Data Privacy Day 2012

The Intersection of Privacy & Security

Featuring: The Honorable Julie Brill Commissioner, Federal Trade Commission

 Event Sponsored by:

The convergence of privacy and security: how do we overcome the conflict that seems to be inherent between the two? Is it a philosophical impossibility or an aspiration to be achieved?

Data security, according to common definition is the “confidentiality, integrity and availability” of data. It is the practice of ensuring that the data being stored is safe from unauthorized access and use, ensuring that the data is reliable and accurate and that is available for use when it is needed. Privacy on [...]]]> The National Cyber Security Alliance Presents:

Data Privacy Day 2012

The Intersection of Privacy & Security

Featuring: The Honorable Julie Brill
Commissioner, Federal Trade Commission

 Event Sponsored by:

The convergence of privacy and security: how do we overcome the conflict that seems to be inherent between the two? Is it a philosophical impossibility or an aspiration to be achieved?

Data security, according to common definition is the “confidentiality, integrity and availability” of data. It is the practice of ensuring that the data being stored is safe from unauthorized access and use, ensuring that the data is reliable and accurate and that is available for use when it is needed. Privacy on the other hand, is the appropriate use of data.

Our panel will consider the implications of how privacy and security are two sides of the same coin and what companies can and should do to ensure privacy and security are protected while allowing innovation to flourish.

Agenda

9:00 Registration
9:30 Welcome

• Michael Kaiser
  Executive Director, National Cyber Security Alliance
• Dan Solove
  John Marshall Harlan Research Professor of Law, The George Washington University School of Law
• Paul Schiff Berman
  Dean and Robert Kramer Research Professor of Law, The George Washington University School of Law

9:40 Keynote

The Honorable Julie Brill
Commissioner, Federal Trade Commission

10:10 Panel Discussion

Reflections & Aspirations: The Past, The Present & The Future

Moderator
Christopher Wolf
Founder & Co-Chair, Future of Privacy Forum and Partner, Hogan Lovells US LLP

Panelists

• David Hoffman
  Director of Security Policy and Global Privacy Officer, Intel
• Gerard Lewis
  Vice President, Deputy General Counsel & Chief Privacy Officer, Comcast Cable
• Ari Schwartz
  Senior Internet Policy Advisor, Office of the Secretary, U.S. Department of Commerce

10:50 Panel Discussion

Privacy & Security: Best Practices in Action

Moderator
Christopher Wolf
Co-Chair & Founder, Future of Privacy Forum and Partner, Hogan Lovells US LLP

Panelists

• Rick Buck
  Head of Privacy GSI, eBay
• Erin Egan
  Chief Privacy Officer, Policy, Facebook
• JoAnn C. Stonier
  Global Privacy & Data Protection Officer, MasterCard Worldwide
• Bob Quinn
  Senior Vice President-Federal Regulatory & Chief Privacy Officer, AT&T

Here’s the agenda.

The event will be webcast here.

I will be speaking about my forthcoming paper,The PII Problem: Privacy and a New Concept of Personally Identifiable Information, 86 New York University Law Review (forthcomng 2011) (with Paul M. Schwartz).  The paper should hopefully be out in print any day now.

The conference schedule and participants are great, and I think this should be a terrific event.  More information is here.

Below the fold is the schedule.

Where:

The National Press Club Murrow Room 529 14th Street, NW Washington, DC 20045

Agenda:

9:00-9:30 am – Opening Presentation: Setting the Stage: How De-Identification Came into U.S. law, and Why the Debate Matters Today.

This year marks not only the 10 year anniversary of 9/11, but also 15 years since the passage of the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996″ (IIRAIRA), the bill that established the 287(g) program which later set the stage for Secure Communities program . . . . The government has . . . invest[ed] in enforcement strategies that violate our civil liberties and human rights. As the government has expanded these tactics, it has also invested resources to build a massive, complicated information sharing system where law enforcement agencies are given new powers. Law enforcement can now [...]]]> The conference “Securing Our Rights in the Information-Sharing Era” will be held in San Francisco early next month. From the announcement:

This year marks not only the 10 year anniversary of 9/11, but also 15 years since the passage of the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996″ (IIRAIRA), the bill that established the 287(g) program which later set the stage for Secure Communities program . . . . The government has . . . invest[ed] in enforcement strategies that violate our civil liberties and human rights. As the government has expanded these tactics, it has also invested resources to build a massive, complicated information sharing system where law enforcement agencies are given new powers. Law enforcement can now search through emails, listen to phone calls, track purchases and collect files on people who may or may not be suspected of any crimes. Local law enforcement is enforcing federal immigration laws, engaging in racial profiling and funneling migrants into detention and deportation. These enforcement tactics employed across the country and at the borders in the name of national security and immigration enforcement are affecting the rights of everyone in the United States.

For those interested in an academic treatment of information-sharing, Citron and I wrote this piece last year.

As promised, I’m filing a report from the Sixth Annual Empirical Studies Conference, held 11/4-11/5 at Northwestern Law School.  Several of the attendees at the Conference approached me and remarked on my posts from CELS V, IV, and III. That added pressure, coupled with missing half of the conference due to an unavoidable conflict, has delayed this post substantially.  Apologies!  Next time, I promise to attend from the opening ceremonies until they burn the natural law figure in effigy.  Next year’s conference is at Stanford.  I’ll make a similar offer to the one I’ve made in the past: if the organizing committee pays my way, I promise not only to blog [...]]]>

Northwestern's Stained Glass Windows Made Me Wonder Whether Some Kind of Regression Was Being Proposed

As promised, I’m filing a report from the Sixth Annual Empirical Studies Conference, held 11/4-11/5 at Northwestern Law School.  Several of the attendees at the Conference approached me and remarked on my posts from CELS V, IV, and III. That added pressure, coupled with missing half of the conference due to an unavoidable conflict, has delayed this post substantially.  Apologies!  Next time, I promise to attend from the opening ceremonies until they burn the natural law figure in effigy.  Next year’s conference is at Stanford.  I’ll make a similar offer to the one I’ve made in the past: if the organizing committee pays my way, I promise not only to blog the whole thing, but to praise you unstintingly.  Here’s an example: I didn’t observe a single technical or organization snafu at Northwestern this year.  Kudos to the organizing committee: Bernie Black, Shari Diamond, and Emerson Tiller.

What I saw

I arrived Friday night in time for the poster session.  A few impressions.  Yun-chien Chang’s Tenancy in ‘Anticommons’? A Theoretical and Empirical Analysis of Co-Ownership won “best poster,” but I was drawn to David Lovis-McMahon & N.J. Schweitzer’s Substantive Justice: How the Substantive Law Shapes Perceived Fairness.  Overall, the trend toward professionalization in poster display continues unabated.  Even Ted Eisenberg’s poster was glossy & evidenced some post-production work — Ted’s posters at past sessions were, famously, not as civilized. Gone are the days where you could throw some powerpoint slides onto a board and talk about them over a glass of wine!  That said, I’m skeptical about poster sessions generally.  I would love to hear differently from folks who were there.

On Saturday, bright eyed and caffeinated, I went to a Juries panel, where I got to see three pretty cool papers.  The first, by Mercer/Kadous, was about how juries are likely to react to precise/imprecise legal standards.  (For a previous version, see here.) Though the work was nominally about auditing standards, it seemed generalizable to other kinds of legal rules.  The basic conclusion was that imprecise standards increase the likelihood of plaintiff verdicts, but only when the underlying conduct is conservative but deviates from industry norms.  By contrast, if the underlying conduct is aggressive, jurors return fewer pro-plaintiff verdicts.  Unlike most such projects, the authors permitted a large number of mock juries to deliberate, which added a degree of external validity.  Similarly worth reading was Lee/Waters’ work on jury verdict reporters (bottom line: reporters aren’t systematically pro-plaintiff, as the CW suggests, but they are awfully noise measures of what juries are actually doing).  Finally, Hans/Reyna presented some very interesting work on the “gist” model of jury decisionmaking.

At 11:00, I had to skip a great paper by Daniel Klerman whose title was worth the price of admission alone – the Selection of Thirteenth-Century Disputes for Litigation.  Instead, I went to Law and Psychology III.  There, Kenworthey Bilz presented Crime, Tort, Anger, and Insult, a paper which studies how attribution & perceptions of dignitary loss mark a psychological boundary between crime and tort cases.  Bilz presented several neat experiments in service of her thesis, among them a priming survey- – people primed to think about crimes complete the word “ins-” as “insult,” while people primed to think about torts complete it as “insurance.”  (I think I’ve got that right – - the paper isn’t available online, and I’m drawing on two week old memories.)

At noon, Andrew Gelman gave a fantastic presentation on the visualization of empirical data.  The bottom line: wordles are silly and convey no important information.  Actually, Andrew didn’t say that.  I just thought that coming in.  What Andrew said was something more like “can’t people who produce visually interesting graphs and people who produce graphs that convey information get along?”

Finally, I was the discussant at an Experimental Panel, responding to Brooks/Stremitzer/Tontrup’s Framing Contracts:Why Loss Framing Increases Effort.  Attendees witnessed my ill-fated attempt to reverse the order of my presentation on the fly, leading me to neglect the bread in the praise sandwich.  This was a good teaching moment about academic norms. My substantive reaction to Framing Contracts is that it was hard to know how much the paper connected to real-world contracting behavior, since the kinds of decision tasks that the experimental subjects were asked to perform were stripped of the relational & reciprocal norms that characterize actual deals.

CELS: What I missed

The entire first day!  One of my papers with the cultural cognition project, They Saw a Protest, apparently came off well.  Of course, there was also tons of great stuff not written from within the expanding cultural cognition empire.  Here’s a selection: on lawyer optimism; on public housing, enforcement and race; on probable cause and hindsight judging; and several papers on Iqbal, none of which appear to be online.

What did you see & like?

The National Association of Women Judges is hosting their annual international conference in Newark, New Jersey on October 12-16. On October 14th, there will be a symposium at Rutgers Law School entitled Promoting Global Equality for Women Through the Law and on the 15th Seton Hall Law School will host break-out sessions on various topics including domestic violence, urban revitalization, immigration, forensic evidence, cross-cultural issues in the courts and leadership training. Seton Hall Law student Megan Altman will be receiving the Justice Ruth Bader Ginsburg scholarship which will be presented at the NAWJ Gala Saturday night at the Newark Club with Justice Ginsburg delivering the keynote address.

More information here at the NAWJ [...]]]> I just wanted to make this announcement about an extraordinary conference:

The National Association of Women Judges is hosting their annual international conference in Newark, New Jersey on October 12-16. On October 14th, there will be a symposium at Rutgers Law School entitled Promoting Global Equality for Women Through the Law and on the 15th Seton Hall Law School will host break-out sessions on various topics including domestic violence, urban revitalization, immigration, forensic evidence, cross-cultural issues in the courts and leadership training. Seton Hall Law student Megan Altman will be receiving the Justice Ruth Bader Ginsburg scholarship which will be presented at the NAWJ Gala Saturday night at the Newark Club with Justice Ginsburg delivering the keynote address.

More information here at the NAWJ website. According to an email I received, “There are more than 50 international judges registered for the conference from countries including Argentina, Canada, China, Gambia, Guam, Haiti, Honduras, India, Jordan, Korea, Lagos, Malawi, Moldova, Navajo Nation, Nepal, Philippines, Sarajevo, South Korea, Taiwan, Tanzania, and Uganda.”

Financial Institutions and Consumer Financial Services Section

AALS Annual Meeting – January 2012

Rubber Hits Road: Implementing Dodd-Frank amid Reform Fatigue

This program will take place one and a half years after the Dodd-Frank Act was signed into law. The law left many of the details of financial reform to be filled in by regulators, raising the risk of capture. Some of the most important rule makings have begun in earnest; others have stalled as reform fatigue sets in. Meanwhile, reform efforts in Europe and international regulatory initiatives remain works-in-progress.

What lessons can we draw from the implementation of Dodd-Frank so far? What have been the greatest achievements and the greatest disappointments as the legislative process has given way to the administrative? What devils have lain hidden [...]]]> Call for Papers:

Financial Institutions and Consumer Financial Services Section

AALS Annual Meeting – January 2012

Rubber Hits Road: Implementing Dodd-Frank amid Reform Fatigue

This program will take place one and a half years after the Dodd-Frank Act was signed into law. The law left many of the details of financial reform to be filled in by regulators, raising the risk of capture. Some of the most important rule makings have begun in earnest; others have stalled as reform fatigue sets in. Meanwhile, reform efforts in Europe and international regulatory initiatives remain works-in-progress.

What lessons can we draw from the implementation of Dodd-Frank so far? What have been the greatest achievements and the greatest disappointments as the legislative process has given way to the administrative? What devils have lain hidden in the details of the Federal Register? What aspects of reform have been largely forgotten? What does the path of financial reform say about legislative and regulatory process? What lessons can be drawn from the reform efforts in Europe and elsewhere? Does the focus on regulating institutions detract from a focus on regulating financial instruments, markets or economic functions and risks?

More ominously, is the crisis truly over? Are we at grave risk of fighting the last war? Has reform missed the mark altogether? This meeting is part of a project to engage the legal academy in sustained theoretical and policy contributions to financial regulation. It also presents an opportunity to look at specific rulemakings in detail, as well as to address larger questions about the course of reform after laws are made.

Call for papers:

Law teachers and other scholars are invited to submit manuscripts or abstracts dealing with any aspect of the foregoing topics. Junior faculty members are particularly encouraged to submit manuscripts or abstracts. A review committee consisting of Section officers will select one or more papers or proposals and will invite the author(s) of each selected submission to present their work at the program session in Washington, D.C. in January 2012.

Abstracts should be comprehensive enough to allow the review committee to meaningfully evaluate the aims and likely content of papers they propose. Please send manuscripts or abstracts to the Program Chair (Erik Gerding, University of Colorado) at profgerding@gmail.com no later than August 30, 2010. Please place the name and contact information of authors only on the cover page of submissions.

Please forward this Call for Papers to anyone who might be interested.

 The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.  To this end, the conference is aimed at bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals.  The organizers are hoping to be able to schedule presentations for all who submit and will group participants by subject matter.   

Professors who are interested in participating should submit an abstract of  150 [...]]]> Just a quick note that the Loyola University Chicago School of Law has scheduled its Second Annual Constitutional Law Colloquium for October 21 & 22, 2011.  The conference is being organized by Professors John E. Nowak, Juan Perea, Alexander Tsesis and Michael Zimmer.  

 The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.  To this end, the conference is aimed at bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals.  The organizers are hoping to be able to schedule presentations for all who submit and will group participants by subject matter.   

Professors who are interested in participating should submit an abstract of  150 to 200 words by May 31, 2011.  

Topics, abstracts, papers, questions, and comments should be submitted to:

 Program Administrator Carrie Bird, cbird@luc.edu

Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.

ClassCrits IV, “Criminalizing Economic Inequality”

This workshop, the fourth meeting of ClassCrits, takes as its theme the criminalization of economic inequality. The dominance of “free market” economic theory and policy has been accompanied in the U.S. by increasing reliance on the criminal justice system to make and enforce economic policy. The criminal justice system is increasingly used to control persons and groups whose participation in formal markets is marginal at best. Many aspects of traditional immigration law have morphed into “crimmigration”, appropriating domestic criminal law enforcement tools and redefining whole communities of workers and their families as “illegal [...]]]> The ClassCrits blog has a number of interesting posts up recently. The group has announced a call for papers for a September conference; here is the notice:

ClassCrits IV, “Criminalizing Economic Inequality”

This workshop, the fourth meeting of ClassCrits, takes as its theme the criminalization of economic inequality. The dominance of “free market” economic theory and policy has been accompanied in the U.S. by increasing reliance on the criminal justice system to make and enforce economic policy. The criminal justice system is increasingly used to control persons and groups whose participation in formal markets is marginal at best. Many aspects of traditional immigration law have morphed into “crimmigration”, appropriating domestic criminal law enforcement tools and redefining whole communities of workers and their families as “illegal people.” States and municipalities have criminalized the lives of homeless people, including those who are mentally ill.

International markets in heroin, cocaine, and marijuana are the targets of a “war on drugs” fought through criminal justice (and military) methods. Criminal law is used to deter and punish sex trafficking, and the criminal justice system buttresses, or substitutes for, welfare policy. At the same time, corporate wrongdoing has been lightly punished, if at all, and the drumbeat against “government” as the enemy of the people continues unabated. In this sense, economic inequality has not been “criminalized” at all. Quite the opposite, powerful interests encourage American citizens to see economic inequality as natural and good. Criminalizing Economic Inequality will provide an opportunity for legal scholars, economists, policymakers, activists, and others to critically examine the relationship between state power and market power in upward redistribution and the continued spread of laissez-faire ideology.

Proposals are due May 6th to classcrits@gmail.com. Anyone familiar with the work of Glenn Greenwald or Matt Taibbi will find much of interest here. I hope to attend the conference and get more involved in this important group. One need only compare the treatment of one loan applicant and the total lack of prosecutions of top financial executives to see the enduring relevance of the conference themes.

The Yale Law Journal Online has just published the final piece of a symposium devoted to William N. Eskridge, Jr. and John Ferejohn’s remarkable new book, A Republic of Statutes: The New American Constitution. The book chronicles the development of constitutional principles derived not directly from the text of the Constitution itself but from the implementation of entrenched “superstatutes” by administrative and executive officials. The symposium essays examine both the broad contours of the theory advanced by Eskridge and Ferejohn as well as its application to particular fields of law, such as immigration, national security, and health care. Visit YLJ Online to read the full collection:

This one-day conference will be held at TJSL’s brand-new state-of-the-art building in downtown San Diego, and will feature the annual Ruth Bader Ginsburg Lecture (founded in 2003 with generous support from Justice Ginsburg), by our Keynote Speaker, Interim Associate Dean Stacy Leeds, University of Kansas School of Law, former Justice of the Cherokee Nation Supreme Court and currently chief judge of three Indian Nation tribal courts. Her Lecture will be titled: “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law.”

Leeds will join a remarkable national assemblage [...]]]> It is my pleasure to invite you to Thomas Jefferson School of Law’s upcoming 10th Anniversary Women and the Law Conference, “Gender Justice and Indian Sovereignty: Native American Women and the Law,” on Friday, February 18, 2011.

This one-day conference will be held at TJSL’s brand-new state-of-the-art building in downtown San Diego, and will feature the annual Ruth Bader Ginsburg Lecture (founded in 2003 with generous support from Justice Ginsburg), by our Keynote Speaker, Interim Associate Dean Stacy Leeds, University of Kansas School of Law, former Justice of the Cherokee Nation Supreme Court and currently chief judge of three Indian Nation tribal courts. Her Lecture will be titled: “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law.”

Leeds will join a remarkable national assemblage of about two dozen speakers, all deeply experienced leaders of Indian Nation Tribal courts, governments, business, law practice, and academia. They will address a wide range of issues affecting American Indian women, including gender-related violence and Indian Country law enforcement, development of Tribal courts, governments, and businesses, and the intersection of Native identity, civil rights, sexism, and racism.  The conference will combine nationally known speakers with strong local community involvement, reflected in several speakers who are leaders in San Diego County and Southern California Indian Nation communities.

More information and a registration link may be found at http://www.tjsl.edu/wlc2011. There will be a free shuttle service between the conference hotel, The Handlery (a conference rate is available for rooms there), and the law school.  The full conference program is pasted below.  For further information, you should please feel free to contact the faculty organizer:

Bryan H. Wildenthal
Professor of Law
Thomas Jefferson School of Law
bryanw@gmail.com

I hope to see some of you there!

–

Thomas Jefferson School of Law

10th Anniversary Women and the Law Conference

Friday, February 18, 2011  — 1155 Island Avenue, San Diego, CA 92101

Gender Justice and Indian Sovereignty:

Native American Women and the Law

Sponsored by the TJSL Women and the Law Project

Co-Sponsored by the California Indian Law Association

Program Schedule

8:00-8:30 am: Continental Breakfast (provided) and Social Gathering

Conference registration from 8:00 am to 12:00 noon; CLE available for all panels

8:30-8:40 am: Call to Order and Welcoming Remarks

Bryan H. Wildenthal, Professor, Thomas Jefferson School of Law; Conference Organizer; and
Board Member, California Indian Law Association

Julie A. Greenberg, Professor, Thomas Jefferson School of Law, and Co-Founder, Thomas Jefferson
School of Law Women and the Law Project

Rudy Hasl, Dean and President, Thomas Jefferson School of Law

8:40-9:40 am: Panel 1, Intersectionality and Civil Rights, Part One

This panel will address the intersection of Native, Tribal, and gender identities, including a focus on gender as a factor in Tribal citizenship.

Moderator: Catherine Deane, Reference Librarian, Thomas Jefferson School of Law

Rina Swentzell, Author and Member, Santa Clara Pueblo

Gloria Valencia-Weber, Professor, University of New Mexico School of Law, and Board Member,
Legal Services Corporation

Joanne Willis Newton, Sole Practitioner (San Diego); Judge Pro Tempore, Intertribal Court of
Southern California; Member, Cree Nation of Chisasibi, Québec; and former President,
California Indian Law Association

9:40-9:50 am: Break

9:50-11:00 am: Panel 2, Intersectionality and Civil Rights, Part Two

This panel will address intersections of Native, Tribal, and other identities, focusing more broadly on racial, ethnic, and religious as well as gender identities, and considering ways in which struggles for Indian sovereignty and Native rights have played out within the broader context of civil rights movements and litigations.

Moderator: Kaimipono David Wenger, Assistant Professor, Thomas Jefferson School of Law

Kristen A. Carpenter, Associate Professor, University of Colorado Law School, and Chair,
Federal Bar Association Indian Law Conference, 2010 and 2011

Wenona T. Singel, Assistant Professor and Associate Director, Indigenous Law and Policy Center,
Michigan State University College of Law; Chief Appellate Judge, Grand Traverse Band of
Ottawa and Chippewa Indians; and Justice, Little Traverse Bay Bands of Odawa Indians

Linda Rose Locklear, Professor of Sociology and American Indian Studies, Palomar College

Lawrence R. Baca, Former President, Federal Bar Association (2009-10); U.S. Department of
Justice, Trial Attorney, Civil Rights Division (1976-2004), and Deputy Director, Office of
Tribal Justice (2004-08)

11:00-11:10 am: Break

11:10 am-12:20 pm: Panel 3, Gender-Related Violence and Indian Country Law Enforcement

This panel will address the epidemic of gender-related violence, including domestic violence, faced by many American Indian women, and the related challenges of Indian Country law enforcement, including the roles of Indian Nation governments, Tribal courts, Federal and State authorities, PL-280, and the Tribal Law and Order Act of 2010.

Moderator: Claire Wright, Associate Professor, Thomas Jefferson School of Law

Barbara Creel, Associate Professor, University of New Mexico School of Law

Sarah Deer, Assistant Professor, William Mitchell College of Law

Carole E. Goldberg, Jonathan D. Varat Professor and Faculty Chair, Native Nations Law and Policy
Center, UCLA School of Law; Director, UCLA Joint Degree Program in Law and American
Indian Studies; Justice, Hualapai Court of Appeals; Member, Indian Law and Order
Commission; and former Vice-President and Founding Board Member, California Indian Law
Association

Diane J. Humetewa, Attorney, Squire Sanders Public Advocacy LLC (Phoenix); former U.S.
Attorney, District of Arizona (2007-09); Chief Counsel, U.S. Senate Committee on Indian Affairs;
and Judge Pro Tempore, Hopi Tribal Appellate Court

12:20-1:00 pm: Break, Hot Buffet Lunch (provided), and Open Seating for Lunchtime Keynote Address

1:00-2:30 pm: Ruth Bader Ginsburg Lecture (Keynote Address) and Response (Panel 4)

The Ginsburg Lecture and response panel will address a wide range of issues affecting American Indian women, including gender-related violence and legal remedies, property law, economic development and the law, and the leadership roles of Native women in Indian law and Tribal courts and governments.

Ruth Bader Ginsburg Lecturer: Stacy L. Leeds, Interim Associate Dean, Professor, and Director,
Tribal Law and Government Center, University of Kansas School of Law; Chief Justice, Supreme
Court, Kickapoo Tribe of Oklahoma; Chief Justice, Supreme Court, Kaw Nation; and Chief
Judge, Prairie Band Potawatomi Nation District Court

Resistance, Resilience, and Reconciliation: Reflections on Native American
Women and the Law

Moderator: Marjorie Cohn, Professor, Thomas Jefferson School of Law

Angelique EagleWoman (Wambdi A. WasteWin), Associate Professor and James E. Rogers Fellow
in American Indian Law, University of Idaho College of Law, and Judge Pro Tempore, Coeur
d’Alene Tribal Court

Aliza Organick, Professor, Washburn University School of Law, and Chair, AALS Section on Indian
Nations and Indigenous Peoples

Angela R. Riley, Professor, UCLA School of Law; Director, UCLA American Indian Studies Center;
and Chief Justice, Supreme Court, Citizen Potawatomi Nation of Oklahoma

Rebecca Tsosie, Professor, Willard H. Pedrick Distinguished Research Scholar, and Executive
Director, Indian Legal Program, Arizona State University College of Law; Professor, University
of New Mexico School of Law (from Summer 2011); and Justice, Supreme Court, Fort McDowell
Yavapai Nation

2:30-2:40 pm: Break

2:40-3:40 pm: Panel 5, Building the Future: Indian Country Economic Development

This panel will address Tribal economic development, gaming, and other fields of business, the role of law in facilitating such development, and the leadership roles of American Indian women.

Moderator: Luz Herrera, Assistant Professor, Thomas Jefferson School of Law

Debora G. Juarez, Partner and Chair, Tribal Practice Group, Williams Kastner (Seattle)

Angela M. Medrano, Staff Attorney, California Indian Legal Services; President, Native American
Lawyers Association of San Diego County; former Lead Gaming Commissioner, Cahuilla Band
of Indians Tribal Gaming Agency, and Treasurer and Board Member, California Indian Law
Association

Kate Spilde, Associate Professor, San Diego State University School of Hospitality and Tourism,
and Chair, Sycuan Institute on Tribal Gaming

3:40-3:50 pm: Break

3:50-5:20 pm: Panel 6, Building the Future: Developing Tribal Governments and Courts

This panel will address the development of Tribal courts and judicial systems, as well as executive and legislative functions of Indian Nation governments, with a focus on both California and national perspectives and the leadership roles of American Indian women.

Moderator: Michele Fahley, Deputy General Counsel, Pechanga Band of Mission Indians, and
Board Member, California Indian Law Association

Abby Abinanti, Chief Judge, Yurok Tribe, and Commissioner, San Francisco Superior Court

Meredith D. Drent, Staff Attorney, San Manuel Band of Serrano Mission Indians; Justice, Supreme
Court, Osage Nation; and President, California Indian Law Association

Elizabeth Ann Kronk, Assistant Professor, University of Montana School of Law; Chief Judge,
Appellate Court, Sault Ste. Marie Tribe of Chippewa Indians; and Chair, Federal Bar
Association Indian Law Section

Devon Lee Lomayesva, Executive Director, California Indian Legal Services; Member, Steering
Committee, National Association of Indian Legal Services; Co-Founder and Board Chair,
American Indian Recruitment Programs; and former Tribal Councilmember and In-House Legal
Counsel, Iipay Nation of Santa Ysabel

Jill Elizabeth Tompkins, Clinical Professor and Director, American Indian Law Clinic, University of
Colorado Law School, and Appellate Justice, Mashantucket Pequot Tribal Nation,
Passamaquoddy Tribe, and Pokagon Band of Potawatomi Indians

Christine Williams, Sole Practitioner (Pleasanton, CA); Of Counsel, LaPena Law Corporation;
Chief Judge, Hopland Band of Pomo Indians; Appellate Judge, Northern California Tribal Court
Coalition; Consultant, California Court Appointed Special Advocates Association; Visiting
Professor of American Indian Studies, Mills College; and former President, California Indian
Law Association

5:20-5:30 pm: Closing Remarks

Bryan H. Wildenthal, Professor, Thomas Jefferson School of Law; Conference Organizer; and
Board Member, California Indian Law Association

David Fontana, George Washington Law School

Heidi Kitrosser, Minnesota Law School

Alison LaCroix, University of Chicago Law School

Carlton Larson, UC Davis Law School

Kim Roosevelt, University of Pennsylvania Law School

Ilya Somin, George Mason Law School

Amanda Tyler, George Washington Law School

If you’re interested in attending, please contact Amanda Mulroony at amanbake@iupui.edu

Organized by my colleague, Shubha Ghosh (and starring, among others, CoOp-erator Deven Desai), the goal is important:  How do we understand the intergenerational consequences of a legal regime—intellectual property—that is strongly determined by the present, but which has significant, but under-theorized, consequences for the future?  Fights about extending the term of the Mickey Mouse copyright—or any set of long-haul rights—don’t just affect my kids, but potentially their kids, their kids’ kids, and so on.  These are, in short, really fights about intergenerational equity.

I was only able to hear Michigan’s Peggy Radin (Property Longa, Vita Brevis) and Penn’s [...]]]> Yesterday, I had the all-too-brief pleasure of sitting in on the first couple of talks at the Wisconsin Law Review’s Symposium, Intergenerational Equity and Intellectual Property, here in Madison.

Organized by my colleague, Shubha Ghosh (and starring, among others, CoOp-erator Deven Desai), the goal is important:  How do we understand the intergenerational consequences of a legal regime—intellectual property—that is strongly determined by the present, but which has significant, but under-theorized, consequences for the future?  Fights about extending the term of the Mickey Mouse copyright—or any set of long-haul rights—don’t just affect my kids, but potentially their kids, their kids’ kids, and so on.  These are, in short, really fights about intergenerational equity.

I was only able to hear Michigan’s Peggy Radin (Property Longa, Vita Brevis) and Penn’s Matt Adler (Intergenerational Equity: Puzzles for Welfarists), but as expected, both provided awesome overviews of these sorts of problems.  As Radin pointed out, intellectual property (knowledge and information law generally) always involves two types of generational problems: One is temporal (my parents, me, my kids, their kids, etc.); the other is technological (my students barely know from videotape; I will never beat my daughter at any computer game).

Adler explained that it is easy (and perhaps imprudent) to dismiss the utility of welfare economics as a tool to make these sorts of decisions.  Certainly, we might say, Benthamite sums of utils could predict little for those not in existence (the future):  what would their utility function be, really?

Hope I die before you get old

Yet, he observed, robust and subtle analytic models and conceptual frameworks are being developed by the Sens and Arrows of the world, and they may (if the future is bright) help develop more equitable and effective decision tools for matters with a long temporal reach.

Those who follow state politics may find this all a bit ironic. Wisconsin’s recent election was a decisive victory for Republicans, who captured both houses of the legislature and the Governor’s office on a message which may strain the state’s motto, “Forward.”

If Republicans keep their word, tax breaks for the rich and elderly will replace education and healthcare spending for the young and unborn; fossil fuel (old tech) subsidies will replace biofuel (new tech) development; and the University may have to fight to continue its path-breaking stem-cell research, certainly a way to kill both jobs in the present and medical miracles in the future. This may be good for baby boomers, but isn’t likely so hot for their grandkids.

Hope you die before I get old

Wisconsin’s liberals are, of course, despondent over their loss of power and position.  Yet, forecasting and discounting long-term causation are among the things that make questions of intergenerational equity  so interesting and difficult.  I doubt Newt Gingrich thought in 1994 that the Contract with America would virtually assure Bill Clinton a second term, but today the former seems to have led to the latter.   Likewise, it is certain that neither Jeremy Bentham nor Pete Townshend could have predicted the duration of their memetic contributions to today’s discussions about tomorrow.  They probably just thought it was all rock and roll.

For the last several years, I’ve posted recaps of the Annual Empirical Studies Conference.  (See me, @ Cornell, @ USC).  This year, as promised, will be no different.  Yale hosted CELS V, and the committee did a bang up job: the food was tasty; there were no technical snafus of note; and the panels appeared to have a high degree of internal validity & congruence. Richard Brooks, Alan Gerber, Dan Kahan, Yair Listokin, Tracey Meares, and (especially) Roberta Romano are all due a round of applause, or, better yet, supersized computer monitors so they can see their data better.  In this post, I’m going to provide a running diary of the conference.  It will be like you [...]]]>

Data Collection Makes Everyone Grumpy and Hunched Over

For the last several years, I’ve posted recaps of the Annual Empirical Studies Conference.  (See me, @ Cornell, @ USC).  This year, as promised, will be no different.  Yale hosted CELS V, and the committee did a bang up job: the food was tasty; there were no technical snafus of note; and the panels appeared to have a high degree of internal validity & congruence. Richard Brooks, Alan Gerber, Dan Kahan, Yair Listokin, Tracey Meares, and (especially) Roberta Romano are all due a round of applause, or, better yet, supersized computer monitors so they can see their data better.  In this post, I’m going to provide a running diary of the conference.  It will be like you were there with me, except you don’t have to suffer through my bouts of social anxiety!

Unfortunately, I missed the hottest ticket of the conference, Bruce Ackerman’s commentary on Law/Versteeg’s The Evolution and Ideology of Global Constitutionalism.  From all reports, Ackerman said something like: “wrong questions, wrong data, wrong theory,” and then imploded in frustration.  Instead of watching those fireworks, I was watching Yair Listokin present The Meaning of Contractual Silence: A Field Experiment [Here’s an older version of the paper].  Listokin ran a field experiment selling ipods on ebay, some with a warranty, some as-is, and some silent on the warranty term. He found that individuals paid attention to the contract, and there was some evidence that the UCC default was about what they thought silence meant.  As he admitted, there were problems with the design of the study – particularly, (1) small & skewed samples; and (2) a lack of clarity about how much buyers know about ebay’s unique and self-contained dispute resolution system.  As someone remarked after the presentation, it would have been interesting had Listokin sold all the customers bad ipods (instead of good ones) and studied how the contract terms influenced behavior post-“breach”.  Then again, who needs that IRB hassle?

I then saw three cool experimental papers at a Law and Psychology panel. The stone-cold coolest was by Sah/Loewenstein/Cain, and presented by SOM’s Daylian Cain.  The central claim in The Burden of Disclosure is that there is a “previously unrecognized perverse effect of disclosure: Disclosure of an advisor’s conflict of interest can decrease advisees’ trust in the advice while simultaneously increasing pressure to comply with that advice. This compliance pressure comes from two mechanisms: (1) recipients fear signaling distrust of the advisor, and (2) recipients feel an increased pressure to help their advisor when the advisor’s personal interests have been disclosed.”  Here’s the set-up.  Apparently, the experimenters have truck that they drive around town.  They lure people into the truck.  Once inside, subjects are paired.  One member of the pair is told they can roll one of two dice.  Each dice has a lottery attached to how it lands (i.e., if it lands on one, you get a starbucks card; two a snack; etc.)  One of the dice-lotteries has a higher expected payoff.  Now, they have the non-rolling subject advise the choosing subject on which die to pick.  (The non-picker has no special knowledge.)  Sometimes, the advisor has a conflict – s/he gets the good lottery if the picker picks the bad die.  Not surprisingly, that conflict leads the advisor to suggest picking the bad die, and because people are suggestible, the advice is taken more often than not.  But the wild manipulation happens when the advisor discloses this conflict to the picker. Notwithstanding the obvious truth that the advisor now has told the picker than they are motivated to give bad advice, the picker actually accepts the recommendation more often!  As Daylain explained, the mechanism might be a form of interpersonal conflict-avoidance: we don’t want to look someone else in the face and tell them that we think they are corrupt.  (Dan Simon, commenting, suggested that the mechanism might simply be a dictator game-like fairness norm.)

What’s troubling about this experiment is that disclosure is the law’s preferred solutions to many conflict problems.  This perverse effect has the potential to be at play in many real-world situations – lawyers, doctors, brokers, managers, shareholders – where we expect the disclosure to clean otherwise fouled waters.  And maybe it isn’t limited to the situation where the disclosing party makes a disclosure that is obviously against their self-interest. What about when journalists disclose their political contributions as a way of legitimizing them?  Though this would seem to clarify their ideology & perhaps cause us to think carefully about how they construct stories, maybe it is, instead, making us trust them more.  (Evidence against Olbermann?)  Similarly, political regulation seems to have shifted decisively away from substantive checks toward a sunlight/disinfectant model.  This research agenda suggests a host of pretty deep problems with that approach.

Moving right along, Yale apparently spent something like $500M on the poster session, because the overall production quality has now approached that of a drug-company-funded science convention.  Highlights included (1) Bermant/Barness-Blakeman’s Beyond Ownership: Lessees and Idiosyncratic Valuation, which extends the endowment effect literature to mere tenants; (2) Estreicher/Heise/Nash’s Examining the Instrumental Use of Pro Bono Projects by Law Firms: Preliminary Evidence, which suggests that pro bono hours are in part a function of firm health & that over time, firms  have increasingly used pro bono for training purposes; and (3) Buccafusco/Sprigman’s The Creativity Effect, reporting on an endowment/creation experiment. Yale also spent tons of money on food, but I’d caution future organizers that the make-your-own-bruschetta trend is a bad one, especially when you are in a roomful of socially and physically awkward people.

I chaired a panel Saturday, and failed to keep Dan Simon or Dan Kahan to the time they were allotted.  Simon’s presentation on Simon/Stenstrom/Read’s The Spontaneous Arousal of Hot Cognitions in the Course of Deciding Criminal Cases was still pretty fun, even as I stewed at my lack of power. Unfortunately, chairing the panel meant I had to miss Cohen’s Expeditiousnesses and Delay in State Courts: An Exploration of Case Processing Time in Civil Trials, which I heard was great, and Bilz/Gold’s An Experimental Test of Civil Recourse Theory, which I know is awesome and which sheds some pretty useful light on why recourse theory might (and might not) explain private law doctrine.  (The paper doesn’t appear available online – email Bilz if you are interested in reading it.)  I then saw the Cohen/Lawless paper, Less Forgiven: Race and Chapter 13, which suggests that attorneys are pushing black (but not white) clients into making suboptimal choices in bankruptcy.  The best part of the paper was a survey-experiment (in the nature of a name/resume study) administered to bankruptcy attorneys nationwide.  This is the kind of work that ought to make national news & promote law reform.

I then presented Boyd/Hoffman, Litigating Toward Settlement, with Ted Eisenberg commenting.  As it turns out, you can get through 25 slides in less than 18 minutes. You just need to be nervous enough to talk very, very fast.  I saw a few more excellent papers (e.g., Pardo/Nash’s Ideological Voting in Bankruptcy) and called it a conference.

Presenter: CELS XXI

Some themes:

(1)        More experiments & psychologists at the conference than in past years.  It seemed that John Darley was on every other panel.  There were relatively fewer (I thought) case-counting projects, though this could be just the panels I went to.

(2)        More co-authorship between law professors & folks from other disciplines (rather than people from other disciplines coming in to talk about law, or law professors banding together).

(3)        The overall quality of the methods was quite sophisticated.  To the extent that the conference once billed itself as a place for people who needed help to get better … well, that’s not exactly what’s happening today.  The level of polish and gloss is high.  If if I were a junior scholar with incomplete data or methods, I don’t know that I’d feel comfortable presenting at CELS.  I do think that schools would do well to send empirically minded junior scholars to watch the panels – you can learn tons from watching error!

(4)        I only saw one paper that manifested Leiter’s claim that ELS practictioners use datasets to chase questions.  And that is exactly what the paper’s commentator said, though in much nicer terms.  Self-policing is alive and well.

(5)        CELS VI will be at Northwestern.  Will Lee Epstein make a push against powerpoint and toward whatever cool software she uses to run presentations?  Now’s her chance to make it happen!

(6)      After the dinner speech by Orly Ashenfelter, I know much more about wine pricing than I used to.  Good cocktail party conversation information.

I’m at CELS in New Haven for the next two  days and will report on the papers when I rheturn.

The broad focus of the Symposium will be to discuss preventive detention and the future of United States national security policy.  As the United States prepares for the closing of Guantánamo Bay detention center, the country still faces the challenge of balancing national security and individual rights.  Controversy continues to plague U.S.-run prisons abroad, such as Bagram in Afghanistan; at the same time, the country has yet to resolve critical questions surrounding the scope of executive detention authority in the “war on terrorism,” leaving the future of U.S. detention policy uncertain.  We hope to discuss [...]]]> On Thursday, October 28, the Seton Hall Law Review is hosting a day-long symposium in Newark, New Jersey entitled National Security Policy and the Role of Lawyering: Guantanamo and Beyond.  Here’s the description:

The broad focus of the Symposium will be to discuss preventive detention and the future of United States national security policy.  As the United States prepares for the closing of Guantánamo Bay detention center, the country still faces the challenge of balancing national security and individual rights.  Controversy continues to plague U.S.-run prisons abroad, such as Bagram in Afghanistan; at the same time, the country has yet to resolve critical questions surrounding the scope of executive detention authority in the “war on terrorism,” leaving the future of U.S. detention policy uncertain.  We hope to discuss the mark Guantánamo has left on the United States and explore the future of preventive detention from the standpoint of lawyers, scholars, policymakers, the media, and former detainees. 

Panelists will include Peter Finn of the Washington Post,  Dafna Linzer from ProPublica, Steve Vladeck from American University and Joe Margulies from Northwestern.   You can find the full symposium schedule and a list of panelists here.

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 [...]]]> 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.

Scholars who have held a full-time academic appointment for less than seven years as of the submission date are eligible.   Subject matters encompass accounting, banking, bankruptcy, corporations, economics, finance, and securities.

Interested scholars should submit a summary or  draft, preferably by e-mail, before October 15, 2010.  Submissions, along with any inquiries related to the Workshop, should be directed to:  Professor Lisa M. Fairfax, Leroy Sorenson Merrifield Research Professor of Law, George Washington University Law School, Washington, DC 20052.  Email: lfairfax@law.gwu.edu

Papers and Junior Faculty Scholarship Prizes will be selected after a blind review by a committee of C-LEAF’s Executive Board. Authors of accepted papers will be notified by November 19, 2010.   

The Workshops and Prizes are made possible by generous sponsorship of Schulte Roth & Zabel LLP, one of the leading law firms serving the financial services industry and known for its premier practice in the area of private investment funds and private equity M&A.