Category: Conferences

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FAN.1 (First Amendment News)

From time to time, I will post some First Amendment news items that might otherwise escape the attention of free expression enthusiasts.  It may be about a controversy or brief or new book or article or conference or what have you.  If you wish to send along your own newsworthy item for consideration, drop my an e-mail.  With that, here is my first dollop of news:

  • On February 15th the Harvard Law Review will host a conference on “Freedom of the Press” in celebration of the 50th anniversary of New York Times Co. v. Sullivan.  Participants include: Mark Tushnet (Harvard), Stuart Benjamin (Duke), Sonja R. West (U. Ga.), RonNell Andersen Jones (BYU), David Anderson (U. TX), Marvin Ammori (New America Foundation), Marjorie Heins (Free Expression Policy Project), Jonathan Zittrain (Harvard), Rebecca Tushnet (Georgetown), Caroline Corbin (U. Miami), Jack Balkin (Yale), Yochai Benkler (Harvard), and Dawn Nunziato (GWU).
  • Speaking of NYT v. Sullivan, Lee Levine (a noted First Amendment media lawyer) and Steve Wermiel (a professor at American University Law School) have just published The Progeny: Justice William Brennan’s Fight to Save New York Times v. Sullivan (American Bar Association, 2014). Check out my SCOTUSblog interview with the authors.
  • Recently, the Minnesota Law Review published a thought-proving article titled “Speech Engines” by James Grimmelmann (U. MD Law).  It is one of the best pieces of scholarship I have seen concerning the regulatory debates over just how the law – of copyright, trademark, defamation, privacy and of the First Amendment – should treat Google’s search engines.
  • Gabriel Schoenfeld, writing in the Weekly Standard, just reviewed Floyd Abrams’ latest book, Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013).  (For Mr. Abrams’ views on McCullen v. Coakley (the Mass. abortion-protest case now before the Court), see  Jonathan H. Adler’s post over at the Volokh Conspiracy.)
  • This June Yale Law School Dean Robert Post will release his latest book, Citizens Divided: Campaign Finance Reform and the Constitution (Harvard University Press, 234 pp., $25.00).  The book is an outgrowth of Post’s 2013 Tanner Lectures at Harvard.  Here is a little excerpt from the publisher’s blurb: “Defenders of the First Amendment greeted the ruling with enthusiasm, while advocates of electoral reform recoiled in disbelief. Robert Post offers a new constitutional theory that seeks to reconcile these sharply divided camps.” Post’s text is followed by commentaries by Pamela S. Karlan, Lawrence Lessig, Frank I. Michelman, and Nadia Urbinati.
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CELS VII: Data is Revealing Part 2

 

Shouldn't it be "data are revealing?"

Shouldn’t it be “data are revealing?”

[This is part 2 of my recap of the Penn edition of CELS, promised here. For Part 1, click here.  For previous installments in the CELS recap series, see CELS IIIIVV, and VIVII.]

Where were we?  I know: throwing stink-bombs at a civil procedure panel!

At the crack of dawn saturday I stumbled into the Contracts II panel. Up first was Ian Ayres, presenting Remedies for the No Read Problem in Consumer Contracting, co-authored with Alan Schwartz.  Florencia Marotta-Wurgler provided comments.  The gist of Ayres’ paper is that consumers are optimistic about only a few hidden terms in standard-form contracts. For most terms, they guess the content right. Ayres argued that should be concerned only when consumers believe that terms are better than they actually are.  The paper  proposes that firms make such terms more salient with a disclosure box, after requiring firms to learn about consumer’s knowledge on a regular basis. Basically: Schumer’s box, psychologically-calibrated, for everyone.  Florencia M-W commented that since standard-form contracts evolve rapidly, such a calibrated disclosure duty might be much more administratively complex than Ayres/Schwartz would’ve thought.  A commentator in the crowd pointed out that since the proposal relies on individuals’ perceptions of what terms are standard, in effect it creates a one-way ratchet. The more people learn about terms through the Ayres/Schwartz box, the weaker the need for disclosure. I liked this point, though it appears to assume that contract terms react fairly predictably to market forces. Is that true?  Here are some reasons to doubt it.

Zev Eigen then presented An Experimental Test of the Effectiveness of Terms & Conditions.  Ridiculously fun experiment — the subjects were recruited to do a presidential poll. The setup technically permitted them to take the poll multiple times, getting paid each time.  Some subjects were exhorted not to cheat in this way; others told that the experimenters trusted them not to cheat; others were given terms and conditions forbidding cheating. Subjects exhorted not to cheat and trusted not to cheat both took the opportunity to game the system significantly less often than those presented with terms and conditions. Assuming external validity, this raises a bit of a puzzle: why do firms attempt to control user behavior through T&Cs? Maybe T&Cs aren’t actually intended to control behavior at all! I wondered, but didn’t ask, if T&Cs that wrapped up with different formalities (a scan of your fingerprint; a blank box requiring you to actually try to sign with your mouse) would get to a different result.  Maybe T&Cs now signal “bad terms that I don’t care to read” instead of “contract-promise.”  That is, is it possible to turn online T&Cs back into real contracts?

Next, I went to Law and Psych to see “It All Happened So Slow!”: The Impact of Action Speed on Assessments of Intentionality by Zachary C. Burns and Eugene M. Caruso. Bottom line: prosecutors should use slow motion if they want to prove intent. Second bottom line: I need to find a way to do cultural cognition experiments that involving filming friends jousting on a bike. I then hopped on over to International Law, where Adam Chilton presented an experimental paper on the effect of international law rules on public opinion. He used a mTurk sample.  I was a concern troll, and said something like “Dan Kahan would be very sad were he here.” Adam had a good set of responses, which boiled down to “mTurk is a good value proposition!”  Which it is.

After lunch it was off to a blockbuster session on Legal Education. There was a small little paper on the value of law degrees. And then,  Ghazala Azmat and Rosa Ferrer presented  Gender Gaps in Performance: Evidence from Young Lawyers. They found that holding all else equal, young women lawyers tend to bill somewhat fewer hours than men, a difference attributable to being less likely to report being highly interested in becoming partners while spending more time on child care.  What was noteworthy was the way they were able to mine the After the JD dataset. What seemed somewhat more troubling was the use of hours billed as a measure of performance, since completely controlling for selection in assignments appeared to me to be impossible given the IVs available.  Next, Dan Ho and Mark Kelman presented Does Class Size Reduce the Gender Gap? A Natural Experiment in Law. Ho and Kelman found that switching to small classes significantly increases the GPA of female law students (eliminating the gap between men and women). This is a powerful finding – obviously,it would be worth it to see if it is replicable at other schools.

The papers I regret having missed include How to Lie with Rape Statistics by Corey Yung (cities are lying with rape statistics); Employment Conditions and Judge Performance: Evidence from State Supreme Courts by Elliott Ash and W. Bentley MacLeod (judges respond to job incentives);  and Judging the Goring Ox: Retribution Directed Towards Animals by Geoffrey Goodwin and Adam Benforado.  I also feel terrible having missed Bill James, who I hear was inspirational, in his own way.

Overall, it was a tightly organized conference – kudos to Dave Abrams, Ted Ruger, and Tess Wilkinson-Ryan.  There could’ve been more law & psych, but that seems to be an evergreen complaint. Basically, it was a great two days.  I just wish there were more Twiqbal papers.

 

 

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CELS VIII: Data is Revealing, Part 1.

 

"If you are going to mine my data, at least have the courtesy of displaying predictive probabilities!"

“If you are going to mine my data, at least have the courtesy of displaying predictive probabilities!”

[This is part 1 of my recap of the Penn edition of CELS, promised here.  For previous installments in the CELS recap series, see CELS III, IV, V, and VI, VII.]

Barry Schwartz might’ve designed the choice set facing me at the opening of CELS. Should I go to Civil Procedure I (highlighted by a Dan Klerman paper discussing the limits of Priest-Klein selection), Contracts I (where Yuval Feldman et al. would present on the relationship between contract clause specificity and compliance), on Judicial Decisionmaking and Settlement (another amazing Kuo-Chang Huang paper). [I am aware, incidentally, that for some people this choice would be Morton's. But those people probably weren't the audience for this post, were they.] I bit the bullet and went to Civ Pro, on the theory that it’d be a highly contentious slugfest between heavyweights in the field, throwing around words like “naive” and “embarrassing.”  Or, actually, I went hoping to learn something from Klerman, which I did. The slugfest happened after he finished.

In response to a new FJC paper on pleading practices, a discussant and a subsequent presenter criticized the FJC’s work on Twiqbal. The discussant argued that the FJC’s focus on the realities of lawyers’ practice was irrelevant to the Court’s power-grab in Twombly, and that pleading standards mattered infinitely more than pleading practice.  The presenter argued that the FJC committed methodological error in their important 2011 survey, and that their result (little effect) was misleading. The ensuing commentary was not restrained. Indeed, it felt a great deal like the infamous CELS death penalty debate from 2008. One constructive thing did come out of the fire-fight: the FJC’s estimable Joe Cecil announced that he would be making the FJC’s Twombly dataset available to all researchers through Vandy’s Branstetter program. We’ll all then be able to replicate the work done, and compare it to competing coding enterprises. Way to go, Joe!

But still, it was a tense session.  As it was wrapping up, an economically-trained empiricist in the room commented how fun he had found it & how he hoped to see more papers on the topic of Twombly in the future. I’d been silent to that point, but it was time to say something.  Last year in this space I tried being nice: “My own view would go further: is Twiqbal’s effect as important a problem as the distribution of CELS papers would imply?” This year I was, perhaps impolitically, more direct.

I conceded that analyzing the effect of Twombly/Iqbal wasn’t a trivial problem. But if you had to make a list of the top five most important issues in civil procedure that data can shed light on, it wouldn’t rank.* I’m not sure it would crack the top ten.  Why then have Twiqbal papers eaten market share at CELS and elsewhere since 2011? Some hypotheses (testable!) include: (1) civil procedure’s federal court bias; (2) giant-killing causes publication, and the colossi generally write normative articles praising transsubstantive procedure and consequently hate Twombly; (3) network effects; and (4) it’s where the data are. But these are bad reasons. Everyone knows that there is too much work on Twombly. We should stop spending so much energy on this question. It is quickly becoming a dead end.

So I said much of that and got several responses. One person seemed to suggest that a good defense of Twiqbal fixation was that it provided a focal point to organize our research and thus build an empirical community. Another suggested that even if law professors were Twiqbal focused, the larger empirical community was not (yet) aware of the importance of pleadings, so more attention was beneficent. And the rest of folks seemed to give me the kind of dirty look you give the person who blocks your view at a concert. Sit down! Don’t you see the show is just getting started?

Anyway, after that bit of theatre, I was off to a panel on Disclosure. I commented (PPT deck) on Sah/Lowenstein, Nothing to Declare: Mandatory and Voluntary Disclosure leads advisors to avoid conflicts of interestThis was a very, very good paper, in the line of disclosure papers I’ve previously blogged here. The innovation was that advisors were permitted to walk away from conflicts instead of being assigned to them immutably. This one small change cured disclosure’s perverse effect. Rather than being morally licensed by disclosure to lie, cheat and steal, advisors free to avoid conflicts were chastened by disclosure just as plain-vanilla Brandeisian theory would’ve predicted.   In my comments, I encouraged Prof. Sah to think about what happened if advisors’ rewards in the COI were returned to a third party instead of to them personally, since I think that’s the more legally-relevant policy problem. Anyway, definitely worth your time to read the paper.

Then it was off to the reception. Now, as our regular readers know, the cocktail party/poster session is a source of no small amount of stress. On the one hand, it’s a concern for the organizers. Will the food be as good as the legendary CELS@Yale? The answer, surprisingly, was “close to it”, headlined by some grapes at a cheese board which were the size of small apples and tasted great.  Also, very little messy finger food, which is good because the room is full of the maladroit.  But generally, poster sessions are terribly scary for those socially awkward introverts in the crowd. Which is to say, the crowd. In any event, I couldn’t socialize because I had to circle the crowd for you. Thanks for the excuse!

How about those posters?  I’ll highlight two. The first was a product of Ryan Copus and Cait Unkovic of Bolt’s JSP program. They automated text processing of appellate opinions and find significant judge-level effects on whether the panel reverses the district court’s opinion, as well as strong effects for the decision to designate an opinion for publication in the first instance. That was neat. But what was neater was the set of judicial base cards, complete with bubble-gum and a judge-specific stat pack, that they handed out.  My pack included Andrew Kleinfeld, a 9th circuit judge who inspired me to go to law school.  The second was a poster on the state appellate courts by Thomas Cohen of the AO. The noteworthy findings were: (1) a very low appeal-to-merits rate; and (2) a higher reversal rates for plaintiff than defendant wins at trial. Overall, the only complaint I’d make about the posters was that they weren’t clearly organized in the room by topic area, which would have made it easier to know where to spend time.  Also, the average age of poster presenters was younger than the average age of presenters of papers, while the average quality appeared as high or higher. What hypotheses might we formulate to explain that distribution?

That was all for Day 1. I’ll write about Day 2, which included a contracts, international law, and legal education sessions,  in a second post.

 

*At some point, I’ll provide a top ten list.  I’m taking nominations.  If it has federal court in the title, you are going to have to convince me.

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CELS 2013: Up Close and Personal.

This weekend is CELS VIII, to be held at Penn Law.  As our readers know, it’s my practice to provide a summary of the conference – or at least those bits I attend. (See here for CELS VII and links to 3-6). This year is no different. You can find the program and papers up on a very, very cool looking webpage here. I intend to go to everything, including the talk by Bill James.  Who I hope will spend his time talking about my extensive writings on the interaction of sabermetrics and ELS.  But who likely will talk about how the Red Sox are awesome and the Phillies are not.

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GW Law’s C-LEAF Jr. Faculty Workshop

The Center for Law, Economics & Finance (C-LEAF) at The George Washington University Law School is pleased to announce its fourth annual Junior Faculty Business and Financial Law Workshop and Junior Faculty Scholarship Prizes.  The Workshop and Prizes are sponsored by Schulte Roth & Zabel LLP. The Workshop will be held on February 7-8, 2014 at GW Law School in Washington, DC.

 The Workshop supports and recognizes the work of young legal scholars in accounting, banking, bankruptcy, corporations, economics, finance and securities, while promoting interaction among them and selected senior faculty and practitioners. By providing a forum for the exchange of creative ideas in these areas, C-LEAF also aims to encourage new and innovative scholarship.

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

At the conclusion of the Workshop, three papers will be selected to receive Junior Faculty Scholarship Prizes of $3,000, $2,000, and $1,000, respectively.  All prize winners will be invited to become Fellows of C-LEAF.* C-LEAF makes no publication commitment, but chosen papers will be featured on its website as part of the C-LEAF Working Paper series. Read More

Call for Papers: AALS Defamation and Privacy Section

The AALS Section on Defamation and Privacy invites papers for its program on “Children’s Privacy Rights Against their Parents” for the Annual Meeting, to be held on January 2-5, 2014 in New York.

Topic Description: Electronic surveillance technology and social media have significantly changed childhood in the Twenty-First Century. The digitization and electronic monitoring of children have altered the parent-child relationship and have significant ramifications for children’s privacy. At the same time, privacy scholars’ discussion of children’s privacy has focused mainly on the privacy of children from third parties, such as companies that collect personal information on the Internet. Similarly, family law scholars have paid little attention to children’s privacy, limiting the discussion to medical decision-making, and particularly abortion decisions. Yet, few have explored whether children have a general right to privacy against their parents.

The panel will explore areas of tension involving privacy rights of children against their parents. Panelists will address, among other issues, the impact of parental electronic surveillance online and offline, such as GPS monitoring and use of software to monitor online surfing. It will also explore potential parental privacy threatening activities online, such as posting information on children on Facebook or intervening in the creation of a child online persona.
Read More

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Scene from the AALS New Law Teacher’s Conference

Thanks to everyone at AALS for an enlightening and inspiring conference. This year’s version was held at the Mayflower Hotel. Yes, that Mayflower Hotel. Which makes the following sign rather curious:

Mayflower

Given the Spitzer tie, this might be a delicious coincidence. Or else someone has a subversive sense of humor. (I miss living in D.C., the best place I have ever lived for nerd humor like this!)

Responses from conference attendees were divided, so I’ll throw it open to the CoOp readership. Is this sign (intentionally) a joke?

 

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LSA Retro-Recap Days 2-3: Leisure, Law & Econ, and Liberalism

Day 2 of the conference saw a spirited panel (featuring Scott Shaprio, Ken Ehrenberg, Michael Guidice, and Brian Tamanaha) about the (ir)reconcilability of legal anthropology and sociolegal studies with analytic jurisprudence. Much of the discussion (not to mention the spirit) here concerned the appropriate definition of a “concept.” If that kind of question does not induce somnolence for you, then read on! Read More

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LSA Retro-Recap Day 1: Two Papers on Punishment Theory and Practice

I saw a lot of interesting presentations and met many interesting folks on Day 1. I note a spirited (and sparsely attended) panel on Corey Brettschneider’s When the State Speaks, What Should it Say? that, for some inexplicable reason, was held 8:15 am.

Here are two projects to keep an eye on. Both have extremely high VOSFOTWOAS. Read More

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LSA Retro-Recap Day 0: Introducing VOSFOTWOAS

Greetings from (a plane on the way home from) Boston! In the past I really enjoyed Dave’s recap of CELS. I thought I’d carry things on with this retro diary (h/t Bill Simmons) of the Law and Society Association meeting.

Before getting to the presentations, here’s a post with some general thoughts on LSA. Like many of the most enjoyable things in life, this conference is a beautiful mess. Fully developed research programs are mashed together with provocative conjectures. Paradigm-shifting ideas comingle with stuff that would get a “good effort” if presented as an undergraduate term paper. How can you determine the formers from the latters? Read More