Category: General Law


Female Genital [fill in the blank]

The debate over Female Genital Mutilation/Cutting (an earlier round of which was blogged about here by Sarah Waldeck), continues at Teirneylab. I won’t recount all the arguments and evidence on both sides. Instead, I want to ask a legal question: How should evidence of FGM/C weigh in a custody hearing? Should evidence that a immigrant mother has had her daughter ritually cut support an inference of poor parenting? What if the mother hasn’t yet cut the child, but plans to in the future (perhaps by returning to her country of origin)? Is the inference obvious, or does it depend on context? Were an adverse party to raise the issue against your client in a custody case, what would you do?

As you think about your answer, also ponder the role that cultural cognition might play in resolving this kind of legal question. Cultural cognition refers to the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities. I, for example, find myself interrogating studies showing that women who undergo FGM/C are no less likely to have fulfilling sexual lives and pleasurable sexual experiences far more intensely and critically than I do those that suggest the rituals produce long-lasting trauma. I am not in a position to evaluate the primary evidence myself and, when I reflect on my own reactions, I’m not a neutral evaluator of the secondary evidence. Can we expect a judge or social worker to be immune to the same cognitive biases?

Here’s another question to close the loop: Apparently I think that FGM/C is harmful, at least in part, because I think it is base — but I also think it is base because I think it is harmful! And if I (admittedly) can’t trust my intuitive assessment that it is really harmful, can I trust my normative evaluation of the practice as wrong?

Read More


Grimmelmann — Lawyers, Blogs, and Money

James Grimmelmann has an interesting post about the problems that (might) arise when legal scholars mix blogging with money. Curious what all of you think of this point: “Perhaps no posts have suffered from sponsorship, but it’s in the nature of such conflicts of interest that I might never see the damage. Indeed, the damage can take place without anyone at all being consciously aware of it.” I’ve had informal conversations with legal bloggers (not of this blog) where generating money for the time they put in was a significant (which is not to say the primary) issue that they paid attention to. Again, though, again, it wasn’t clear whether this was, on net, a bad thing. Anyway, this whole post is just an excuse to get you to click this link — just be sure to let them know I sent you!

UPDATE: Jon Garfunkel rightly calls my attention to the fact that Frank Pasquale responded to James over at the laboratorium.


Steven Pinker channels Mary Douglas

Steven Pinker has an interesting article in the New York Times that lines up nicely with recent research into cultural cognition and develops (unwittingly) the ground-breaking work of Mary Douglas. Leaving aside the (minor and entirely unnecessary) bits about Chomsky, evolution, and biology, the piece comes down to a broad-ranging discussion of the ways that people tend to be sensitive to clusters of moral concerns.  He talks in particular about widespread values like harm-avoidance, fairness, community, authority and purity.  Part of what is nice about the Pinker discussion is his acknowledgment that these values are almost always contingent on culture — it’s culture that determines what is perceived as harmful, what is fair, who one’s community is, when (and what forms of) authority should be respected, and what makes something pure, what contaminated. 

This is precisely the point that anthropologists have long been making and, were Pinker an anthropologist his not mentioning Douglas would be unforgivable. But Pinker makes and effort and does draw on a number of recent anthropological studies to make his points. He also notes that the content of these values not only vary across communities, but change over time (smoking becomes impure, homophobia becomes unfair, and so on). If this is the sort of thing that floats your boat, then I’ll point you to a study by Dan Kahan, James Grimmelmann, and your truly that goes one step further, suggesting how these shifts occur and why they occur in recognizable patterns.  And if you want to read from one of the giants on whose shoulders Pinker and the rest of us value-scholars stand, have a look at two Mary Douglas classics: Purity and Danger and (with political scientist Aaron Wildavsky) Risk and Culture. We miss you Mary!


Whose Eyes in Scott v. Harris? KHB Reply

Over on Volokh Conspiracy, Orin Kerr has posted a thoughtful and fair-minded response to our study of public interpretations of the Scott v. Harris video (previously blogged on Concurring Opinions here and here). Orin generously credits our empirical study with succeeding in making the “broad point [that we] want to make,” and that he says he himself “completely” accepts: that “videos can be construed in different ways,” that “it’s too easy for [people] to look at a video and see what [they] want to see,” and that as a result “[w]e”—presumably, including judges—“need to step outside of our preconceptions and be aware of how other people might construe the facts” revealed in such a medium. Nevertheless, Orin suggests that our study suffers from a “significant methodological error” because the study “ended up asking the survey respondents to apply the standards the authors suggested instead of the test the Supreme Court used.”

To keep the debate going, we’ll make three points to make in response:

1. We did ask the subjects to address, in a plain and straightforward way, the key factual predicate of the Court’s decision.

Using various, diverse formulations, Justice Scalia emphasized over and over that summary judgment was warranted because the tape revealed that Harris’s driving posed a high degree of risk—more certainly, than is present whenever one happens to drive a car at a high speed down the highway—to the lives of others. See, e.g., 127 S. Ct. at 1775-76 (“the video . . . closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury”); id. at 1778 (“it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians …,  to other civilian motorists, and the other officers”); id. at 1779 (“The car chase that respondent initiated in this case posed a substantial and immediate risk of physical injury to others; no reasonable jury could conclude otherwise”). In contrast, Justice Stevens, in dissent, repeatedly stated that he didn’t perceive such a risk. See id. at 1783 (“passing a slower vehicle on a two-lane road always involves some degree of swerving and is not especially dangerous if there are no cars coming from the opposite direction”); id. (“This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.’ ”). 

As Orin notes, we asked our subjects to pick sides in this dispute by indicating their level of agreement or disagreement with two propositions: that “Harris drove in a manner thatput members of the public at great risk of death,” and that he “drove in a manner thatput the police at great risk of death.” Orin says he objects to “great risk,” even though it’s among the hodge podge of different phrases Scalia himself used. We chose that phrase because it struck us as a characterization of the necessary degree of heightened risk that would be familiar to, and likely understood in uniform ways by, ordinary people. One would have to impute to our subjects fairly strange motivations to twist normal language—to a degree that would make even a sophistic lawyer blush—to worry that those who shared Scalia’s view of the tape would think they should nevertheless report disagreement with him.

Indeed, as Orin observes, the vast majority of subjects, far from being steered away from Scalia’s position by this question wording, did report agreement with him on this point. Contrary to how Orin summarizes our position, then, we don’t mean to criticize the Court for “privileging a conservative white male view of the case.” Rather we take up the more subtle normative issue of whether, in a summary judgment setting, courts should ever send a case to a jury in order to assure that the majority considers the factual perceptions of an admitted minority, whose members nevertheless share a common set of identifying characteristics, experiences, and values.

Read More


On Nobel Prizes, Primaries, and Decision Theory

likeIke.jpgThe Washington Post has a nice little column today on the basic silliness of the presidential primary system. Sebastian Mallaby writes:

Just like badly designed auctions, the primaries encourage “strategic” behavior that conceals true preferences. Some Democratic voters who preferred Bill Richardson may have chosen not to reveal that, figuring that a vote for him would be wasted. Some independent voters may have preferred Obama yet voted instead in the Republican contest for John McCain, believing that Obama would win the Democratic contest without their assistance. If voters don’t reveal their true preferences, it’s hard to reconcile them successfully.

What elections ought to do is discover which candidate would beat each of the other candidates in head-to-head matchups. Eric Maskin, one of last year’s Nobel laureates for mechanism design, will suggest how a better system could do that in a lecture Thursday at Georgetown University. Maskin’s argument is that voters should list candidates in order of preference, so we wouldn’t have to guess whether Clinton would have beaten Obama in a two-person contest. If a majority of voters for Edwards, Richardson and the other also-rans put Clinton higher on their lists than Obama, she would win the contest under Maskin’s system. But if Obama ranked higher than Clinton on a majority of voters’ lists, then he would win. After all, most people would have preferred him.

Of course, my understanding is that the hideously complicated rules governing the Democratic caucuses in Iowa work on something like this system. (Although I am happy to be corrected by those who actually know something about Iowa.) According to the column:

Instead of this common-sensical system, we have a farce: On the basis of a three-point margin over Obama that tells us little about which of the two candidates voters actually preferred, Clinton has transformed her prospects.

The odd thing, of course, is that if one looks at the delegate count rather than at who “won” this or that state, then the results are far less clear cut as “losers” still get a lot of delegates. To be sure, folks still vote strategically but not as strategically as they might in a winner take all election. On the other hand, the implicit assumption of Mallaby’s argument is surely correct. The real purpose of the primaries is no longer the picking of delegates. Rather they simply serve as the focal point of a national contest carried out in the media rather than the political conventions. The real question, of course, is whether Maskin’s system would increase or decrease the number of people wearing silly political memorabilia.

[Image credit: Wikicommons]

Multimillionaire Relief

Rick Hasen reports that the Supreme Court has agreed to consider the constitutionality of the “Millionaire’s Amendment’ in the Bipartisan Campaign Finance Reform Act. Here’s Hasen’s rundown:

Roughly speaking, this provision requires self funded candidates for the Senate or House to report their expenditures. When the expenditures exceed a certain amount, the opponent(s) of the self-financed candidate can accept contributions from individuals in an amount triple the individual contribution limit (now at $2,300 per person), even from people who have maxed out their federal contributions for the year. The opponent can also get more coordinated spending with his or her political party. [The appellant] essentially argues that the Millionaire’s Amendment is unconstitutional because it creates an additional burden on him (a series of disclosures of spending in a short time frame) and is not justified by any accepted government interest.

Prospectively, I think this is a Court that’s going to make extant campaign finance regulation meaningless within a decade. Hasen’s insightful and well-written article Beyond Incoherence provides some reasons for my suspicions here. Those who care about a level electoral playing field are probably going to have to round up money for public financing, and move beyond traditional forms of regulation increasingly challenged by an activist base of the politically involved.

Read More


Are Tax Cuts Inspirational?

Rudy Giuliani has issued a new television ad, in which he promises, with stirring – perhaps almost inspirational – music in the background, to cut taxes. No, not simply to cut taxes, but to cut them by “trillions of dollars.” “[O]n his first day in office,” in fact, he “will send Congress the largest tax cut in American history.” For all the dramatic music, the bold words “trillions of dollars” on the screen, and Giuliani’s obvious excitement about the possibility, however, I was somehow left unmoved.

Perhaps that isn’t especially surprising, given my general attitudes about society’s obligations to open doors of opportunity for those without opportunities, and to support those of its members in need. But do those who disagree with me actually respond differently to a promise to introduce “the largest tax cut in American history”? Does introducing such a tax represent a stirring moment in American history? Will American elementary school students one day study Washington’s refusal to stand for another term, Lincoln’s Gettysburg’s Address, Roosevelt’s address to Congress following Pearl Harbor, and Giuliani’s massive tax cut?

More seriously, it’s hard to imagine that the inspirational quality of tax cuts is about (the possibility of) a higher growth rate in the economy. Significant as the latter is, I don’t see many folks crying about it. Is it just about having more money in one’s pocket on April 16th? Surely some, with desperate needs, might find such savings to be intensely felt. But just as surely, everyone knows by now that tax cuts in the “trillions of dollars” aren’t about those with such desperate needs.

It’s possible, I suppose, that “tax cuts” are today a kind of short hand for individual freedom and liberty. They’re what Tom Paine would talking about, if he were alive today and trying to get people excited about his notions of governing best by governing least. But can tax cuts really stand in as an effective rhetorical substitute for freedom and liberty? Wouldn’t Giuliani do better to tell us exactly why “the largest tax cut in American history” would be so exciting?


Praise for Lessig and Free Culture

freeculture.JPGMany who follow technology and intellectual property know Larry Lessig’s work. His work has even inspired odd Austrians to compose odes to him. His books have already become touchstones for those fighting in the copyright wars. Nonetheless, one part of Lessig’s work, Free Culture, deserves special notice. (the link takes one to, of course, a free version of the book). It is the part about the Eldred case. For in it Lessig offers a humble and inspiring account of his work on the case. His retelling of what happened and most importantly of where he may have gone wrong in arguing the case offers a glimpse of someone willing to reflect on his acts and rather than rage against the Court direct his energy into seeing what went wrong. In addition, the tale shows how ideal law theory may not play out in the courts. It shows that sometimes the courts may not be ready for the case. It shows that policy and politics can and do animate decisions. Indeed, Lessig admits that whereas in other contexts he used persuasion regarding the urgency and importance of limited terms for copyright, here he chose to argue the pure Constitutional ideal at stake. Thus even if one is not interested in intellectual property law, take a read of the chapter on Eldred. It is an impressive lesson in litigation and policy advocacy taught by a brilliant instructor. If he could err in this way, so could anyone. So read it, appreciate it, and learn from it.

cross-posted at Madisonian


More on Proposed ABA Interpretation 301-6

As I wrote here, the ABA and the law schools are disputing about a proposed standard that would link accreditation more tightly to state bar passage rates. Since that original post, Gary Rosin (whose work I highlighted) has continued to pump out empirically informed discussions of the 301-6’s likely effects. For those who are interested in this topic, the place to go is this SSRN link, where Gary has collected his submissions to the ABA, including one posted on December 31. The battle clearly continues.


Bottled Water Crisis

bottledwater.jpg Well, it finally happened. After years of tremendous marketing, bottled water is taking a hit. Drinking bottled water is being equated with smoking cigarettes and drinking alcohol as an undesirable social activity. Chicago is the first major city to levy a sin tax on each bottle of water sold within city limits. Starting yesterday Chicago will charge a 5-cent tax on each bottle of water sold. Officials predict the tax will yield $10.5 million annually.

The Daily Green lists the seven sins of bottled water:

1. Plastic bottles are made from petroleum.

2. The bottles often go into the trash, rather than the recycle bin (in part because many states don’t offer five-cent deposits to encourage recycling, as they do on soda and beer cans and bottles).

3. The water is pumped far from where it is sold, creating needless pollution as trucks and barges transport it across the country or around the world.

4. Some local communities have objected to the sale of their water, arguing that the water underground or flowing from natural springs is publicly owned and should not be exploited for profit.

5. Bottled water is rarely as closely monitored as tap water.

6. Tap water in the United States, when provided by a municipal system, is the most highly monitored and safe supply in the world.

7. Some of the water sold in little plastic bottles is tap water, but it costs an awful lot more per gallon.

Read More