Archive for the ‘Articles and Books’ Category

Fourth Amendment Pragmatism

posted by Daniel Solove

I just uploaded the final published version of my essay, Fourth Amendment Pragmatism, 51 B.C. L. Rev. 1511 (2010) to SSRN.  Here’s the abstract:

In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question – Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question – How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.

  November 30, 2010 at 10:28 pm   Posted in: Articles and Books, Criminal Procedure, Privacy, Privacy (Law Enforcement), Privacy (National Security)   Print This Post   No Comments

Showcasing Faculty Scholarship

posted by Miriam Cherry

So, I just received some more reprints in the mail, and a couple of weeks ago, received a request from the library of the school where I am visiting to remember to turn in the reprints so that they can be nicely arranged into the faculty scholarship display case. My guess is that these display cabinets are pretty standard at law schools all over the country. Inside the cabinet there’s a little name tag, or perhaps even a nice picture, and then a nice little pile or stack of articles or books are placed next to your name.

Now, sometimes it looks like someone’s “padding” because they’ve written the introduction to the book but the whole book goes into the case (busted!). Other times, it looks like faculty members will put in something only because it has a pretty cover. The current display for my work is thoughtfully arranged so that the cover of the front law review article will match with the jacket I’m wearing in the picture (red), even though the article is extremely short.  Still, it’s nice to match. And, perhaps most important, this type of display case is low maintenance.

However, aside from matching and maintenance, are these really the most important factors we should take into account? I guess my question is whether this kind of scholarship display case does a good job in communicating the research portion of our job to our students or to other visitors, alums, or community constituencies? The answer in my opinion is, no.

A display case is a passive method of knowledge acquisition.  What if, in addition to a display case, users could use a screen to call up copies of a faculty member’s scholarship on SSRN? Or see a video in which a faculty member presents a summary of their recent article or debates their scholarship? This type of interactivity might also be useful for school websites, to give prospective students a sense of a school and the research projects that the faculty are engaged in. Since active learning leads to positive results in the classroom, i.e. more engaged students, better learning outcomes, etc., maybe we need more of an active and engaged sense in describing our scholarly work as well.  Of course, as we ease into the weekend perhaps passivity isn’t always a bad thing…

  October 29, 2010 at 2:03 pm   Posted in: Articles and Books   Print This Post   2 Comments

Baron on Leiter on Empirical Legal Studies

posted by Dave Hoffman

A few weeks ago I was on the train home, reading an old piece of scholarship from one of my favorite colleagues at Temple, Jane Baron.  Jane is well-known for her work on law and literature, the rhetoric of property/T&E, and interdisciplinary studies more generally.  The particular piece that I read on the train was “Interdisciplinary Scholarship as Guilty Pleasure: The Case of Law and Literature” (Law & Literature, 1999).   Jane’s observations about law and literature were strikingly relevant to the blog debate this summer which Brian Leiter instigated in his post “So-Called ‘Empirical Legal Studies.”  That debate was fierce, but no one made the precise point that Jane appears to have anticipated over a decade ago.  So I asked her to comment for us on Leiter & ELS. Here’s what she had to say.

“I arrived late to the debate Brian Leiter stirred up in his summer post on “So-Called ‘Empirical Legal Studies,’” whose incendiary title alone probably irritated self-identified ELS scholars. Of course, I’m not an ELS scholar, and frankly I have my own share of axes to grind about ELS. All those annoying numbers, data points, p’s and n’s—no one writes prose well enough to make those methods sections interesting to read. And I have already had my fill of faculty candidates with inchoate and incoherent ideas for adding an unspecified “empirical” component to their research—meaning they would count something if they could think of something to count.

But even given my own frustrations with ELS, two things particularly struck me about Leiter’s post. One was his assertion that the skill level of ELS scholars was “low, or at least lower than the typical . . . law & philosophy interdisciplinary scholar of yesteryear.” Considering Leiter’s 1992 characterization of then-extant law and philosophy scholarship as “intellectual voyeurism,” the insult to contemporary ELS is perhaps even stronger than many current ELS scholars might have realized.

The second thing that struck me was Leiter’s assertion that the ELS “mutual-admiration society” might be “disconnected from the central normative and conceptual questions of legal scholarship and legal education.” I think the challenge here was intended to provoke ELS scholars to show that their work does connect to those questions. Josh Wright has written thoughtfully on this question and probably lots of other folks have as well.

But I think it’s worth asking some different questions: why are we to assume that there are “central normative and conceptual questions of legal scholarship and legal education”? And should we be sure, as Leiter seems to be, that “smarts on your feet, the ability to draw conceptual distinctions, [and] construct and deconstruct arguments . . . are the . . . intellectual skills . . . needed in law”?

As I explored in earlier work, the compare-and-contrast analysis of interdisciplinary work constructs the very fields being dissected. In the realm of law and literature, for example, the tendency is to contrast the (allegedly) rich, textured, emotional realm of the literary with the (allegedly) dry, abstract, logical realm of the legal. This formulation effectively defines law as a pure domain of rules—a domain in which Langdell himself would have been happy to dwell.

But of course not all literature is morally rich (pick your favorite noire novel). And not all law is dry or abstract (pick your favorite opinion). We can depict literature as a form of plenitude and law as a form emptiness, but do we really want to?

In his ELS post, Leiter employs the inside/outside trope, to similar effect. He puts the ability to react fast, analyze arguments, and address ‘normative and conceptual questions’ inside law, and the ability to crunch numbers and analyze data outside law. But we can all think of some number crunching that is clearly inside law (B=P x L anybody?) and surely someone as intellectually accomplished as Leiter can’t mean to assert that there are no normative or conceptual questions outside law.

I am not just quibbling over words here. The question whether (all or some of) ELS work is good legal scholarship implicates the important question of what counts as “legal.” We can define law as a realm composed entirely (or centrally) of conceptual and normative questions. But we don’t have to. Indeed, at least some ELS work is designed to demonstrate that the normative questions that are ostensibly central in legal analysis are not in practice determinative, so that the “law” we thought we knew is not the “law” with which judges and practitioners work. Maybe that work is persuasive, and maybe it’s not. But at least that work is sensitive to the problem of defining law’s realm, a problem Leiter’s post assumes away.”

Thanks, Jane!

  October 20, 2010 at 3:35 pm   Posted in: Articles and Books, Bright Ideas, Economic Analysis of Law, Empirical Analysis of Law, Law School, Law School (Scholarship), Sociology of Law   Print This Post   4 Comments

Emory Law Journal, Vol. 60, Issue 1 (October 2010)

posted by Emory Law Journal

  October 19, 2010 at 10:25 am   Posted in: Administrative Law, Articles and Books, Constitutional Law, Current Events, Law Rev (Emory)   Print This Post   No Comments

Defragmenting the Fragmentation Critique

posted by Ani Satz

I am grateful to Frank Pasquale and Glenn Cohen for the opportunity to comment on The Fragmentation of U.S. Health Care(Einer Elhauge ed., 2010). This book is the first of its kind, and I believe it will influence scholarly debate about the best way to organize, regulate, and fund health care for the next decade.

In Chapter One, Einer Elhauge provides the frame through which readers are to understand fragmentation. Fragmentation occurs as “multiple decision makers make a set of health care decisions that would be made better though unified decision making” (p. 1). The tension, as he views it, is between forms of desirable integration and undesirable disintegration (p. 2). He discusses a spectrum of fragmentation, moving from the narrowest conception—treating a patient for a particular illness (lack of coordinated care)—to treating a patient over time (breaks in access to health care at various life stages) (p. 1). He also considers patients in groups, from small patient groupings (also breaks in access to care), to patients within a broader population, such as the state or nation (p. 1). Elhauge acknowledges that the book focuses on fragmentation at the individual patient level because “probably it is less controversial that the care received by an individual patient should reflect some sort of coherent common plan” (p. 2). Elhauge argues that in order to best reform health care, policy– and law–makers will require first either “a theory about optimal integration of decision making . . . or evidence of the sort of bad results that must reflect excessive disintegration” (p. 3). The book focuses on identifying, and responding to, the latter, and it does so admirably.

My critique pertains to the narrow view of fragmentation. By framing the fragmentation discussion as a desirable integration–undesirable disintegration dichotomy, the problems of fragmentation cannot be seen to their fullest extent. The integration–disintegration dichotomy assumes that existing legal structures are appropriate and seeks to work within them. As a result, assumptions and beliefs upon which these structures are built are taken as sound. The most troubling assumption is that illness is viewed as exceptional, rather than as part of the human condition. We are all universally vulnerable to illness and the subsequent disadvantage it creates. Further, few people fall into a concrete “sick” or “well” category—most of us fall somewhere along a continuum of wellness.

Framing the fragmentation debate in terms of existing legal structures has two significant consequences. First, it deeply entrenches a fallacy within current laws (and many of the reforms addressed in the book) that individuals are fully-functioning over a life-time, capable of laboring for wages (which may provide health care), and able to form and order certain preferences that allow them to participate actively and efficiently in the market. Dominant legal, political, and economic theories embrace a concept of the “liberal subject” that assumes that individuals are able to enter society and participate on equal ground. This view does not appreciate and respond to our universal vulnerability to illness, particularly to catastrophic illness.

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  October 13, 2010 at 4:11 pm   Posted in: Articles and Books, Book Reviews, Health Law, Legal Theory, Symposium (Health Care Fragmentation), Uncategorized   Print This Post   One Comment

Thumbs Up for Perino’s “Hellhound of Wall Street”

posted by Lawrence Cunningham

The country continues to suffer from bank excesses like high-risk compensation, shoddy customer treatment, and falsely-secured loans.  Those excesses occurred amid a giddy market plagued by inept regulation organized by leaders walking through the revolving doors linking high finance and government.  Damage includes bank failures, lost savings, and an ongoing, severe economic recession.  Fallout has included controversial government bailouts; finger-pointing running back in time to the previous laissez-faire President and forward to his progressive successor; and official hearings to get to the bottom of the abject mess. 

I’m writing, of course, about the period from late 1929 to 1933, retold with spellbinding elegance by Michael Perino in his gripping account of the events that culminated in the stunning hearings about the causes of the 1929 stock market crash and the financial failures of that period.  Perino’s engaging account focuses on the piotval hearings spearheaded by the unlikely hero, Ferdinand Pecora, lawyer of humble roots and modest standing, whose questioning of legendary Wall Street titans of the day uncovered dirty secrets of the devious financiers whose deception, duplicity and greed stoked the devastation. 

The book, The Hellhound of Wall Street: How Ferdinand Pecora’s Investigation of the Great Crash Forever Changed American Finance, is an impressive substantive and literary achievement.  In its first half (127 pages) Perino narrates a riveting tale, providing a stimulating back-story, rich characterization, and delicious plot-building; in its second half (150 pages), Perino weaves an amazingly suspenseful account of the ten days of hearings that Pecora conducted probing the exploits of the country’s most powerful bank of the period.

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  October 10, 2010 at 3:25 pm   Posted in: Articles and Books, Book Reviews   Print This Post   4 Comments

Rakesh Khurana’s “From Higher Aims to Hired Hands”

posted by Frank Pasquale

Rakesh Khurana’s book From Higher Aims to Hired Hands: The Social Transformation of American Business Schools and the Unfulfilled Promise of Management as a Profession is a profound contribution to sociology and institutional analysis. It is also a persuasive critique of some of the most disturbing trends in the American economy. While B-schools may seem of marginal relevance to the actual conduct of CEOs, Khurana observes in the book that they “occupy the commanding heights of higher education . . . and the kinds of knowledge and skill they purvey [are] now seemingly more essential to the tasks of university—and indeed societal—leadership than anything taught elsewhere on campus” (367). Khurana describes how leading B-Schools gained a world of power, prestige, and influence in the 20th Century, but lost their soul along the way.

The Biblical echo here is intentional: like Weber, Khurana traces the religious origins of the concepts of vocation and higher education. His focus on values—as well as his harsh indictments of business education past and present—could easily lead Khurana to jeremiads or charismatic prophecy, but he skillfully resists both of these temptations. He offers a sober vision for hope in the future of business education. Khurana’s work should inspire legal academics as well as business school professors (as it already has in a conference at the University of St. Thomas Law School (pdf) last year).

Khurana’s book has several points of interest for legal scholars. He focuses on the role of community and norms as sources of values distinct from markets and governmental hierarchies. As post-crisis interventions in the health care, finance, energy, and transport have demonstrated, the old debates over “market vs. government” solutions, or “private vs. public” spending, are of fading relevance for serious social theory in the US (however potent they may be on the campaign trail). Flaws in the “government” are all too often rooted in flaws in the “market,” which are in turn rooted in past flaws in policy, ad infinitum. Recent liberalization of campaign finance rules will only accelerate that dynamic of capture. Institutions that generate values are some of the few entities capable of short-circuiting this pernicious circularity.
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  October 5, 2010 at 5:07 pm   Posted in: Articles and Books, Corporate Law, Corruption, Economic Analysis of Law, Philosophy of Social Science, Sociology of Law, Uncategorized   Print This Post   2 Comments

Future of the Internet Symposium: Do we need a new generativity principle?

posted by Barbara van Schewick

[This is the second of two posts on Jonathan Zittrain’s book The Future of the Internet and how to stop it. The first post (on the relative importance of generative end hosts and generative network infrastructure for the Internet's overall ability to foster innovation) is here.]

In the book’s section on “The Generativity Principle and the Limits of End-to-End Neutrality,” Zittrain calls for a new “generativity principle” to address the Internet’s security problem and prevent the widespread lockdown of PCs in the aftermath of a catastrophic security attack: “Strict loyalty to end-to-end neutrality should give way to a new generativity principle, a rule that asks that any modifications to the Internet’s design or to the behavior of ISPs be made where they will do the least harm to generative possibilities.” (p. 165)

Zittrain argues that by assigning responsibility for security to the end hosts, “end-to-end theory” creates challenges for users who have little knowledge of how to best secure their computers. The existence of a large number of unsecured end hosts, in turn, may facilitate a catastrophic security attack that will have widespread and severe consequences for affected individual end users and businesses. In the aftermath of such an attack, Zittrain predicts, users may be willing to completely lock down their computers so that they can run only applications approved by a trusted third party.[1]

Given that general-purpose end hosts controlled by users rather than by third-party gatekeepers are an important component of the mechanism that fosters application innovation in the Internet, Zittrain argues, a strict application of “end-to-end theory” may threaten the Internet’s ability to support new applications more than implementing some security functions in the network – hence the new principle.

This argument relies heavily on the assumption that “end-to-end theory” categorically prohibits the implementation of security-related functions in the core of the network. It is not entirely clear to me what Zittrain means by “end-to-end theory.” As I explain in chapter 9 of my book, Internet Architecture and Innovation (pp. 366-368), the broad version of the end-to-end arguments [2] (i.e., the design principle that was used to create the Internet’s original architecture) does not establish such a rule. The broad version of the end-to-end arguments provides guidelines for the allocation of individual functions between the lower layers (the core of the network) and the higher layers at the end hosts, not for security-related functions as a group.

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  September 8, 2010 at 4:57 pm   Posted in: Architecture, Articles and Books, Cyberlaw, Symposium (Future of Internet), Technology, Uncategorized   Print This Post   One Comment

Future of the Internet Symposium: Will Robotics Be Generative?

posted by Ryan Calo

I don’t know that generativity is a theory, strictly speaking. It’s more of a quality. (Specifically, five qualities.) The attendant theory, as I read it, is that technology exhibits these particular, highly desirable qualities as a function of specific incentives. These incentives are themselves susceptible to various forces—including, it turns out, consumer demand and citizen fear.

The law is in a position to influence this dynamic. Thus, for instance, Comcast might have a business incentive to slow down peer-to-peer traffic and only refrain due to FCC policy. Or, as Barbara van Schewick demonstrates inter alia in Internet Architecture and Innovation, a potential investor may lack the incentive to fund a start up if there is a risk that the product will be blocked.

Similarly, online platforms like Facebook or Yahoo! might not facilitate communication to the same degree in the absence of Section 230 immunity for fear that they will be held responsible for the thousand flowers they let bloom. I agree with Eric Goldman’s recent essay in this regard: it is no coincidence that the big Internet players generally hail from these United States.

As van Schewick notes in her post, Zittrain is concerned primarily with yet another incentive, one perhaps less amenable to legal intervention. After all, the incentive to tether and lock down is shaped by a set of activities that are already illegal.

One issue that does not come up in The Future of the Internet (correct me if I’m wrong, Professor Zittrain) or in Internet Architecture and Innovation (correct me if I’m wrong, Professor van Schewick) is that of legal liability for that volatile thing you actually run on these generative platforms: software. That’s likely because this problem looks like it’s “solved.” A number of legal trends—aggressive interpretation of warranties, steady invocation of the economic loss doctrine, treatment of data loss as “intangible”—mean you cannot recover from Microsoft (or Dell or Intel) because Word ate your term paper. Talk about a blow to generativity if you could.

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  September 8, 2010 at 2:57 pm   Posted in: Architecture, Articles and Books, Consumer Protection Law, Cyberlaw, Symposium (Future of Internet), Technology, Tort Law   Print This Post   No Comments

Future of the Internet Symposium: Generative End Hosts vs. Generative Networks?

posted by Barbara van Schewick

Which factors have allowed the Internet to foster application innovation in the past, and how can we maintain the Internet’s ability to serve as an engine of innovation in the future? These questions are central to current engineering and policy debates over the future of the Internet. They are the subject of Jonathan Zittrain’s The Future of the Internet and how to stop it and of my book Internet Architecture and Innovation which was published by MIT Press last month.

As I show in Internet Architecture and Innovation, the Internet’s original architecture had two components that jointly created an economic environment that fostered application innovation:

1. A network that was able to support a wide variety of current and future applications (in particular, a network that did not need to be changed to allow a new application to run) and that did not allow network providers to discriminate among applications or classes of applications. As I show in the book, using the broad version of the end-to-end arguments (i.e., the design principle that was used to create the Internet’s original architecture) [1] to design the architecture of a network creates a network with these characteristics.

2. A sufficient number of general-purpose end hosts [2] that allowed their users to install and run any application they like.

Both are essential components of the architecture that has allowed the Internet to be what Zittrain calls “generative” – “to produce unanticipated change through unfiltered contributions from broad and varied audiences.”

In The Future of the Internet and how to stop it, Zittrain puts the spotlight on the second component: general-purpose end hosts that allow users to install and run any application they like and their importance for the generativity of the overall system.

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  September 8, 2010 at 1:18 pm   Posted in: Architecture, Articles and Books, Cyberlaw, Symposium (Future of Internet), Technology, Uncategorized   Print This Post   No Comments

Future of the Internet Symposium: (Im)Perfect Enforcement

posted by Ryan Calo

Prohibition wasn’t working. President Hoover assembled the Wickersham Commission to investigate why. The Commission concluded that despite an historic enforcement effort—including the police abuses that made the Wickersham Commission famous—the government could not stop everyone from drinking. Many people, especially in certain city neighborhoods, simply would not comply. The Commission did not recommend repeal at this time, but by 1931 it was just around the corner.

Five years later an American doctor working in a chemical plant made a startling discovery. Several workers began complaining that alcohol was making them sick, causing most to stop drinking it entirely—“involuntary abstainers,” as the doctor, E.E. Williams, later put it. It turns out they were in contact with a chemical called disulfiram used in the production of rubber. Disulfiram is well-tolerated and water-soluble. Today, it is marketed as the popular anti-alcoholism drug Antabuse.

Were disulfiram discovered just a few years earlier, would federal law enforcement have dumped it into key parts of the Chicago or Los Angeles water supply to stamp out drinking for good? Probably not. It simply would not have occurred to them. No one was regulating by architecture then. To dramatize this point: when New York City decided twenty years later to end a string of garbage can thefts by bolting the cans to the sidewalk, the decision made the front page of the New York Times. The headline read: “City Bolts Trash Baskets To Walks To End Long Wave Of Thefts.”

In an important but less discussed chapter in The Future of the Internet, Jonathan Zittrain explores our growing taste and capacity for “perfect enforcement.” Read the rest of this post »

  September 7, 2010 at 2:58 pm   Posted in: Architecture, Articles and Books, Book Reviews, Cyber Civil Rights, Cyberlaw, DRM, Jurisprudence, Legal Theory, Symposium (Future of Internet), Technology   Print This Post   5 Comments

The Un-Ouch: Enthusiastic Review of Alexander Tsesis’s We Shall Overcome: A History of Civil Rights and the Law

posted by Danielle Citron

Today, my co-blogger Gerard flagged an “Ouch” review of Laura Kalman’s new book.  This brought to mind a deservedly glowing review of Alexander Tsesis’s We Shall Overcome: A History of Civil Rights and the Law.  Tsesis’s book traces the history of legal efforts to achieve civil rights for all Americans, beginning with the years leading up to the Revolution to our own times.  In the Law and History Review (August 2010), George Rutherglen writes:

Alexander Tsesis surveys the entire history of civil rights, from its origins in the reaction to slavery to its latest manifestations in federal legislation and constitutional decisions.  All of this is covered in considerable detail, with many references to original sources, and  a wealth of quotations from the participants themselves. No less because of its clear-eyed view of the pervasiveness of discrimination in American life, We Shall Overcome is all the more remarkable for the resolute optimism that it brings to the prospect of achieving equality through law.  It is a rich and valuable introduction to the history of civil rights, one which expresses a welcome enthusiasm for its subject and a wholehearted endorsement of the aims and vision of the civil rights movement.

  September 5, 2010 at 8:34 pm   Posted in: Articles and Books, Civil Rights, Constitutional Law   Print This Post   No Comments

What Will Be the Defining Idea of the Coming Decade?

posted by Daniel Solove

For the 10th-anniversary issue of The Chronicle of Higher Education‘s The Chronicle Review, the editors asked several scholars for answers to the question: “What will be the defining idea of the coming decade, and why?”

Here’s the list of the people they asked: Jaron Lanier, Daniel J. Solove, Peter Singer, Elaine Howard Ecklund, Gwenda Kaczor, Jonathan Haidt, Parker J. Palmer, Camille Paglia, Yi-Fu Tuan, Michael Glenwood Gibbs, Daniel J. Cohen, James Elkins, Mary Beard, Linda K. Kerber, Geoffrey Moss, Henry Petroski, Alondra Nelson, Brian Knutson, Saleem H. Ali, Steve Brodner, Stephon H.S. Alexander, Steven Landsburg, and Pat Shipman.

You can find all the answers here.

My answer is a short essay called Dizzied by Data. It begins:

In his short story “The Library of Babel,” Jorge Luis Borges imagined an infinitely large library containing all books. Although the library was wondrous, people had no way of finding the right book. Much like Borges’s library, the information age has presented us with a dizzying amount of data. The past decade witnessed the rise of the interactive Internet—Web 2.0—where people not only consume information but also add to it. Millions of people started blogging; social-networking sites like Facebook amassed half a billion users; and sites like Wikipedia enticed people to collaborate and share their expertise.

To cope with all this data, we created new ways to find it and analyze it. Search engines like Google revolutionized our ability to locate information, and data-mining technologies were developed to detect patterns and make judgments about people’s interests and behavior.

Over the next decade, the ability to search for information and to analyze it will mature dramatically. . . .

For the rest, click here.

  August 31, 2010 at 12:59 pm   Posted in: Articles and Books, Privacy, Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Privacy (Law Enforcement), Social Network Websites   Print This Post   3 Comments

Nine Amazing Bookstores

posted by Daniel Solove

Nine amazing bookstores (DJS)

  August 10, 2010 at 12:39 am   Posted in: Articles and Books, Asides   Print This Post   No Comments

The First Sentence of Your Book

posted by Dave Hoffman

Many academics write books.  A slightly greater number talk about writing books.  I’m in the latter category.  The idea of sitting down and developing an idea over 300 pages is daunting.  But it’s the first sentence that really terrifies me.  In an article, the first sentence carries some weight: it has to pull a reader along for the next 25,000 words.  But that’s a minor commitment compared to the work that same sentence does in a scholarly book.  Think of it: you are about to sit down to read several hundred thousand words about law.  The first few better be damn good.

Or not.  To get over my book-block, I’m mulling over the idea of writing a first sentence that is so dreadful that readers will have no choice but to continue reading, if only to dull the immediate pain.  Inspired by the Bulwer-Lytton Awards, I’ve come up with a few ideas.  For a book about dockets:

To write about law empirically is to venture forth into a dark and murky sea, filled with tossing icebergs above – opinions – and terribly misled krakens below – deterministic political scientists – and the only light to see by is shed by the streetlamp at the prow of your boat, imperfectly illuminating the gold key of data, and echolocation produced by the sounds of students misled by socratic education and Arthur Miller’s high pitched “hmm??!”: that’s why you should study dockets, law’s last and best hope for direction and order.

And for a book about cultural cognition?

It was said first about Marxism that a theory that proves everything proves too much, and led to three generations of suffering and misguided economic policies enforced by two dictators and a succession of forgotten mediocrities, but that problem is not cultural cognition’s, notwithstanding the project’s ability to swallow up whole legal fields like a gaping anglerfish and then spit them back unrecognized (unless you are related to Yochai Benkler): the mere fact that cultural cognition is soon to be a first-year subject of its very own should comfort those that seek complicated answers to complicated problems, and you must read this book if you wish to learn how win over the hierarchs in your life with sweet whispered nothings disguised as scientific vouching.

You get the picture.  Let this be an open thread for those who haven’t written that book yet to contribute their first sentence.  The worst gets the prize.

  July 21, 2010 at 9:48 am   Posted in: Articles and Books   Print This Post   15 Comments

UCLA Law Review Vol. 57, Issue 5 (June 2010)

posted by UCLA Law Review

Volume 57, Issue 5 (June 2010)

Articles

  July 5, 2010 at 7:12 pm   Posted in: Articles and Books, Constitutional Law, Current Events, Feminism and Gender, History of Law, Immigration, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Law School, Legal Theory, Politics, Psychology and Behavior, Supreme Court   Print This Post   No Comments

GW’s Junior Scholar Workshop and Prizes

posted by Lawrence Cunningham

As anticipated, the Center for Law, Economics and Finance at George Washington University Law School (C-LEAF)  has formally announced its first annual Junior Faculty Business and Financial Law Workshop and Junior Faculty Scholarship Prizes.    The Inaugural Workshop will be held and Prizes awarded on April 1-2, 2011, at GW Law School in Washington, DC.

Up to ten papers will be chosen from those submitted for presentation at the Workshop. At the Workshop, one or more senior scholars will comment on each paper, followed by general discussion of each paper among all participants. The Workshop audience will include invited junior scholars, faculty from GW’s Law School and Business School, faculty from other institutions, and invited guests.

At the conclusion of the Workshop, up to three papers will be awarded Junior Faculty Scholarship Prizes, of $3,000, $2,000, and $1,000, respectively. Chosen papers will be featured on C-LEAF’s website as part of its Working Paper Series. In addition to participating in the Workshop, all scholars selected to present at the  Workshop will be invited to become Fellows of C-LEAF. Read the rest of this post »

  June 8, 2010 at 1:00 pm   Posted in: Administrative Announcements, Articles and Books, Conferences, Corporate Finance, Corporate Law, Law School, Law School (Scholarship), Securities, Securities Regulation, Tax   Print This Post   One Comment

VICTIMS’ UNDERSTANDINGS AND MOTIVATIONS IN PROCESSING HUMAN RIGHTS VIOLATIONS CASES IN THE GLOBAL SOUTH

posted by Tamara Relis

The proliferation of international human rights treaties, committees and courts over the last sixty years represents enormous achievement. International human rights laws are now asserted throughout the world by individuals of many cultures and traditions. Yet, at the same time human rights ideas and principles continue to have difficulty in establishing their relevance in the daily lives of those who are geographically and culturally distant from international institutions (Stacy, 2009). In my forthcoming piece in Human Rights Quarterly, I argue that notwithstanding the fact that giving voice to those oppressed is a main function of the international human rights movement (Baxi, 2009), and that the meaning of human rights must be grounded in local culture at grassroots levels, relatively little scholarship bases its analyses on the discourse of those actually involved in human rights violations cases in the Global South. What are victims’ conceptions and expectations of human rights and their agendas and experiences in formal and informal justice systems processing their cases? This knowledge is critical to enable greater understanding of victims’ needs, epistemologies and micro-realities in order to innovatively engage the controversies in international human rights theory and practice and to effect realizable change for the subjects of human rights in the Global South.

I provide some such data in my forthcoming book based on my empirical research in India, detailed in my earlier post. This includes voices of female victims of violence discussing their comprehensions, objectives, and practices in processing their cases (74 interviews with victims, and 24 with their family members). I link victims’ discourse to norm diffusion theory in international relations (Risse et al. 1999) and to vernacularization theory in law and anthropology (Merry, 2006), which engage the issue of permeation of human rights standards to grassroots levels.

In terms of female victims of violence in India where CEDAW was ratified in 1993, I show that notwithstanding State enactments of laws in line with international human rights obligations, and the dissemination of human rights concepts by transnational activists and domestic NGOs who work to make them meaningful within particular societies, the subjectivities of victims of violence in two major cities (Delhi, Bangalore) as illustrated in their discourse on their motivations and aims in approaching formal courts and informal justice mechanisms suggest little if any human rights emancipation. Those with little education had either never heard of human rights or lacked an understanding of their meaning. More educated victims who had a general sense of human rights concepts knew little of specifics. Moreover, both groups generally felt that fundamental human rights ideas, though something positive, were primarily of use on an inspirational level.

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  June 1, 2010 at 11:27 pm   Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Sociology of Law   Print This Post   No Comments

BRIGHT IDEAS: Andrew Sparks on Charter School Boards & Non-Profit Governance

posted by Dave Hoffman

Andrew Sparks is a recently minted PhD in education whose dissertation on the governance of Philadelphia Charter School boards I happened to come across.  He’s developed a precis of that thesis, Finding Their Own Way: The Work of Philadelphia Charter School Boards in a Complex Accountability Environment.   The short report (which you should read) is a particularly nice example of qualitative research into non-profit board behavior – a subject lamentably understudied by legal academics.   In part spurred by the NYT’s recent articles on Charter performance and governance,  I asked Andrew whether he’d be willing to talk with us about what he found.

1.  Why did you write about charter school governance?

When I decided to study charter school governance about 5 years ago my advisors at Penn were not thrilled.  It wasn’t, and still isn’t, the “sexiest” topic to research and isn’t where the research money has been headed.  Within the charter school research arena, the vast majority of time and energy has been devoted to trying to figure out whether charter schools “work” – whether they are better than their non-charter competitors.  For me, showing that school A scored a 745 (on a given test) and school B scored a 731 isn’t usually very interesting, especially when it’s only measuring math and/or reading.   Even if we could say school A is better than school B, do we know exactly makes school A so good and do we know how to replicate that with what will likely be a different group of students, teachers, administrators and parents?

At about this time I also had a few friends who were asked to join charter school boards.  While these friends were talented people, they had no education background, so I began to wonder, more broadly, “who’s on these boards and what are they doing?”  Having worked in the non-profit field, I was aware of the impact that a board can have on an organization – for better or worse.  Having worked with and researched charter schools enough to understand their general governance framework, it seemed that governance might be a critical piece in their potential success and expansion.

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  May 21, 2010 at 11:32 am   Posted in: Articles and Books, Bright Ideas, Education   Print This Post   2 Comments

INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS – Some highlights from a forthcoming book

posted by Tamara Relis

My second book is entitled INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS (forthcoming). It is based on data I collected over three years in eight states of India and in seven languages while I was a postdoctoral research fellow at Columbia Law School and the LSE (London School of Economics, Dept. of Law, where I continue to be a research fellow). This data was collected with the help of eight teams of about 200 research assistants throughout India. The United Nations Development Program (Delhi), 11 law school Deans, domestic judges, state legal services authorities, local district and high courts, NGO’s and human rights/public interest lawyers throughout India were also involved in the project. The dataset comprises 400 semi-structured depth interviews and questionnaires from victims, accused, lawyers, judges, arbitrators and mediators in 193 cases involving human rights violations of serious violence against women. It also includes case hearing observations in lower formal courts, court-linked mediations known as “lok adalats” and non-state, quasi-legal women’s arbitrations known as “mahila panchayats” and “nari adalats” (British Academy Award PDF/2006-09/64).

Similar to my first book, the South Asian research analyzes legal and lay actors’ understandings, objectives and experiences during case processing. However, the South Asian research builds on and takes in new directions the theories and conceptual arguments I developed in PERCEPTIONS IN LITIGATION AND MEDIATION . In particular, it focuses on local, Southern actors’ perspectives (i.e. individuals from the Global South) on the permeation and perceived relevance of international human rights laws and norms in formal courts and non-state informal justice mechanisms.

Drawing on interdisciplinary scholarship (international relations, law & anthropology, law & development, and victimology literatures), the book questions how the current proliferation of international human rights has shaped case processing systems at grassroots levels. Expanding on my North American findings, Southern legal and lay actors provide local perspectives on non-western models of formal courts and informal justice processes as forms of legal pluralism. I examine how, if at all, international human rights laws and norms (e.g. CEDAW 1979, ICCPR 1976, UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power 1985) have permeated the processing of these cases, comparing how receptive the different spaces of lower courts versus quasi-legal regimes are to claims made from the international sphere. I further examine the theoretical ideas informing these processes (including norm diffusion theory, universalism versus cultural relativism, restorative justice, and feminist critiques of mainstream human rights paradigms) and how these ideas are understood by those on the ground. The research also highlights the interdependence of all human rights and the link between human rights, women’s rights and development, which has been the subject of much debate. Finally, the findings provide a critique on the boundaries created both between formal and informal justice, as well as between ratified international law and the permeation of international human rights norms in case processing at grass roots levels.

Interestingly, depending on arbitrary factors including parties’ geographic and/or socioeconomic positions within India, the same type cases might be heard in either criminal or civil lower courts (magistrates/sessions/district) or in the above-mentioned court-linked or non-state quasi-legal mediations or arbitrations. The dataset additionally comprises “in-chambers mediations”, which are newly exported forms of American justice to India. These are case management tools that include ADR and plea bargaining methods, which have been and are being taught to Indian judges and advocates by a number of Californian judges and US Department of Justice representatives with the aim of deflecting cases from the overburdened Indian courts where trial waits of 10 years or more are not uncommon. This is being done predominantly for US commercial interests. However, these case management tools also affect the processing of violence against women cases.

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  May 17, 2010 at 8:54 pm   Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law   Print This Post   One Comment

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