for inviting me to blog this month.

The Washington Law Review hosted a symposium Thursday entitled “The Disclosure Crisis,” which covered everything from privacy policies to restaurant hygiene grades. The gist of the conference, on my view, was that the only thing piling up faster than examples of mandated disclosure as a regulatory strategy is the evidence it does not work. Time and time again, officials choose to intervene in a given area by requiring companies and others to reveal information so that individuals can protect themselves and police the market. And time and time again, disclosure ends up helping few if any consumers or citizens actually make better decisions.

Read the rest of this post »

  March 2, 2013 at 6:43 pm   Posted in: Administrative Law, Articles and Books, Behavioral Law and Economics, Law Rev (Washington)   Print This Post   One Comment

New Edition of The Essays of Warren Buffett: Lessons for Corporate America

posted by Lawrence Cunningham

It is a pleasure to announce the coming publication of a new edition of The Essays of Warren Buffett: Lessons for Corporate America, expected to be available around March 8.  Along with the vintage content from previous editions that has made this collection a long seller, I am adding essays from Buffett’s annual letters to Berkshire Hathaway shareholders since 2008, the date of the prior edition. New material addresses:

●the financial crisis and its continuing implications for investors, managers and society

●the housing bubble at the bottom of that crisis

●the debt and derivatives excesses that fueled the crisis and how to deal with them

●controlling risk and protecting reputation in corporate governance

●Berkshire’s acquisition and operation of Burlington Northern Santa Fe

●the role of oversight in heavily regulated industries

● investment possibilities today

●weaknesses of popular option valuation models

Some other material has been rearranged to deepen the themes and lessons that the collection has always produced:

● Buffett’s “owner-related business principles” are in the prologue as a separate subject

● valuation and accounting topics are spread over four instead of two sections and reordered to sharpen their payoff.

Those who are familiar with The Essays will notice from the accompanying image that we have made the cover snappier than has been our custom.  (Thanks for the cover design to Tim Colton, of Carolina Academic Press, which will continue to partner with me in the distribution of the book.) The main reason: the book’s traditional covers could be seen well in physical form but pictures of them, shown on the internet, could not. Since most sales are done over the internet these days, the cover needed a face lift.  

The adage remains, however, that one should not judge a book by its cover.  This book should continue to be judged on its content and organization, in which a distinctive investment and business philosophy is coherently articulated.  

Thanks to the many fans of the book, first published in 1997.  I hope you enjoy the updated edition.   And I hope to see many of you in Omaha for the Berkshire shareholders’ meeting in May. 

  February 7, 2013 at 7:33 am   Posted in: Articles and Books   Print This Post   No Comments

Harvard Law Review Symposium on Privacy & Technology

posted by Daniel Solove

  November 5, 2012 at 3:43 pm   Posted in: Articles and Books, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Technology   Print This Post   15 Comments

Brin’s “Existence,” the Fermi Paradox, and the Future of Privacy

posted by Peter Swire

I just finished David Brin’s “Existence,” his biggest new novel in years.  Brin, as some readers know, has won multiple Hugo and Nebula awards for best science fiction writing.  He also wrote the 1999 non-fiction book “The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom?”.  More about that in a bit.

Existence is full of big ideas.  A main focus is on the Fermi Paradox, which observes that we would expect to find other forms of life out there among the hundreds of billions of suns, but we haven’t seen evidence of that life yet.  If you haven’t ever thought through the Fermi Paradox, I think it is a Genuine Big Question, and well worth contemplating.  Fortunately for those who like their science mixed with fiction, Brin weaves fifty or so possible answers to the Fermi Paradox into his 550-page novel.  Does climate change kill off other races?  Nuclear annihilation?  Do aliens upload themselves into computers once they get sophisticated (the “singularity”), so we never detect them across the void?  And a lot, lot more.

It took me a little while to get into the book, but I read the last few hundred pages in a rush.  I’ve had the pleasure to know Brin for a bunch of years, and find him personally and intellectually engaging.  I was pleased to read this, because I think it will intrigue curious minds for a long time as our telescopic views of other planets deepen our puzzlement about the Fermi Paradox.

As for privacy, my own view is that the privacy academics didn’t take his 1999 book seriously enough as an intellectual event.  One way to describe Brin’s insight is to say that surveillance in public becomes cheaper and more pervasive over time.  For Brin, having “control” over your face, eye blinks, location, etc., etc. becomes futile and often counter-productive once cameras and other sensors are pervasive and searchable.  Brin picked up on these themes in his earlier novel, “Earth,” when elderly people used video cameras to film would-be muggers, deterring the attacks.  In the new novel, the pervasive use of the 2060 version of Google Glasses means that each person is empowered to see data overlays for any person they meet.  (This part is similar to the novel “Rainbow’s End” by Brin’s friend Vernor Vinge.)

Surveillance in public is a big topic these days.  I’ve worked with CDT and EFF on USvJones.com, which asked law academics to propose doctrine for surveillance in public.  Facial recognition and drones are two of the hot privacy topics of the year, and each are significant steps towards the pervasive sensor world that Brin contemplated in his 1999 book.

So, if you like thinking about Big Ideas in novel form, buy Existence.  And, if you would like to retain the Fair Information Principles in a near future of surveillance in public, consider Brin more carefully  when you imagine how life will and should be in the coming decades.

  August 17, 2012 at 6:46 pm   Posted in: Anonymity, Articles and Books, Book Reviews, Privacy, Privacy (Electronic Surveillance), Science Fiction, Uncategorized   Print This Post   4 Comments

Call for Nominations for Foundational Works in Health Law

posted by Nicole Huberfeld

The American Society of Law, Medicine & Ethics, the Section of Law, Medicine & Health Care of AALS, and the American Health Lawyers Association seek nominations of foundational works of scholarship in health law, very broadly defined, published in English before December 31, 2010.  We intend to publish an edited volume in an academic press.

Nominations must be accompanied by a brief description, not to exceed 300 words, of the importance of the scholarly work, addressed to:

Ted Hutchinson, Executive Director

American Society of Law, Medicine & Ethics

765 Commonwealth Avenue

Boston, MA 02445

thutchinson@aslme.org

 

The first round of nominations will close on December 31, 2012.

On behalf of the sponsors,

 Kevin Outterson

Boston University School of Law

mko@bu.edu

I. Glenn Cohen

Harvard Law School

igcohen@law.harvard.edu

  July 3, 2012 at 2:58 pm   Posted in: Articles and Books, Health Law   Print This Post   No Comments

Contracts in the Real World

posted by Lawrence Cunningham

Contracts in the Real World: Stories of Popular Contracts and Why They Matter has been released by Cambridge University Press and is available here (amazon.com) and here (CUP site). We hope that teachers of 1L Contracts will assign it or recommend it next fall and expect student interest to be high. The book reviews classic cases and standard doctrines by applying them to current events.  According to colleagues whose endorsements appear on the jacket:

“In Lawrence Cunningham’s engaging new book, Contracts in the Real World, old chestnuts, the foibles of contemporary celebrities and holes-in-one are delivered with flair and without legalese. The neophyte will be informed by this fun book. I am sure Professor Kingsfield would enjoy it much as I did.”  – Joseph M. Perillo, Fordham

“The stories are fascinating, the issues are important, and the explanations are compelling. Lawrence Cunningham has written a splendid book.”- Steven Lubet, Northwestern

“Contracts in the Real World is a fascinating account of how contract disputes are argued and decided, engaging the reader with stories involving celebrity parties or gut-wrenching disputes without losing scholarly sophistication. It is fit for general readers and students of the law, amply demonstrating the common sense that the common law of contracts brings to bear on the battles inevitably arising when promises are broken.” – Donald Langevoort, Georgetown Read the rest of this post »

  May 22, 2012 at 7:15 am   Posted in: Articles and Books, Contract Law & Beyond, Current Events   Print This Post   3 Comments

Harvard Law Review Symposium on Privacy and Technology: Call for Papers

posted by Daniel Solove

The Harvard Law Review is hosting a Symposium this November on the topic of Privacy & Technology.  The Law Review is currently accepting abstracts for papers to be considered for publication in the Symposium Issue.  To be considered for publication, please send an abstract of no more than 750 words to HLRsymposium2012@gmail.com by June 15.  Space in the issue is limited and papers will be selected on a rolling basis, so early submission is recommended.  We strongly prefer abstracts for shorter essays that can be executed in fewer than 12,500 words (about 25 law review pages).

The following proposal gives a taste of what kinds of inquiries we are interested in. We are most interested in papers that challenge old concepts and categories and propose new ones that could potentially drive the development of privacy law in the following decades.

Today, we are witnessing astounding new technologies that efficiently gather, use, and analyze massive amounts of data.  These changes have created a set of profound challenges for regulating privacy, as existing regulatory approaches are straining to keep up with rapid technological advances.  The regulatory ideas and frameworks over the past few decades have failed to adequately respond to the constantly shifting technological landscape. Policymakers—among many different stakeholders—recognize that a new direction is needed for privacy law, but there remains much to be resolved about what direction it should head.  Moreover, deep divides have emerged in how different societies regulate privacy despite the increased need for governments and businesses to share information across borders.  These changes present challenges for the core conceptual underpinnings of privacy itself.  We thus stand at a crossroads about how to regulate privacy and even how to think about privacy.  The road forward will require a deep re-imagining of privacy in both theory and practice.

Read the rest of this post »

  May 21, 2012 at 2:02 pm   Posted in: Articles and Books, Privacy   Print This Post   2 Comments

Frischmann Predicts Prometheus

posted by Michael Burstein

Thanks so much to Frank, Danielle, and Deven for inviting me to participate in this symposium. It’s a great pleasure to discuss my colleague Brett Frischmann’s timely, engaging, and important book about infrastructure.

I’m going to focus my comments on Frischmann’s theory of intellectual infrastructure and how it relates to the structure of intellectual property law. Just a few days after the release of Infrastructure, the Supreme Court handed down its decision in Mayo Collaborative Services v. Prometheus Laboratories. That case presented the question whether certain diagnostic claims were within the scope of patentable subject matter under section 101 of the Patent Act. The Court held that they were not, in a manner that is strikingly consistent with Frischmann’s theory. Hence the title of my post. But Frischmann’s theory may also go a long way toward bringing some order to an area of patent law that has long been confused.

Let’s start with the concept of intellectual infrastructure. Frischmann explains that intellectual or cultural resources can be infrastructural in the same manner as physical goods. So long as the resource is a “nonrival input into a wide variety of outputs” (275), it satisfies the characteristics of infrastructure that Frischmann so richly describes. In turn, that suggests that the case for managing the resource as a commons is strong. Frischmann then explains how this concept applies to ideas. Ideas, he writes, often are infrastructure (subject to a number of complications that I’ll put to the side). So in his view, intellectual property should protect implementations of ideas but not the ideas themselves (286). To sort one from the other, Frischmann turns to the concept of abstraction in copyright law and argues that patent law should follow a similar path.

Now consider Prometheus. The inventors in that case discovered a correlation between the effectiveness of a drug and the amount of certain metabolites of that drug in a patient’s blood. Their patent claimed a method of optimizing the dosage of the drug based on that correlation. The method was simple: (1) administer the drug; (2) determine the amount of metabolites in the patient’s blood; (3) make an inference about drug dosage based on the correlation. Doctrinally, the question before the Court was whether this amounted to a claim on a “natural law” – the correlation between drug dosage and metabolism that happens in the human body – which would be unpatentable under a long-standing exception to the scope of patentable subject matter, or a patentable application of that law.

 

Read the rest of this post »

  April 27, 2012 at 10:25 am   Posted in: Articles and Books, Book Reviews, Infrastructure Symposium, Innovation, Intellectual Property, Symposium (Infrastructure), Technology   Print This Post   No Comments

The Preacher and the Pragmatist: Remembering Derrick Bell

posted by Angela Harris

I’m now old enough to have lived through several moral panics over critical race theory. There was that culture-wars-era (remember those days?) one over whether critical race theorists were destroying the legacy of the Enlightenment by publishing first-person anecdotes; there was the one about whether critical race theorists were anti-Asian and anti-Semitic for criticizing extant standards of “merit” in the context of affirmative action in higher education; connected with that, there was that flap over whether Richard Delgado’s skin was the same color as Richard Posner’s (young people, I swear I am not making this up! Google it!); and, of course, there was that time Jeffrey Rosen blamed O.J. Simpson’s acquittal on, you guessed it, critical race theory.

These are reduced days, and the most recent moral panic over CRT cannot compare in either grandeur or silliness. Still, I experienced a moment of nostalgia when video recently surfaced on YouTube of a sweetly young Barack Obama, then a student at Harvard Law School, introducing Professor Derrick Bell at what appears to be a rally. The tagline attached to the video refers to “radical racist Derrick Bell,” and a related video shows Soledad O’Brien frantically riffing off some clearly inadequate notes as she tries to defend critical race theory as a mainstream academic literature (watching her, I had the urge to shout encouragingly, “EPA!”). The “gotcha” moment that follows shows Bell explaining to an interviewer his sympathy with W.E.B. DuBois’s concept of “the wages of whiteness”: the idea that anti-black sentiment has been so hard to eradicate in American society because it serves the function of keeping poor and disempowered white people content with their lot, willing to identify with elite whites based on the symbolic community of race rather than making common cause with poor folks of other backgrounds based on economic interest.

Seeing Bell explaining this argument in his characteristically soft, courtly voice, and thinking about the juxtaposition of Bell and Obama, made me think about the preacher and the pragmatist. Not Bell as preacher and Obama as pragmatist, but the preacher and the pragmatist within Bell himself.

What’s true in the characterization of Bell as a radical is, of course, his thoroughgoing rejection of America’s official liberal pieties about race, the most important of these being the faith that racism either has already disappeared or could very soon, probably in our grandchildren’s generation (if we could just get rid of affirmative action, or fully implement it, depending on whether you skew right or left).  Bell is probably most famous for two concepts: the idea of “interest convergence” and the conviction that “racism is permanent,” and both – especially the second – were and continue to be deeply emotionally upsetting to many. Interest convergence is the idea that black people (about and to whom Bell largely spoke) will only experience improvement in their material condition to the extent that white people as a group believe that it serves their own interests. The idea that racism is permanent links back to DuBois and undermines another liberal faith: the idea that racism is peripheral rather than central to American society. The Bell who believed racism is permanent also believed that the American social contract is founded on racial identity, that Americanness and whiteness are too bound up in one another to ever be teased apart.

This side of Bell counseled pragmatism rather than idealism, rejecting King’s “I Have a Dream” speech in the most brutal terms. Under this view, the best strategy for black people is to appeal to white self-interest for moderate reforms; and we will never be post-racial as long as there is an America. Bell was accused of nihilism for taking this position. Yet there was another Bell too, a preacher in addition to a pragmatist.

Re-reading his book Confronting Authority, I get the sense that Bell was not an easy colleague, and not because of his personal style. Bell was always warm, gentle and mild-mannered, funny, and dedicated to dialogue even with those with whom he bitterly disagreed. He never came across as the stereotypical Angry Black Man. But he had the discomfiting habit of trying to live up to his principles and expecting everyone else to, too. His account of his personal strike against Harvard Law School – his decision to take leave unless and until a qualified black woman was hired to the full-time tenure-track faculty – is the best example. Like Peter Singer, the philosopher who tries to get affluent people to use their money and privilege on behalf of the worst-off instead of benefitting their friends and family, Bell was always taking an uncomfortable but principled stand and making you have to explain to yourself why you couldn’t do the same. This Bell was an idealist, not a realist. His answer to those who criticized his “permanence of racism” thesis was similarly disconcertingly idealistic: One fights against racism, even though we know it to be permanent, simply because it is the right thing to do, because we have a moral responsibility to do so. Preachers’ kids sometimes grow up to be odd people in this way: trying to live as God wants us to live rather than making the accommodations to social norms and physical and mental comfort that the rest of us do. I have no idea whether Professor Bell was a preacher’s kid, or whether he considered himself religious, but this aspect of his thought and life has that same unnerving quality.

In his book A Secular Age,  Charles Taylor argues that a signal social division of our time is between those who feel that the pleasures and pains of this world are all there is, and those who feel that there is something more. Derrick Bell placed himself on both sides of the divide. He was both a preacher and a pragmatist, deeply principled and deeply strategic. Both sides of him were uncompromising. People like that are seldom easy company, but they challenge us in a useful way: not only with their ideas, but with the shape of their lives.

  April 9, 2012 at 2:15 pm  Tags: critical race theory, Derrick Bell  Posted in: Articles and Books, Civil Rights, Culture, Current Events, Race, Uncategorized   Print This Post   One Comment

Don’t use et al.

posted by Dave Hoffman

As a co-authored piece just recently reminded me, I’ve a huge grudge against the Blue Book.  (Which hasn’t yet escalated on their side to using me as an example as a but see.  Or worse!  Actually, I’m not sure that the great platonic blue book guardians even know I’m mad at them.)  As I wrote in 2007:

“Rule 15.1. R. 15.1 states that when there are two or more authors, you have a choice:

Either use the first author’s name followed by “ET AL.” or list all of the authors’ names. Where saving space is desired, and in short form citations, the first method is suggested . . Include all authors’ names when doing so is particular relevant.

This seems to me to express a pretty strong non-listing preference. The “problem” is that much good interdisciplinary work results from collaborations among more than two authors – it is the nature of the beast . . . This seems like a trivial objection, but it will take on increasing weight over the next ten years as empirical legal studies really comes online in the major law reviews.”

The trend toward interdisciplinary, multiple authored, pieces continues.  And though it’s true that law reviews are a dying beast, there is still no good reason at all for omitting the names of authors in the first footnote in which the work is cited. “Saving space” is a terrible argument: we could do that by getting rid of useless and often inaccurate parentheticals “explaining” the source, often written by cite-checking second year students.

If I were running a law review seeking to differentiate itself, or an author negotiating with a few journals, my deal points would be: (1) color graphics on the web version of the article; and (2) no et al. usage.  That has to be more constructive and useful than “lead article” status!

  March 8, 2012 at 12:53 pm   Posted in: Articles and Books, Law School (Scholarship)   Print This Post   2 Comments

LTAAA Symposium: Complexity, Intentionality, and Artificial Agents

posted by Samir Chopra

I would like to respond to a series of related posts made by Ken Anderson, Giovanni Sartor, Lawrence Solum, and James Grimmelmann during the LTAAA symposium. In doing so, I will touch on topics that occurred many times in the debate here: the intentional stance, complexity, legal fictions (even zombies!) and the law. My remarks here will also respond to the very substantive, engaged comments made by Patrick O’Donnell and AJ Sutter to my responses over the weekend. (I have made some responses to Patrick   and AJ in the comments spaces where their remarks were originally made).

Read the rest of this post »

  February 20, 2012 at 4:32 pm  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Articles and Books, Cyberlaw, Legal Theory, Symposium (Autonomous Artificial Agents), Technology   Print This Post   4 Comments

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