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Category: General Law

9

Markel on Civility

Over at Prawfs, Dan Markel has a interesting post up on the ethics (and civility) of scholarship. Here’s a taste:

Anytime I’m tempted to write out of rage that someone’s argument is hopelessly misguided or fabulously wrong, I try to remember how much I cringe when my own work is criticized. I drop adverbs and instead use locutions such as the claims advanced in the article “seem mistaken or inaccurate” for the following reasons… This helps focus on, what Michael Walzer wisely described, the task of “getting the arguments right.” It’s not about making anyone look foolish or wicked.

To which Ethan Leib responds, in the comments:

Oh, I don’t know. This all seems a bit prissy. What great theorist hasn’t taken some liberties with broadstroking a school of thought? Doesn’t this ethic of careful citation and naming names (isn’t that a lot like dropping names?) just give the bluebook monkeys more to bother us about?

This emerging debate reminds me a bit of Brian Leiter’s incivility discussion three years back. I think Dan’s ethical principles are grappling with one of the central problems of being a scholar, which cycles to and from prominence in academic circles.

Surely, Dan’s goals are good ones. But, I think, they tradeoff against another goal we all want, which is to get our ideas across clearly. It is hard to write well. It gets harder when your writing is stripped of tone, weighted down by picayune citation, and qualified up the wazoo by a five-, seven-, or nine-level journal editing process. I’m sure Dan doesn’t mean that we should sacrifice clarity for civility, but I think the tradeoff is usually present.

Dan’s other claim is, essentially, that we should never think that scholars we disagree with are evil-minded. This, too, is a hard problem. Scholarship is a grind – often rewarding, always challenging, usually lonely – but always hard work. For me, imagining myself in a battle against wrongdoers (or, better, wrong-thinkers) is the best way to motivate to get out of bed in the morning and write. Cf. Why I Write (Prawfs ’05).

More significantly, the unique conceit of legal scholarship (among the humanities) is that it directly affects the lives of millions of people. Since I intend for my work to better those millions of lives, and I think my arguments are correct, I have to assume that people I disagree with on fundamental issues either are wrong about the results of their policies in the real world, don’t care about their fellow citizens (more precisely, care about ideas as intellectual games), or are simply nasty folks. [Update, I've reordered these possibilities to reflect my view of their likelihood, with a heavy weighting toward the first] In any event, civility and collegiality seem less important to me than being satisfied, in my mind, that I’ve gotten the arguments right and demonstrated to the reader how I arrived at them. Proper and generous citation will generally out foolishness. As Ethan points out, “It’s an adversary process out there.”

11

Science vs. Free Will: Maybe Eating All That Holiday Food Wasn’t Your Choice

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The Economist reports that some aspects of neuroscience indicate that certain notions of when we exercise free will may be on the ropes. The article notes the case of someone who was a pedophile only when a tumor was present. When the tumor was removed the behavior ceased, but when it grew again, the behavior returned. The article focuses on the idea that much of criminal law (“the criminal law—in the West, at least—is based on the idea that the criminal exercised a choice: no choice, no criminal.”) and theories of the market (“Markets also depend on the idea that personal choice is free choice.”) rest on the idea of free will. According to the article one implication of these discoveries is “The British government[’s move] to change the law in order to lock up people with personality disorders that are thought to make them likely to commit crimes, before any crime is committed.” And for the market notions about our choices regarding consuming “Fatty, sugary foods … addictive drugs such as nicotine, alcohol and cocaine [and] [p]ornography” may be suspect as well.

I think the article is correct when it offers

Science is not yet threatening free will’s existence: for the moment there seems little prospect of anybody being able to answer definitively the question of whether it really exists or not. But science will shrink the space in which free will can operate by slowly exposing the mechanism of decision making.

Nonetheless as science continues to chart better how we think and behave, the way the law addresses certain issues will necessarily be challenged. For example Rebecca Tushnet presented a paper examining decision-making and dilution doctrine at a recent works-in-progress conference. The paper raises some great points and questions about assumptions in the doctrine and what research supports or undercuts those views. (In deference to Rebecca I offer this quote from her regarding the paper “I’ll just ask that people recognize this as a draft, and if you want to cite or quote it, please just be willing to update the reference if and when it’s published.”)

I am sure others are pursuing analagous research so if readers have other examples of law and neuroscience, please share them. Then again if all of you simply want to kick back, relax, and run to left-over “Fatty, sugary foods,” I understand. You can’t help it. You have no choice. In fact I think I hear my something in my pantry calling and must go now.

1

Floyd Landis and A New Wrinkle on the Court of Public Opinion

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Some of you may recall that Floyd Landis is fighting allegations by the U.S. Anti-Doping Agency and World Anti-Doping Agency that Landis used testosterone to win the Tour de France. Today’s L.A. Times has an article about the fight and of possible note to this readership the way in which Landis is challenging the process. Landis has posted 370 pages of documents including the lab reports related to the dispute. According the Times, “The result is a vigorous debate on Internet message forums and bulletin boards about the science underlying the charge and whether Landis … has been unjustly accused.” Even more interesting “Landis’ representatives say they have gleaned a wealth of clues about how to attack the evidence when the case goes before an arbitration panel.”

The approach is being called the wiki defense.

Landis’s move seems to accomplish at least two things: 1) He is forcing an otherwise closed process into the open and 2) He is tapping into a large pool of knowledge including experts in the field to challenge the claims.

If this approach works, perhaps the court of public opinion will enter a new phase where defendants use technology to reach a larger audience to plead their case (and I suppose possibly taint juror pools though this instance is an arbitration) and where perhaps better science and analysis will come to bear on cases. My guess is that those who see this as a total revolution in how cases will operate will overstate its impact. Nonetheless, I wonder what would have happened in the O.J. or Kobe cases if there were a wiki where evidence was available to the public. If the material online were already in the public record and then posted online, it may simply be a further aspect of television broadcasts of trials. Yet, if one were a poor defendant or under-resourced public defender and could use the Web to access scientific and/or legal defense knowledge similar to what O.J. or Kobe could afford that could be quite an interesting development for the defense bar.

13

Possible Empirical Support for Corporate Social Responsibility: What Would Uncle Milty Say?

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Milton Friedman is famous (or infamous depending on to whom you talk) for many things including the position he takes in The Social Responsibility of Business is to Increase its Profits. In that article he asserts that corporate social responsibility is

a “fundamentally subversive doctrine” in a free society, and [] that in such a society, “there is one and only one social responsibility of business–to use it resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud.”

Yet along comes McKinsey & Co., not exactly a bastion of socialism, and asserts “The case for incorporating an awareness of social and political trends into corporate strategy has become overwhelming.” (the full article is available only to subscribers, sorry). McKinsey conducted a survey that found “Eighty-four percent of the executives from around the world who participated in a McKinsey survey agreed that their companies should pursue not only shareholder value but also broader contributions to the public good.” Could it be that these executives wish to offer, in Friedman ’s words, “hypocritical window-dressing” because “our institutions, and the attitudes of the public make it in their self-interest to cloak their actions in this way”? Or are the executives simply acting in congruence with Freidman’s observation that that it may be in a corporation’s interest “to generate goodwill as a by-product of expenditures that are entirely justified in its own self-interest.”

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6

Suggestions Please: Gifts for Those Who Read (And Maybe Those Who Just Pretend)

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A recent article from the Wall Street Journal Online details gifts for those seeking “High I.Q. Décor.” Apparently people buy skulls (for that Hamlet moment we all have sooner or later I guess) or books by the foot. Yes, you read that correctly: books by the foot a.k.a. “insta-libraries”:

sales of insta-libraries, including editions in French and German, are up 140% this year. “I’m not sure if those folks knew how to read those languages,” says Ms. Wyden [a specialist in books by the foot] of some recent customers. Prices range from contemporary fiction for $50 a foot to leather-bound classics for $400 a foot. … [One client] include[s] private-equity king (and board member of the New York Public Library) Stephen Schwarzman and his wife, Christine, who Ms. Wyden says spent $200,000 on books for their Park Avenue triplex, including pastel-colored books for a bedroom antechamber and movie-reference works and academic books for the family room. Through his spokesman, Mr. Schwarzman declined to comment.

The last part of the quote reminds me of scenes in Hannah and Her Sister’s and The Moderns where artist characters must face buyers interested in how much wall space will be covered by a canvas or whether the art matches blue walls. In a further moment of irony the article notes “Not everyone approves of decorating to look brainy. ‘Queer Eye’ interior designer Thom Filicia compares it to wearing eyeglasses without a prescription. ‘It’s creating a façade,’ he says.”

All of which leads to an offer and a request for help. As Christmas approaches and gifts are on the mind I offer a few possible books to buy for those who read or for your own pleasure with gift cards to come. In return I hope that the readership will share the names of books they recommend or books that have received acclaim but may not be so worthwhile.

To start things off I recommend my friend John Scalzi’s book Old Man’s War. It’s a science fiction novel, but I believe those who want to enjoy a good story filled with private military companies and more will like it. Don’t take just my word on this one: Instapundit liked it as did Eugene Volokh and Professor Bainbridge . Not to mention it was was nominated for a Hugo Award and won the Campbell Award for best new writer in science fiction. If you want a more recent book of John’s try The Android’s Dream.

For those interested in intellectual history John Gribbin’s In Search of Schrödinger’s Cat and Schrödinger’s Kittens and the Search for Reality are both great reads (although I should warn that quantum theory can be most unsettling to one’s view of reality). In addition, I have just started James Landale’s The Last Duel (in part because of confusion about a similar book Kaimi mentioned to me) and have enjoyed the interplay between the specific story of the duel in question and the history of dueling in general.

Last I suggest two all-time favorites: Haruki Murakami’s The Elephant Vanishes and Mark Helprin’s A Winter’s Tale . Both writers pay close attention to the use of language such that I believe anyone who enjoy’s excellent writing will enjoy them on that score alone. I can also say that each time I have given a copy of either book to someone they have enjoyed it, but Helprin’s work is a bit more accessible, and at least two friends have said they could not stop reading A Winter’s Tale once they began reading it.

5

Civil Procedure to the Rescue: Suing the Big Guys

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The NY Times has a small entry about a frequent problem: lack of customer support for a computer (scroll down to “You Got Served” to read the entry). In this case, the customer apparently tried to use Dell Computer’s customer service resources for five months including 19 phone calls. When those attempts failed to result in a fixed or new computer, he sued Dell. The catch: he provided service of the lawsuit via a kiosk in a mall. Dell failed to appear, and the customer won a default judgment of $3,000.

2

Skinny Law: Fashion Industry May Regulate Weight of Models

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In September, The Spanish Association of Fashion Designers moved to ban the use of models who had a Body Mass Index (BMI) of less than 18 (note that the UN apparently suggests a BMI of between 18.5 and 25). Brazil’s fashion industry recently required that models be at least 16 and in good health. The Brazilian move came in part as a response to the death of Ana Carolina Reston who was 21 when she died of anorexia. Italy’s fashion industry is now moving to impose similar regulations. The move comes after the Italian industry’s lobbyist met with the government’s Youth Minister. It is a voluntary regulation imposed by the industry on itself. An aide to the Youth Minister indicated she favored a ban based on low BMI and said “In the Third World, if someone has an index of less than 18.5, they send in humanitarian aide.” Does this mean that similar to boxing, models will try to make weight before they can be on a catwalk (though models would I suppose gain to make weight)?

The article also noted “There are calls for a return to the slim but more curvaceous models of the 1980s, like Cindy Crawford and Claudia Schiffer.” This sentence seems to lend itself to further issues regarding the fashion industry, health, and personal image. One can imagine unhealthy skinniness and cosmetically enhanced body parts to meet this new criteria. Still for an industry often touted as being shallow and as offering inane notions of beauty, the move to address a real problem is fascinating and may even lead to more changes. I am not going to hold my breath on that last part, but one can hope.

6

Copyright as Protecting a Business Model

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Apparently a cell phone company is suing to have the U.S. Copyright Office reverse a ruling that allowed people who buy cell phones to disable the software lock on the phone so that the phone could be used with other carriers. The company is called Tracfone. Many have noted that the DMCA goes well beyond classic copyright protection. I think that in some ways one could argue that as opposed to the government providing a system of incentives with all the attendant issues of intangible and nonrivalrous goods, this case shows that industries are using copyright law to protect business models not expressive works. At least one other person has said as much. The software at issue is a lock. Disabling it simply means one can use the item at issue as one wants. It seems that this sort of use (or abuse according to some) is simply a way to hinder competition and allow otherwise weak business models to survive. Whether one could argue that the changing landscape means that the classic form of the music industry is also a dying business model because of the drop in creation and even to some extent marketing prices, I leave for others to argue. Nonetheless, one could imagine a system that puts more money directly into artists’ hands and where rather than megastars we have a proliferation of more ministars who can actually earn a living as artists and indeed give up their day job. Yet it seems that copyright may have better arguments when capital is the question. If I recall correctly, Benkler (the Wealth of Networks) and Fisher (Promises to Keep), are two people who have delved into these questions and are worth reading. Even if a media industry is capital intensive and we give it copyright laws to protect it, that does not mean we are not subsidizing it, it may just mean that we have made a choice. If so, the question may be when should we subsidize an industry if at all?

In any event Tracfone’s complaint is here. Counts five and six cover the circumvention issues. The reply of the Wireless Alliance (with an assist by Stanford’s Cyberlaw Clinic) is here. It seems to be a part of what lead to the exemption that Tracfone is now opposing.

1

More on Santa, Beer, and Giving In General

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So I was about to post about Santa’s Butt Winter Porter but students interrupted and Heidi beat me to it. I too would love to know what people think about her questions so thanks Heidi for framing them. (By the way the Shelton Brothers had a similar fight over the label to the right in Connecticut and the state dropped its opposition).

Moving on, in the spirit of Christmas two recent articles seem worth mentioning. First it appears that a man in Kansas City is a true Secret Santa. He has given out more than $1.3 million. The man started from practically nothing and lived in his car for awhile. He made millions on telecommunications but began his giving in 1979 before he made his fortune and in fact right after he was fired from a job. Recently he found out that he has cancer that has spread and receives expensive treatment to fight it. His response to this turn of events has been to train others to carry on his tradition. The Web site is here.

In a mildly similar vein, The Timesonline reports that the producers of the film The Constant Gardner have established a charitable trust of 100,000 pounds to help the remote regions where the film was shot. The trust is not shutting down anytime soon and apparently “consult[s] elders about the practical needs of their communities” as it decides on infrastructure. In addition the producers of the King of Scotland, a film about Idi Amin, the former ruler of Uganda, are considering establishing a trust in Uganda.

0

Semi-Secret: How U.S Intelligence Agencies Share Information

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The New York Times Magazine has an article called “Open Source Spying” that is worth a read. In short, the intelligence community has started to use blogs and wikis to enhance their work. The article sums up, “The premise of spy-blogging is that a million connected amateurs will always be smarter than a few experts collected in an elite star chamber.” One person involved with the project noted something that has drawn my interest of late: the nature of secret information may have changed. He observes that previously the intelligence game revolved around high cost acquisition of information and retaining it in secret on the premise that the more secret and secure it was, the more future valuable information one would acquire “But that’s now appropriate for a small and shrinking percentage of information.” Enter blogs and wikis and what might be called the world of semi-secrets.

The article details the way in which some members of the intelligence community used public blogs to get the fastest information on the Orange Revolution in the Ukraine as an example of the power of the Internet as an information tool. But that point is probably not so surprising. The most interesting part of the article details the way in which the intelligence community apparently uses private wikis and blogs to cure information gaps. The previous system that kept walls between agencies and that was blamed for a lack of understanding regarding the 9/11 attacks was only part of the problem. Even within an agency, reports or ideas could die on a desk because of hierarchy. To address these problems the intelligence world is using some link methodology a la Google and launching Intellipedia, “a wiki that any intelligence employee with classified clearance could read and contribute to,” and given birth to what I am calling the world of semi-secrets. In other words even in a partially closed system, the advantages of open information flow are being embraced such that what might have been a closely held secret is more valuable as a shared or semi-secret. Here’s one compelling tidbit on how the intelligence community has seen success with a more open approach to information:

Intellipedia proved itself just a couple of months ago, when a small two-seater plane crashed into a Manhattan building. An analyst created a page within 20 minutes, and over the next two hours it was edited 80 times by employees of nine different spy agencies, as news trickled out. Together, they rapidly concluded the crash was not a terrorist act. “In the intelligence community, there are so many ‘Stay off the grass’ signs,” Rasmussen [a knowledge engineer at the National Geospatial-Intelligence Agency who contributes to the project daily] said. “But here, you’re free to do what you want, and it works.”

The article notes that wikis are prone to error but this one does not allow anonymous posting so credibility is on the line as a potential control. But wait. Don’t order yet. A blog is running as well.

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