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Category: Bright Ideas

All fiction to some degree takes place in an invented world, with invented people doing unreal things. In a way the upside down definition may be the most useful - fantasy is books published by fantasy imprints and shelved in the fantasy sections. As far as what content makes a book a fantasy book rather than general fiction, it varies with the reader. I guess you know it when you see it. Although magic swords are often a giveaway.

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Law and Hard Fantasy Interview Series: Joe Abercrombie

joe_abercrombieThis post is a part of our ongoing interview series with fantasy authors who generally write in the burgeoning genre of gritty / hard / dark epic fantasy.   The series began with this book review post, and continued with interviews of George R. R. Martin and Patrick Rothfuss, and Mark Lawrence.

Today, I’m interviewing Joe Abercrombie.  Joe is the author, most famously, of the “First Law” trilogy, and some more recent spin-offs set in that world.  Joe’s writing is characterized by dark (very, very dark) humor, grit (as in dirt), and an unhealthy amount of revenge.  He’s on twitter, he has a blog, and he was nice enough to agree to answer some questions from me about his writing and its relationship to law.

DH: There’s been a lot of talk in recent years about the collapse of the “fantasy” and “fiction” categories. Is there anything useful about the distinction? If so, what are the minimal characteristics of books that would stay on your fantasy shelf?

JA: Any question about definitions and categorisations is always a complicated one, with lots of confusions and blurry areas. All fiction to some degree takes place in an invented world, with invented people doing unreal things. In a way the upside down definition may be the most useful – fantasy is books published by fantasy imprints and shelved in the fantasy sections. As far as what content makes a book a fantasy book rather than general fiction, it varies with the reader. I guess you know it when you see it. Although magic swords are often a giveaway.

DH: One marker of the trend toward harder / darker fantasy is more fulsome world-building and world-planning. But you are well-known as a guy who hates maps (recent books excepted!) Here’s a practical question: do you sit down and think about the rules of the world before you start to write, or do you start writing and work them out as you go along?

JA: I don’t know that I’d necessarily agree with your first assertion, there. I think a marker of the trend towards harder/darker fantasy is a greater focus on character and internal life over setting and world building, certainly I see that as key in what I’m doing. But you want the backdrop to be consistent and coherent. So you have some ideas about the rules of the world. Certainly you have some strong ideas about the effect certain cultures will have on the way the characters think. That’s the kind of world building I’m most interested in, I suppose you could say, the kind that has a direct effect on the behaviour of the characters, rather than the kind that specifies exactly how many thousand years the tower of Zarb had guarded Dragonfire Pass.

DH: What do you have against maps anyway?

JA: I love maps. I have loads of them. But I don’t necessarily want to share them with the reader. I want the reader to see the action in close up, not wide shot. I want them to be with the characters, not thinking so much about the setting.

DH: Is there any civil law in your world? By that, I mean a system by which contractual breaches and torts are enforced outside of blood feuds, deeds are recorded, property disputes disposed of? What does that system look like?

JA: It depends a little on the culture. In the North there has been a relatively primitive tradition of ownership by clans, judgement by elders and chieftains, but it’s broken down during a period of sustained warfare and a new king has tried to impose a new and much more centralised system, with varying success. The Union, by contrast, has a well-established aristocracy and a complex and extensive centralising bureaucracy, although with a weak king on the throne and a lot of pressure from external threats it’s become rather a corrupt system, prone to being carved into personal fiefdoms by powerful and charismatic individuals in the government. Hardly surprising, in a way, since the whole thing has been explicitly designed to allow one man (Bayaz) to maintain control. The whole thing’s further distorted by the conflict between old power and new money, as the Union has spread to include more diverse cultures and the merchant class has gained in influence.

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The Dualities of Freedom and Innovation

What a rollercoaster week of incredibly thoughtful reviews of Talent Wants to Be Free! I am deeply grateful to all the participants of the symposium.  In The Age of Mass Mobility: Freedom and Insecurity, Anupam Chander, continuing Frank Pasquale’s and Matt Bodie’s questions about worker freedom and market power, asks whether Talent Wants to Be Free overly celebrates individualism, perhaps at the expense of a shared commitment to collective production, innovation, and equality. Deven Desai in What Sort of Innovation? asks about the kinds of investments and knowledge that are likely to be encouraged through private markets versus. And in Free Labor, Free Organizations,Competition and a Sports Analogy Shubha Ghosh reminds us that to create true freedom in markets we need to look closely at competition policy and antitrust law. These question about freedom/controls; individualism/collectivity; private/public are coming from left and right. And rightly so. These are fundamental tensions in the greater project of human progress and Talent Wants to Be Free strives to shows how certain dualities are pervasive and unresolvable. As Brett suggested, that’s where we need to be in the real world. From an innovation perspective, I describe in the book how “each of us holds competing ideas about the essence of innovation and conflicting views about the drive behind artistic and inventive work. The classic (no doubt romantic) image of invention is that of exogenous shocks, radical breakthroughs, and sweeping discoveries that revolutionize all that was before. The lone inventor is understood to be driven by a thirst for knowledge and a unique capacity to find what no one has seen before. But the solitude in the romantic image of the lone inventor or artist also leads to an image of the insignificance of place, environment, and ties…”.  Chapter 6 ends with the following visual:

 

Dualities of Innovation:

Individual / Collaborative

Radical/Incremental

Accidental /Deliberate

Global /Local

Passion / Profit

Art/Science

Exclusive/Shared

Inscribed/Tacit

 

And yet, the book takes on the contrarian title Talent Wants to Be Free! We are at a moment in history in which the pendulum has shifted too far. We have too much, not too little, controls over information, mobility and knowledge. We uncover this imbalance through the combination of a broad range of methodologies: historical, empirical, experimental, comparitive, theoretical, and normative. These are exciting times for innovation research and as I hope to convince the readers of Talent, insights from all disciplines are contributing to these debates.

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Individuals & Teams, Carrots & Sticks

I promised Victor Fleisher to return to his reflections on team production. Vic raised the issue of team production and the challenge of monitoring individual performance. In Talent Wants to Be Free I discuss some of these challenges in the connection to my argument that much of what firms try to achieve through restrictive covenants could be achieved through positive incentives:

“Stock options, bonuses, and profit-sharing programs induce loyalty and identification with the company without the negative effects of over-surveillance or over-restriction. Performance-based rewards increase employees’ stake in the company and increase their commitment to the success of the firm. These rewards (and the employee’s personal investment in the firm that is generated by them) can also motivate workers to monitor their co-workers. We now have evidence that companies that use such bonus structures and pay employees stock options outperform comparable companies .”

 But I also warn:

 “[W]hile stock options and bonuses reward hard work, these pay structures also present challenges. Measuring employee performance in innovative settings is a difficult task. One of the risks is that compensation schemes may inadvertently emphasize observable over unobservable outputs. Another risk is that when collaborative efforts are crucial, differential pay based on individual contribution will be counterproductive and impede teamwork, as workers will want to shine individually. Individual compensation incentives might lead employees to hoard information, divert their efforts from the team, and reduce team output. In other words, performance-based pay in some settings risks creating perverse incentives, driving individuals to spend too much time on solo inventions and not enough time collaborating. Even more worrisome is the fear that employees competing for bonus awards will have incentives to actively sabotage one another’s efforts.

A related potential pitfall of providing bonuses for performance and innovative activities is the creation of jealousy and a perception of unfairness among employees. Employees, as all of us do in most aspects of our lives, tend to overestimate their own abilities and efforts. When a select few employees are rewarded unevenly in a large workplace setting, employers risk demoralizing others. Such unintended consequences will vary in corporate and industry cultures across time and place, but they may explain why many companies decide to operate under wage compression structures with relatively narrow variance between their employees’ paychecks. For all of these concerns, the highly innovative software company Atlassian recently replaced individual performance bonuses with higher salaries, an organizational bonus, and stock options, believing that too much of a focus on immediate individual rewards depleted team effort.

Still, despite these risks, for many businesses the carrots of performance-based pay and profit sharing schemes have effectively replaced the sticks of controls. But there is a catch! Cleverly, sticks can be disguised as carrots. The infamous “golden handcuffs”- stock options and deferred compensation with punitive early exit trigger – can operate as de facto restrictive contracts….”

 All this is in line with what Vic is saying about the advantages of organizational forms that encourage longer term attachment. But the fundamental point is that stickiness (or what Vic refers to as soft control) is already quite strong through the firm form itself, along with status quo biases, risk aversion, and search lags. The stickiness has benefits but it also has heavy costs when it is compounded and infused with legal threats.

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The Hard Questions about Talent, Market Regulation, and the World of Work

Each in his own sharp and perceptive way, Brett Frischmann, Frank Pasquale and Matthew Bodie present what are probably the hardest questions that the field of human capital law must contemplate. Brett asks about a fuller alternative vision for line drawing between freedom and control. He further asks how we should strike the balance between regulatory responses and private efforts in encouraging more openness. Finally, he raises the inevitable question about the tradeoffs between nuanced, contextual standards (what, as Brett points out, I discuss as the Goldilocks problem) versus rigid absolute rules (a challenge that runs throughout IP debates and more broadly throughout law). Frank and Matt push me on the hardest problems for any politically charged debate: the distributive, including inadvertent and co-optive, effects of my vision. I am incredibly grateful to receive these hard questions even though I am sure I am yet to uncover fully satisfying responses. Brett writes that he wanted more when the book ended and yes, there will be more. For one, Brett wanted to hear more about the commons and talent pools. I have been invited to present a new paper, The New Cognitive Property in the Spring at a conference called Innovation Beyond IP at Yale and my plan is to write more about the many forms of knowledge that need to be nurtured, nourished, and set free in our markets.

Matt describes his forthcoming paper where he demonstrates that “employment” is reliant on our theory and idea of the firm: we have firms to facilitate joint production but we need to complicate our vision of what that joint production, including from a governance perspective, looks like. “Employers are people too” Matt reminds us, as he asks, “Do some of the restrictions we are talking about look less onerous if we think of employers as groups of people?” And my answer is yes, of course there is a lot of room for policy and contractual arrangements that prevent opportunism and protect investment: my arguments have never been of the anarchic flavor “let’s do away with all IP, duties of loyalty, and contractual restrictions”. Rather, as section 2 (chapters 3-8) of Talent Wants to Be Free is entitled we need to Choose Our Battles. The argument is nicely aligned with the way Peter Lee frames it: we have lots of forms of control, we have many tools, including positive tool, to create the right incentives, let us now understand how we’ve gotten out of balance, how we’ve developed an over-control mentality that uses legitimate concerns over initial investment and risks of opportunism and hold-up to allow almost any form of information and exchange to be restricted. So yes: we need certain forms of IP – we have patents, we have copyright, we have trademark. Each one of these bodies of law too needs to be examined in its scope and there is certainly some excess out there but in general: we know where we stand. But what about human capital beyond IP? And what about ownership over IP between employees and employers?

So yes, we need joint inventorship doctrines for sure when two inventors work together. But what about firm-employee doctrines? Do we need work-for-hire and hired-to-invent doctrines? Here we arrive to core questions about the differences between employment versus joint ventures or partnerships between people. And even here, the argument is that we continue to need during employment certain firm protections over ownership. But the reality is that so many highly inventive and developed countries, diverse as Finland, Sweden, Korea, Japan, Germany, and China, all have drawn more careful lines about what can fall under “service inventions” or inventions produced within a corporation. These countries have some requirement for fair compensation of the employee, some stake in inventions, rather than a carte blanche to everything produced within the contours of the firm. The key is a continuous notion of sharing, fairness and boundaries that we’ve lost sight of. Intense line-drawing as Brett would have it that is based on context and evidence, not on an outdated version of the meaning of free markets.

What about non-competes and trade secrets? Again, my argument is that these protections alternate, they should be discussed in relation to one another, and we need to understand their logic, goals, and the cost/benefit of each given that they exist in a spectrum. Non-competes is the harshest restriction: an absolute prohibition post-employment to continue in one’s professional path outside the corporation. This is unnecessary. The empirics are there to support their absolute ban rather than the fine dance that of balancing that is needed with some of the other protections. Sure it makes life momentarily easier for those who want to use non-competes, but over time, not only can we all live without that harsh tool, we will actually benefit from ceding that chemical weapon in the battle over brains and instead employ more conventional arms. And yet, even in California, this insight doesn’t and shouldn’t extend to partnerships. The California policy against non-competes is limited to the employment context. If two people, as in Matt’s hypo, are together forming a business, their joint property rights in that business suggest to us that allowing some form of a covenant not to compete will be justified. There will still be a cost to positive externalities but the difference between the two forms of relationships allow for absolute ban in one and a standard of reasonableness for the other. And yes, as Brett alludes to, the world is not black and white and we will have to tread carefully in our distinctions between employees and partners.

I completely agree with Matt and Frank that there are fundamental injustices created by our entire regime of work law. Talent Wants to Be Free takes those deep structures into account in developing the more immediate and positive vision for better innovation regimes and richer talent pools. Matt writes that a more radical alternative lies within Talent but “deserves more exegesis: namely, whether we should eliminate the concept of employment entirely.” What if people will always be independent contractors?, he asks. The reforms promoted in Talent Wants to Be Free, allowing more employees more control over their human capital, indeed bring these two categories – employees and independent contractors – closer together in some respects. But far more would be needed to shift our work relations to be more “democratic and egalitarian: a post-industrial Jeffersonian economy.” As both Frank and Matt show, in their own scholarship and in their provocative comments here, this will require us to rethink so much of the world we live in.

Frank Pasquale’s review is so rich that I hope he extends and publishes it as a full article. Frank says that “for every normative term that animates [Orly’s] analysis (labor mobility, freedom of contract, innovation, creative or constructive destruction) there is a shadow term (precarity, exploitation, disruption, waste) that goes unexplored.” I would agree that the background rules that define our labor market, at will employment, inequality, class and power relations, are not themselves the target of the book. They do however deeply inform my analysis. To me, the symmetry I draw between job insecurity and the need for job opportunity is not what Frank describes as a “comforting symmetry”. It is a call for the partial correction of an outrageous asymmetry. And yes, as I mentioned at the very beginning of the symposium, I hoped in writing the book to shift some of the debates about human capital from the stagnating repetition of arguments framed as business-labor which I view not only as paralyzing and strategically unwise but also as simply incorrect and distorting. There is so much more room for win-win than both businesses and labor seem to believe. On that level, I think Frank and I actually disagree about what we would define as abuse. I do in fact believe that many of us can passionately decide to give monetary gains in return for a job that provides intangible benefits of doing something we love to do. Is that always buying into the corporate fantasy? Is that always exploitation? Don’t all of us do that when we become scholars? Still, of course I agree with many of the concrete examples that Frank raises as exploitation and precarious work – he points to domestic workers, which is a subject I have written about in a few articles (which I just realized I should probably put on ssrn - Family Geographies: Global Care Chains, Transnational Parenthood, and New Legal Challenges in an Era of Labor Globalization, 5 CURRENT LEGAL ISSUES 383 (2002) and  Class and Care, 24 HARVARD WOMENS LAW JOURNAL 89 (2001)]. Frank describes a range of discontent in such celebrated workplaces as Silicon Valley giants, which I too am concerned with and have thought about how new hyped up forms of employment can become highly coercive. Freeing up more of our human capital is huge, but yes, I agree, it doesn’t solve all the problems of our world and by no means should my arguments about the California advantage in the region’s approach to human capital and knowledge flow be read as picturing everything and anything Californian as part of a romantic ideal.

 

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Recommended Reading: Garrett and Kovarsky’s New Casebook on Federal Habeas Corpus

A new casebook co-authored by University of Virginia law professor Brandon Garrett and my brilliant colleague Lee Kovarsky is the first to comprehensively cover habeas corpus, particularly exploring the topics of post-conviction review, executive and national security detention litigation, and the detention of immigrants. The book, just published by Foundation Press, is titled “Federal Habeas Corpus: Executive Detention and Post-conviction Litigation.” 

The privilege of habeas corpus — which ensures that a prisoner can challenge an unlawful detention, such as for a lack of sufficient cause or evidence — has grown increasingly complex and important. Just this week, the Supreme Court decided important habeas cases recognizing an innocence-exception to habeas time-limits, and making it easier for state inmates to use habeas corpus to challenge the ineffectiveness of their trial lawyer. See Garrett and Kovarsky on ‘Two Gateways to Habeas’)

Here is an excerpt of an interview of Professor Garrett and Professor Kovarsky posted on the UVA website:

“In writing this casebook, our goal was to create the subject,” Garrett said. “There is something deep connecting different parts of habeas corpus that are often taught in far-flung parts of courses or are not taught at all. Habeas corpus is now an extremely valuable and exciting course to teach, and we thought the subject demanded a rich set of teaching materials.”

Garrett, who has taught habeas corpus at UVA Law for eight years, co-wrote the book with Kovarsky, a 2004 Virginia Law graduate and a leading habeas and capital litigator who joined the University of Maryland’s Francis King Carey School of Law as an assistant professor in 2011.

“A few years ago, I started talking to Lee about habeas corpus,” Garrett said. “Lee writes insightful scholarship about habeas corpus, and is also a longtime habeas practitioner; he still works on high-profile death penalty cases in Texas. I sent him my course materials because he was starting teaching as a law professor at Maryland. And he immediately said that this should be a casebook.”

Kovarsky said he and Garrett decided to work together on the project to identify — and establish — a habeas canon that was “divorced from any immediate political, ideological or institutional objective.”

 “The decisional law and academic literature is polluted with too much erroneously accepted wisdom about the [writ of habeas corpus'] essence and, by implication, its limits,” he said. “That accepted wisdom, in turn, fuels legally substantial narratives that are, in many ways, best explored, challenged and modified in a classroom.”

Traditionally, Garrett said, law schools have taught habeas corpus as a short segment in federal courts or criminal adjudication courses rather than as a full class. Yet these brief segments, he said, are no longer sufficient.

The law of habeas corpus became significantly more complicated after Congress passed the Antiterrorism and Effective Death Penalty Act in 1996, which was passed in the wake of the Oklahoma City bombing and the first World Trade Center bombing. Read More

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

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?

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Recommended Reading: Starr and Rehavi on Racial Disparity in the Criminal Justice Process

Professor Sonja B. Starr and Professor M. Marit Rehavi have posted a fascinating new study on SSRN entitled Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker.  It presents new empirical research on the effects of United States v. Booker on racial disparity in the federal criminal justice system (including in prosecutorial decision-making).  The study challenges current thinking, finding that Booker has reduced –rather than exacerbated — racial disparity.  Professor Starr, my brilliant former colleague and faculty member of the University of Michigan Law School, presented this research in August at the Ninth Circuit Judicial Conference and in October at the National Sentencing Policy Institute, another federal judicial conference that also includes the US Sentencing Commission.

 

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BRIGHT IDEAS: Werbach and Hunter on For the Win: How Game Thinking Can Revolutionize Your Business

This Bright Ideas post looks at Kevin Werbach and Dan Hunter’s new book, For the Win: How Game Thinking Can Revolutionize Your Business. I have posted about it, but Kevin and Dan were gracious enough to answer some questions. We go into what is gamification, the differences between internal and external uses of the technique, how it relates to super-crunching, and the ethical and legal implications of the technique.

Kevin and Dan, you have drilled into an area, gamification, that seems almost arcane, a technique known to initiates. Why do it?

[KW] We actually think gamification is quite relevant for a broad range of audiences. First of all, video games have a huge impact on our culture. The games industry generates more revenue annually than Hollywood does at the box office. According to a Pew survey, 97% of American teeagers play video games, and it’s not just young people: the Entertainment Software Association reports that the average age of a gamer is 30, with almost half of them women. We can dismiss video games the way we used to dismiss social networking… and e-commerce before that… and the Internet before that… or we can look at why they are so powerful and apply those lessons in other contexts.

Second, the core goal of gamification is motivation. Think about all the situations where motivation matters: at work, at home, as consumers, in legal compliance, in social activism, and in collective action, to name a few. In all these cases, greater engagement drives material results. If there were motivational techniques that were proven in real-world businesses, consistent with decades of psychological research, and synergistic with big data and other leading-edge technology trends, wouldn’t you want to understand them?

And third, gamification is happening. It’s a rapidly growing business trend among startups, Fortune 500 companies, non-profits, and even government agencies. It raises a host of significant legal, operational, and ethical issues, as well as a variety of practical business concerns. We felt that my work on emerging technology and policy trends through the Supernova conference, and Dan’s scholarship on virtual worlds and background in cognitive psychology, gave us a unique ability to tackle these questions in a serious way. That’s why we put together the first gamification course at Wharton, and wrote For the Win as business guide to this emerging field.

OK, so what is gamification?

[KW] Gamification means applying design techniques from video games to business and other problems. In other words, it’s the process of motivating customers, employees, and communities by thinking like a game designer. It doesn’t mean turning everything into a game. Quite the contrary! Gamification involves incorporating elements of games into existing activities, the way Nike weaves levels and awards into its Nike+ system, or Microsoft motivated employees to review half a million Windows 7 dialogue boxes for localization errors with a competition among offices.

When you look at it that way, the basic concept of gamification is pretty simple, but doing it well is hard. Even experienced game designers often create games that aren’t much fun. Executing gamification effectively requires a combination of skills and knowledge, which we describe in For the Win.

Right. I see games are important in that they are big business and a big part of many folks’ lives. Let’s talk a little more about motivation. Is this approach a sort of applied behavioral economic one? Someone identifies levers and then builds systems to nudge or indeed shift the way others engage and behave?

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Recommended Reading: Robert Kaczorowski’s “Fordham University School of Law: A History”

Ever since the inception of the recession, we have been embroiled in a conversation about legal education–its costs, value, and flaws.  There has been much controversy, some informed and some uninformed about the need for reforms in legal education and ways forward.  Amidst this debate, legal historian Robert Kaczorowski has written a brilliant and engrossing history of Fordham Law School, one that highlights, among many issues, the struggles that law schools have with their universities about the funds they generate.  As Kaczorowski’s book “Fordham University School of Law: A History” highlights, universities see their law schools as cash cows, siphoning away their funding for the main university and taking away those funds from the law school.  Legal reform amidst that continuing state of affairs is a fraught enterprise, indeed.  Of the book, esteemed legal historian William Nelson (NYU) writes:

One of the best books ever written on American legal education.  Besides documenting the history of Fordham Law, Kaczorowski makes three major contributions to the knowledge of legal education’s history.  First, the book documents why large numbers of late-nineteenth and early-twentieth-century immigrants and their children needed the founding of a Catholic law school.  Second, it documents the factors that produce greatness in a law school.  Third, it traces a conflict over the funding of law school.  No other work has addressed these issues in depth.  Kaczorowski has done a remarkable job.

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Must Read: Professor Amanda Pustilnik’s “Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law”

At Jotwell, Professor Angela Harris has a spot-on review of my colleague Amanda Pustilnik’s superb article Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law, 97 Cornell L. Rev. 801 (2012).  In “The Pain of Others,” Professor Harris writes:

As Pustilnik explains, advances in neuroimaging techniques, including the fMRI and the positron emission tomography (PET) scan, have made pain objective, rendering obsolete Elaine Scarry’s famous declaration that pain is simultaneously the thing most existentially real (to the sufferer) and most existentially in doubt (to the observer). Observers can now look at the various areas of the brain activated by acute pain and tell, with relative certainty, whether the subject is experiencing pain or not. If fMRI measurements are repeated over time with various levels of stimulus, it should also be possible to tell what degree of pain the subject is experiencing.

These developments could, in theory, revolutionize a number of areas of law and policy. Pustilnik discusses two. First, in many states, homicide by means of “torture” – usually defined as the intentional infliction of “extreme” pain — is one basis for a first-degree murder charge. Could a defense attorney someday submit evidence that the pain caused the victim was not “extreme” enough to constitute torture? Could a prosecutor respond with fMRI evidence about the kind of pain experienced by the average (reasonable?) person in the defendant’s situation?

Second, Pustilnik suggests that neuroscientific evidence could be mobilized in order to draw the line between permissible and impermissible interrogation techniques. Many efforts to define torture in international conventions – as well as, Pustilnik notes, the infamous Bybee Memo justifying torture by U.S. officials in the detention center in Guantanamo Bay – turn on degrees of pain inflicted. Could science help set an objective standard for nations and their interrogators to abide by?

Ethicists fearing future unemployment will breathe a sigh of relief that Pustilnik’s answer is “no.” What’s so satisfying about her argument, however, is not her conclusion that ethics still matter, but the way in which Pustilnik uses these neuroscientific advances as a way to explore the moral import of pain and, more generally, the significance of the body to moral and ethical judgments. . . .

In recent years, neuroscience and cognitive science have appeared to be laying siege to substantive criminal law. New developments in science and technology are poised to help lawyers and their experts predict wrongdoing, assess the responsibility of juveniles, assess culpability, distinguish lies from truth on the witness stand, and decode memories – not to mention helping the police detect illegal activity from afar. At the same time, Stephen Morse has noted in a droll formulation, the excitement generated by new scientific discoveries can lead to “Brain Overclaim Syndrome.”  Rather than seeing a competition between science and ethics or technology and law and weighing in on one side or the other, Pustilnik uses our increasing ability to see and manipulate the workings of the body as an occasion to deepen our insight into the links between body and mind, objective and subjective. The dimensions of the physical and the social, she shows, are the double strands of morality’s DNA. Criminal law necessarily must grapple with both.