Every lawsuit is a potential drama: a story of conflict, often with victims and villains, leading to justice done or denied. Yet a great deal, if not all, that we learn about the most noteworthy of lawsuits — the truly great cases — comes from reading the opinion of an appellate court, written by a judge who never saw the parties of the case, who worked at a time and a place far removed from the [...]]]> Paul A. Lombardo published an essay “Legal Archaeology: Recovering the Stories behind the Cases” in the Fall 2008 issue of the Journal of Law, Medicine, and Ethics.  It reminded me of the wonderful chapters in this volume of “health law stories.”  Here are some excerpts that may be of interest: 

 Every lawsuit is a potential drama: a story of conflict, often with victims and villains, leading to justice done or denied. Yet a great deal, if not all, that we learn about the most noteworthy of lawsuits — the truly great cases — comes from reading the opinion of an appellate court, written by a judge who never saw the parties of the case, who worked at a time and a place far removed from the events that gave rise to litigation.

Rarely do we admit that the official factual account contained in an appellate opinion may have only the most tenuous relationship to the events that actually led the parties to court. The complex stories — turning on small facts, seemingly trivial circumstances, and inter-contingent events — fade away as the “case” takes on a life of its own as it leaves the court of appeals.

How can a law professor correct this bias?  Here are some of Lombardo’s suggestions: 

The best starting point for doing legal archaeology is the case record itself. We all begin our investigation of cases by reading an appellate opinion. With some extra effort, we can retrieve the records and briefs that the judges relied on as they wrote that opinion. Of course, the case record that is printed for submission to an appellate tribunal will include only a small portion of the documents that make up the lawsuit’s paper trail.

Much of the material contained in the case record is now filed electronically, and for recent cases, may be available on the Web. But even for most pre-Internet cases, finding the proper repository for all these records is not difficult. A visit to your school’s reference librarian with copies of the articles referenced here should get you started.

Lombardo also suggests consulting newspapers and magazines, professional journals, and material generated by the parties and their lawyers.  Though some students may complain of “reading overload,” skillful editing can make the effort to contextualize the cases well worth everyone’s while.  I also anticipate that internet archives of particular helpful case studies will accumulate over time.

Selected References from Lombardo:

P. Brooks and P. Gewirtz, eds., Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1997).

J. L. Maute, “The Value of Legal Archaeology,” Utah Law Review 2000, no. 2 (2000).

D. L. Threedy, “Legal Archaeology: Excavating Cases, Reconstructing Context,” Tulane Law Review 80, no. 4 (2006)

C. Geertz, “Thick Description: Toward an Interpretive Theory of Culture,” in The Interpretation of Cultures: Selected Essays.

X-Posted: Health Law Profs.

One of the toughest parts about working with the type of technologists I focus on— intelligent, opinionated, online a lot of the time—is that many will unabashedly dissect my every word, statement, and media appearance. This attribute of my research, unsurprisingly, has been the source of considerable anxiety, only made worse in recent times with Anonymous as I have to make [...]]]> Inspired by Orin Kerr’s question (“is your work focused on the internal narratives and ideologies that people use to describe/justify what they do, or is it focused externally on the actual conduct of what people do?”) below I will give a sense of how I walk the line between what we might call idealism and practice among the geeks and hackers I study.

One of the toughest parts about working with the type of technologists I focus on— intelligent, opinionated, online a lot of the time—is that many will unabashedly dissect my every word, statement, and media appearance. This attribute of my research, unsurprisingly, has been the source of considerable anxiety, only made worse in recent times with Anonymous as I have to make “authoritative” statements about them in the midst studying them, in other words, in the midst of having incomplete information.

All of this is to say I am deliberate and diplomatic when it comes to word choice, framing, and arguments. But most of the time examining practice in light of or up against idealism does not take the somewhat noxious form of “exposing” secrets, the implication being that people are so mystified and deluded that you, the outsider, are there to inform the world of what is really going on (there is a a long standing tradition in the humanities and social sciences, loosely inspired by Karl Marx and especially Pierre Bourdieu, taking this stance, not my favorite strain of analysis unless done really when needed and very well).

Much of what I do is to unearth those dynamics which may not be natively theorized but are certainly in operation. Take for instance the following example at the nexus of law and politics: during fieldwork it was patently clear that many free software hackers were wholly uninterested in politics outside of software freedom and those aligned with open source explicitly disavowed even this narrowly defined political agenda. Many were also repelled by the law (as one developer put it, “writing an algorithm in legalese should be punished with death…. a horrible one, by preference”) and yet weeks into research it was obvious that many developers are nimble legal thinkers, which helps explain how they have built, in a relatively short time period, a robust alternative body of legal theory and laws. One reason for this facility is that the skills, mental dispositions, and forms of reasoning necessary to read and analyze a formal, rule-based system like the law parallel the operations necessary to code software. Both are logic-oriented, internally consistent textual practices that require great attention to detail. Small mistakes in both law and software—a missing comma in a contract or a missing semicolon in code—can jeopardize the integrity of the system and compromise the intention of the author of the text. Both lawyers and programmers develop mental habits for making, reading, and parsing what are primarily utilitarian texts and this makes a lot of free software hackers, who already must pay attention to the law in light of free software licenses, adept legal thinkers, although of course this does not necessarily mean they would make good lawyers.

One of the the important and often overlooked disjunctures between an ideal and practice concerns the hacker idealization of decentralization/individualism/horizontalism and the fact that many have built stable and intricate organizations. When free software developers (and many other hackers) collectively labor they often do as they idealize: they keep things open-ended, flexible, and decentralized. The love of individualism is also undeniable. But they have also been astoundingly adept builders of stable institutions with forms of vertical authority and in the case of free software were doing so back when the 20^th became the 21^st century, back when the web was in its so-called less mature, web 1.0 “pre-teen” years. But the reality of institution building and social collectivism was rarely addressed by those writing on the topic—although this has thankfully started to change in the last few years. Instead the most common story told about online collaboration is that knowledge, software, etc is being created by forces of mild disorganization whereby individuals, acting in very loose coordination with each other, led to novel forms of collaboration; this vision reaching prominence, I think, for the way it so perfectly meshes with with and thus supports dominant, widespread, (and idealized) understandings of freedom, agency, and individualism. There is no better example of this sentiment than the title of Clay Shirky’s widely read 2006 book Here Comes Everybody: The Power of Organizing Without Organizations. Although many of his observations about digital dynamics are illuminating, and many of the examples he draws on, such as Meetup groups, remain informal, many others he also discusses, such as Wikipedia and Linux, were by 2006, organized, and thus, some type of organization.

The new institutions built by free software developers and other groups (Indymedia was remarkably well organized by 2001) are not the large slumbering bureaucracies most often associated with governments, the post office, or large corporations. Nor do they follow the wisdom of the crowd. In building what are new institutional forms, open source developers often seek to strike a balance between stability and open-ended flexibility and individualism and collectivism. In the process of doing so, many engender particular forms of social value that include mutual aid, transparency, and complex codes for collaboration and other ethical precepts that help guide technical production. In the case of Debian—the largest and perhaps most stunningly of organized of free and open source software projects—its policies, direction, and imperatives are decided by a collective who not only create software but also have innovated, quite successfully, in institution building and much of my work has focused on this side of their practical activity, which is not always part of their ideological repertoire (but sometimes it is).

Anonymous, which so far has steadfastly avoided institution building (not a surprise as it so flies in the face of their ideological commitments and there is not always much coherence there either), presents different sorts of issues and problems when a researcher like myself gauges how and when to reconcile between their idealizations and practice; I have never been accused of suffering Stockholm Syndrome with my work on free software, but this is routinely launched at me due to my work on Anonymous. And probably meaty enough of an accusation to warrant its own post.

Ben’s question suggests that ostensibly rational human beings often act in irrational ways.  To prove his point, I’m actually going to address his enormous question within a blog post.  I hope you judge the effort valiant, if not complete.

The post will offer two perspectives on whether, as the question asks, we could be more rational than we are if certain “neuro-mechanisms” did not function to impair rationality.  The first view is that [...]]]> By unanimous reader demand – all one out of one readers voting, as of last week – this post will explore the small topic of the biological basis of “irrationality,” and its implications for law.  Specifically, Ben Daniels of Collective Conscious asked the fascinating question: “What neuro-mechanisms enforce irrational behavior in a rational animal?”

Ben’s question suggests that ostensibly rational human beings often act in irrational ways.  To prove his point, I’m actually going to address his enormous question within a blog post.  I hope you judge the effort valiant, if not complete.

The post will offer two perspectives on whether, as the question asks, we could be more rational than we are if certain “neuro-mechanisms” did not function to impair rationality.  The first view is that greater rationality might be possible – but might not confer greater benefits.  I call this the “anti-Vulcan hypothesis”:  While our affective capacities might suppress some of our computational power, they are precisely what make us both less than perfectly rational and gloriously human – Captain Kirk, rather than Mr. Spock.  A second, related perspective offered by the field of cultural cognition suggests that developmentally-acquired, neurally-ingrained cultural schemas cause people to evaluate new information not abstractly on its merits but in ways that conform to the norms of their social group.  In what I call the “sheep hypothesis,” cultural cognition theory suggests that our rational faculties often serve merely to rationalize facts in ways that fit our group-typical biases.  Yet, whether we are Kirk or Flossie, the implication for law may be the same:  Understanding how affect and rationality interact can allow legal decision-makers to modify legal institutions to favor the relevant ability, modify legal regimes to account for predictable limitations on rationality, and communicate in ways that privilege social affiliations and affective cues as much as factual information.

First, a slight cavil with the question:  The question suggests that people are “rational animal[s]” but that certain neurological mechanisms suppress rationality – as if our powerful rational engines were somehow constrained by neural cruise-control.  Latent in that question are a factual assumption about how the brain works (more on that later) and a normative inclination to see irrationality as a problem to which rationality is the solution.  Yet, much recent work on the central role of affect in decision-making suggests that, often, the converse may be true.  (Among many others, see Jonathan Haidt and Josh Greene; these links will open PDF articles in a new window.)  Rationality divorced from affect arguably may not even be possible for humans, much less desirable.  Indeed, the whole idea of “pure reason” as either a fact or a goal is taking a beating at the hands of researchers in behavioral economics, cognitive neuroscience, and experimental philosophy – and perhaps other fields as well.

Also, since “rational” can mean a lot of things, I’m going to define it as the ability to calculate which behavior under particular circumstances will yield the greatest short-term utility to the actor.  By this measure, people do irrational things all the time: we discount the future unduly, preferring a dollar today to ten dollars next month; we comically misjudge risk, shying away from the safest form of transportation (flying) in favor of the most dangerous (driving); we punish excessively; and the list goes on.

Despite these persistent and universal defects in rationality, experimental data indicates that our brains have the capacity to be more rational than our behaviors would suggest.  Apparently, certain strong affective responses interfere with activity in particular regions of the prefrontal cortex (pfc); these areas of the pfc are associated with rationality tasks like sequencing, comparing, and computing.  Experiments in which researchers use powerful magnets to temporarily “knock out” activity in limbic (affective) brain regions, the otherwise typical subjects displayed savant-like abilities in spatial, visual, and computational skills.  This experimental result mimics what anecdotally has been reported in people who display savant abilities following brain injury or disease, and in people with autism spectrum disorders, who may have severe social and affective impairments yet also be savants.

So: Some evidence suggests the human brain may have massively more computing power than we can to put to use because of general (and sometimes acute) affective interference.  It may be that social and emotional processing suck up all the bandwidth; or, prosocial faculties may suppress activity in computational regions.  Further, the rational cognition we can access can be totally swamped out by sudden and strong affect.  With a nod to Martha Nussbaum, we might call this the “fragility of rationality.”

This fragility may be more boon than bane:  Rationality may be fragile because, in many situations, leading with affect might confer a survival advantage.  Simple heuristics and “gut” feelings, which are “fast and cheap,” let us respond quickly to complex and potentially dangerous situations.  Another evolutionary argument is that all-important social relationships can be disrupted by rational utility-maximizing behaviors – whether you call them free-riders or defectors.  To prevent humans from mucking up the enormous survival-enhancing benefits of community, selection would favor prosocial neuroendocrine mechanisms that suppress or an individual’s desire to maximize short-term utility.  What’s appealing about this argument is that – if true – it means that that which enables us to be human is precisely that which makes us not purely rational.  This “anti-Vulcan” hypothesis is very much the thrust of the work by Antonio Damasio (and here), Dan Ariely, and Paul Zak, among many other notable scholars.

An arguably darker view of the relationship between prosociality and rationality comes from cultural cognition theory.  While evolutionary psychology and behavioral economics suggest that people have cognitive quirks as to certain kinds of mental tasks, cultural cognition suggests that people’s major beliefs about the state of the world – the issues that self-governance and democracy depend upon – are largely impervious to rationality.  In place of rationality, people quite unconsciously “conform their beliefs about disputed matters of fact … to values that define their cultural identities.”

On this view, people aren’t just bad at understanding risk and temporal discounting, among other things, because our prosocial adaptations suppress it.  Rather, from global warming to gun control, people unconsciously align their assessments of issues to conform to the beliefs and values of their social group.  Rationality operates, if at all, post hoc:  It allows people to construct rationalizations for relatively fact-independent but socially conforming conclusions.  (Note that different cultural groups assign different values to rational forms of thought and inquiry.  In a group that highly prizes those activities, pursuing rationally-informed questioning might itself be culturally conforming.  Children of academics and knowledge-workers: I’m looking at you.)

This reflexive conformity is not a deliberate choice; it’s quite automatic, feels wholly natural, and is resilient against narrowly rational challenges based in facts and data.  And that this cognitive mode inheres in us makes a certain kind of sense:  Most people face far greater immediate danger from defying their social group than from global warming or gun control policy.  The person who strongly or regularly conflicts with their group becomes a sort of socially stateless person, the exiled persona non grata.

To descend from Olympus to the village:  What could this mean for law?  Whether we take the heuristics and biases approach emerging from behavioral economics and evolutionary psychology or the cultural cognition approach emerging from that field, the social and emotional nature of situated cognition cannot be ignored.  I’ll briefly highlight two strategies for “rationalizing” aspects of the legal system to account for our affectively-influenced rationality – one addressing the design of legal institutions and the other addressing how legal and political decisions are communicated to the public.

Oliver Goodenough suggests that research on rational-affective mutual interference should inform how legal institutions are  designed.  Legal institutions may be anywhere on a continuum from physical to metaphorical, from court buildings to court systems, to the structure and concept of the jury, to professional norms and conventions.  The structures of legal institutions influence how people within them engage in decision-making; certain institutional features may prompt people bring to bear their more emotive (empathic), social-cognitive (“sheep”), or purely rational (“Vulcan”) capacities.

Goodenough does not claim that more rationality is always better; in some legal contexts, we might collectively value affect – empathy, mercy.  In another, we might value cultural cognition – as when, for example, a jury in a criminal case must determine whether a defendant’s response to alleged provocation falls within the norms of the community.  And in still other contexts, we might value narrow rationality above all.  Understanding the triggers for our various cognitive modes could help address long-standing legal dilemmas.  Jon Hanson’s work on the highly situated and situational nature of decision-making suggests that the physical and social contexts in which deliberation takes place may be crucial to the answers at which we arrive.

Cultural cognition may offer strategies for communicating with the public about important issues.  The core insight of cultural cognition is that people react to new information not primarily by assessing it in the abstract, on its merits, but by intuiting their community’s likely reaction and conforming to it.  If the primary question a person asks herself is, “What would my community think of this thing?” instead of “What is this thing?”, then very different communication strategies follow:  Facts and information about the thing itself only become meaningful when embedded in information about the thing’s relevance to peoples’ communities.  The cultural cognition project has developed specific recommendations for communication around lawmaking involving gun rights, the death penalty, climate change, and other ostensibly fact-bound but intensely polarizing topics.

To wrap this up by going back to the question: Ben, short of putting every person into a TMS machine that makes us faux-savants by knocking out affective and social functions, we are not going to unleash our latent (narrowly) rational powers.  But it’s worth recalling that the historical, and now unpalatable term, for natural savants used to be “idiot-savant”: This phrase itself suggests that, without robust affective and social intelligence – which may make us “irrational” – we’re not very smart at all.

Economics is not a technique in search of problems but a set of problems in need of solution. Such problems are varied and the solutions will inevitably be eclectic. Such pragmatic thinking requires not just deductive logic but an understanding of the processes of belief formation, of anthropology, psychology and organisational behaviour, and meticulous observation of what people, businesses and governments do.

In this post, [...]]]> It’s becoming clearer that classic Keynesian stimulus—ranging from Obama’s minimalist jobs program to the robust visions of a Krugman or Delong—won’t be enough to get us out of the Great Recession/Lesser Depression. The exhaustion of conventional macroeconomic thought (chronicled in outlets like the Real World Economics Review) has cleared some space for more imaginative thinkers. As John Kay observes:

Economics is not a technique in search of problems but a set of problems in need of solution. Such problems are varied and the solutions will inevitably be eclectic. Such pragmatic thinking requires not just deductive logic but an understanding of the processes of belief formation, of anthropology, psychology and organisational behaviour, and meticulous observation of what people, businesses and governments do.

In this post, I want to briefly highlight Bernard Harcourt’s work in crossing disciplinary boundaries to engage in the synthesis necessary to truly understand our plight.

Consider the following paradoxes or contradictions, which will also be highlighted at a conference that Harcourt is keynoting:

1) Dahlia Lithwick argues that GOP frontrunner Rick Perry “is skeptical of everything the government does—except when it executes people.” (And that privacy is on the rise for companies, but not for individuals.)

2) There is political passion for slashing government, except in criminal and military functions where its effectiveness is highly doubted.

3) Dana Priest and Bill Arkin have uncovered evidence that domestic intelligence agents are closely monitoring Tea Party groups. But the monitoring has stirred very little protest among such groups.

4) Banking law experts tell us that the Volcker Rule is trivial and counterproductive, because it would not have stopped the last crisis. They also tell us that rules that would have stopped the last crisis are trivial and counterproductive, because genius financiers have already cooked up new methods that can’t be touched by those “fighting the last war.”

Harcourt’s work puts all these positions in a larger intellectual perspective, helping us explain (if not forgive) them.

I highlighted Harcourt’s Illusion of Free Markets last year, and I’m pleased to see it reviewed on the History News Network. The reviewer, Eric Laursen, connects Harcourt’s work to current controversies over banking regulation:

Last December, Wall Street’s leading banks were fighting tooth-and-nail to keep federal regulators from setting rules governing the vast market in financial derivatives contracts – the market that helped turn the 2008 mortgage-backed securities meltdown into a global catastrophe. . . . Then an article appeared in the New York Times that seemed to blur the outline of this reform scenario. Titled “A Secretive Banking Elite Rules Derivatives Trading,” the article, by Louise Story, detailed how nine big banks had virtually captured the new regulatory regime before it even got started. One of Dodd-Frank’s provisions called for most derivatives to be traded via clearinghouses, putting buyers and sellers in closer touch with each other and cutting out middlemen.

According to Story, nine big banks, including such familiar names as JP Morgan Chase, Morgan Stanley, Goldman Sachs, and Citigroup, had already checkmated this plan by setting up their own, secretive clearinghouse to trade credit default swaps, and cut a deal with the Chicago Mercantile Exchange that gave them effective control of another new clearinghouse. Result: nine elite banks, operating out of public view, have cemented even tighter control of the derivatives market than they had before. If anything, Dodd-Frank has helped them to do it.

Now comes The Illusion of Free Markets, a dense, groundbreaking book that explains why such things happen: why the supposedly freewheeling capitalists of the post-New Deal decades can get away with operating a tightly controlled system geared primarily to generate profits for a small group of big players. “At the end of the day, the notion of a ‘free market’ is a fiction. There is simply no such thing as an unregulated market.” . . .

Harcourt calls The Illusion of Free Markets a “prolegomenon” – a first step in creating a new analysis that asks who benefits from the supposedly “free” economic system that’s been built to regulate us. The next step, of course, is to figure out what we want instead. By exposing the flawed ideological roots of what’s taken for “expert” social and economic thinking today, Harcourt’s book may help us avoid the pitfalls in getting there.

Harcourt’s work is a sustained reflection on the “two paradoxical tenets” that seem to rule contemporary politics: “of government incompetence when it comes to regulating the economy and government competence when it comes to policing and punishing.” He doesn’t try to separate out either trend as a dependent or independent variable, eschewing the trend toward “clean identification” in social science explanation. Rather, he adopts a more hermeneutical approach, examining how “neoliberal ideas were born — and remain today — joined at the hip with the Big Brother state.”

His recent interview with Scott Horton reveals some of the problems arising out of the elective affinities between neoliberal economics and an increasingly harsh policing regime. President Reagan “tripled the debt, increasing it by $1.9 trillion, and . . . oversaw the prison buildup and the war on drugs.” Bush fils further ballooned the debt, in even more costly foreign wars. Blocking tax increases on the wealthy to pay for these initiatives, they have left middle and lower class citizens more desperate and bereft of services.

That leaves a workforce willing to take any job to stay afloat. And when some scrambling workers use drugs like meth to keep themselves going, that just creates more work for the police apparatus. Can Hungarian-style labor camps for the unemployed be far behind? Forced evictions are also a tool of some multinational corporations, and are objectionable whether accomplished by paid mercenaries or bribed government officials. These trends reveal the invisible hand to be more than a little “iron fist,” even when covered in velvet glove rhetoric of freedom and contract.

Harcourt’s work also connects nicely with James Boyle’s critical work on the rise of intellectual property and the shriveling of antitrust law:

We appear to have a kind of bipolar disorder in our view of the state. When it comes to breaking up high tech monopolies through antitrust, we are deep sceptics. We point out the unanticipated consequences and deadweight losses to state intervention. We say the state is a blundering second or third best to the genius of the market, its efforts to establish limits and quotas will create a mess that even the Invisible Hand cannot sweep clean.

But when it comes to setting up some of those same quotas, limits and monopolies in the first place – in this case, by overly broad intellectual property rights that clog the channels of competition and allow companies to leverage their existing property into a control over tied services – we are much more sanguine. This, after all, is property, not regulation. Here there seems to be an optimism about unintended consequences, a willingness to believe that vague state regulatory schemes have got it right – even when existing market leaders can twist them to prevent challenges to their position.

In one view, the state is a bumbling idiot, in the other a scalpel-wielding genius, carving just the right pound of flesh to satisfy our debts to creators without shedding a drop of the blood of competitors and future innovators. Can this be the same state we are talking about?

Given Harcourt’s work, we should expect trends toward criminal enforcement of IP law to displace government sponsored efforts to subsidize (or compulsorily license) IP. DC elites roll their eyes at the idea of a government using its bargaining power to get a fairer deal for all here, but jump at the chance to police piracy.

Finally, I’m glad to see that Harcourt’s next book may focus on national security. These words from James Madison remind me of Washington’s and Eisenhower’s Farewell Addresses. Even the founding fathers anticipated that a garrison state could become a banana republic:

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare. (“Political Observations” (1795))

And yet “continuous warfare” seems to be the foreign policy consensus. There are ways to channel that martial energy toward better purposes, ranging from William James’s “Moral Equivalent of War” to “Mr. Y’s” ideas about redirecting military expenditures toward projects that truly enhance national security. But, as Harcourt argues, there are also many connections between the growth of DOD and DHS and the cruel, cronified capitalism of leading firm/government combines.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on [...]]]>

Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.

In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness.  Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.

Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society?  That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law.  In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases.  Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication.  The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices  resort to language [...]]]>

Paul Campos thinks I am cemented to the wall of Yale Law School by the blood of a thousand students, murdered by rapacious professors.

Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society?  That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law.  In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases.  Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication.  The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices  resort to language which is untempered by doubt, and which advances empirical support that is said to be conclusive. Like scientists, judges’ empirical messages are read by elites, and thus understood through polarizing filters.  As a result, Justices on the other sides of these fights quickly seek to undermine these purported empirical foundations – - as Justice Scalia argued last term in Plata:

“[It] is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism.”

Kahan resists Scalia’s cynicism — and says that in fact Scalia is making the problem worse.  Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism.  Kahan concludes that Courts ought to show doubt & humility – aporia – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard.  Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers.  Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work.  As Dan Simon and co-authors have found, people are basically likely to consider as legitimate arguments whose outcomes they find congenial.  But when they dislike outcomes, people are better persuaded by arguments that are explicitly two-sided: that is, the form of very muscular rhetoric typical in SCOTUS decisions is likely to be seen, by those who disagree with the Court’s outcomes, are particularly unpersuasive, illegitimate, and biased.

I love this paper — it’s an outgrowth of the cultural cognition project, and it lays the groundwork for some really neat experiments. So the point of the post is partly to encourage you to go read it.  But I wanted to try as well to connect this line of research to the recent “debate” about Law Schools.

Indeed, Paul Campos believes that the way he’s spoken about law school economics is responsible for the negative reaction his colleagues (at Colorado and nationally).

“One thing that has displeased a number of my colleagues throughout the legal academy is what they consider the excessively shrill tone of some of my posts, which have lacked that delicacy and circumspection that marks a well-bred gentleman’s discourse, whenever he engages in the unpleasant task of suggesting that all might not be for the best in this the best of all possible worlds.  Another thing that has annoyed them is that everything I’m saying is either old hat and already perfectly well understood, or obviously false. The former category includes assertions regarding the rampant dishonesty of placement statistics, the disastrous job market for graduates, the skyrocketing cost of legal education, and the enormous debt load for our students those costs engender, as well as the apparently unsustainable nature of the current business model under which many schools are operating.”

This post was catnip for many bloggers and commentators.  Many of the commentators are students – they say, although being anonymous, they might be spambots, or slumming volokh conspirators, for all I know.   It’s also pointing out that the best available evident makes these unsatisfied customers out to be exceptions to the norm. Then there’s a set of bloggers – exemplified by Scott Greenfield – who are almost all 1) older, 2) white, 3) men, running 4) PI or criminal law practices.  Many have sought positions as law professors, but haven’t obtained tenure-track jobs.  Others, like Scott, appear to be happy in practice.  For these machoblawgers, law professors’ language in response to the “crisis in legal education” exemplifies the problem with law schools:  it is pretentious and elitist (“sherry sipping”); it is feminine and effete (“dulcet tones”, “vapors” and “delicate” law professors versus “brutish” talking “like a lawyer”); and it is (3) incomprehensible (“long words strung together in seemingly random ways”).  Note how Campos and Greenfield have come to the identical criticism, though from quite different premises.  Law professors are eggheads, protected from brutish reality by their high walls.  If only “they” understood how the world really worked.  If only they confronted it with more forceful, manly, speech.

Now all this has deep roots in the robust American tradition of anti-intellectualism (mixed with a bit of insecurity by Campos, I think, who has as much as admitted that he doesn’t do anything to merit his salary).  But in it, we can see exactly how clever bloggers deploy really strong arguments without considering the other side, saying that this is what it means to “talk like a lawyer.”  Greenfield is surely well-positioned to tell us how lawyers in his community (the criminal defense bar) talk.  So, although the lawyers I know and practiced with sounded nothing like him, there’s truth to the accusation.  The question is: does talking and arguing with less nuance make you a better lawyer, and, if so, is “better” lawyering compatible with better law?

Compare Greenfield and Campos with Paul Horwitz’s most recent posts. Paul demonstrates lots of modesty and attention to alternative views, and he describes the genuine difficulties we encounter when we think about a really hard problem. He does so without minimizing the pain that law students without jobs feel (i.e., the “feminine” virtue of empathy), or neglecting historical context.  Even if you disagree with him, I think his writing is more persuasive for nonpartisans than Campos’s accusations of a scam, or than the anonymous commentators that appeared on Prof. Horwitz’s post.  Well, you tell me.  Do these comments persuade you that their authors much of anything?  That they’d be wise counselors worth hiring when legal judgment is called for?

• “And this is why professors are the problem, they will lie, cheat and steal to keep their gravy train going. “
• “Yes, law schools have conquered the social divide, by taking middle and lower middle class students and turning them into impoverished citizens by way of a fortune in student loan debt.”

Perhaps the posters realize this — they are writing simply to express outrage and to rally the troops (like Scalia in Plata).  But I think others don’t understand how they sound to those that disagree with them: they sincerely believe that the best way to persuade is to make an argument a second time.  LOUDER.  WITH MORE @#$ TALKING ABOUT FRAUD!!  If that’s the case, I think that law school is at fault.  We ought to have spent more time talking about psychology, sociology, and rhetoric — helping students to understand how to frame arguments in ways that unfriendly listeners will find persuasive.  We ought to have emphasized the (at least!) instrumental importance of acting like a professional.  And, of course, we ought to’ve spent less time with casebooks and opinions, which simply provide more examples of bad, overmuscular, writing, and bad, overaggressive, lawyering.

What is to be done?  On the  merits, it is crucial to look past this recession. Even when the economy recovers, changes in the legal employment market will make it difficult for certain graduates of certain law schools to recoup their tuition.  Not all law schools.  And not all law graduates.  (Here, the fact that law schools usually serve local legal markets, which are really diverse in outlook, is insufficiently appreciated).  What should affected law schools do?  Let’s consider a few commonly argued paths, ignoring for the purposes of the argument collective action problems and the reality that law schools are controlled by central universities:

• Admit fewer law students.  The purported advantage is well-expressed by the AALS back in 1938: higher rents for existing lawyers.  But the tradeoff is equally obvious: the price for legal services goes up.  Or to put it differently, commentators ought to admit that improving the job market for law school graduates probably results in a tax on the public consuming their services, especially those near poverty.  Where’s the distributional equity in that exchange?
• Make school shorter, and move back to an apprenticeship model.  (Notably, this proposal one runs smack into our ABA overlords.)  This may reduce the price for law school in the near term, but how will lawyers select apprentices?  Might they find students who look/act like them?  To the extent that we think that the current bar isn’t as diverse (economically, especially, but also in terms of gender/race) as we’d like it to be, how will giving lawyers even more power to gatekeep improve matters?  Moreover, is there any evidence that the apprentice system produced better lawyering?
• What if schools admit the same number of students but reduced real (post scholarship) tuition.  To do so, commentators suggest that professors should take a pay cut, or that they should teach more and write less (that is, we ought to hire fewer tenured law professors).  Here, again, we run up against the innovation-choking ABA regime, and the problem of monitoring and motivating unhappy professionals that has so bedeviled law firms.  But even if that path is blocked, schools have options.  They could demand more in gifts from their alumni.  A terrific solution – though this means that the current bar subsidizes new entrants, which isn’t totally attactive.  Or, schools can admit only richer students.  Another distributional mess.  Or, schools can battle with central administrations to take a smaller tax, meaning that (essentially) money is being transferred from university undergrads to law students.  Who has the better of that equitable claim?
• A preferred solution for many commentators is based on a combination of faith in free markets plus transparency.  For some of the reasons Ribstein lays out, I think this the returns on transparency will be disappointing, though the solution isn’t worthless and is certainly politically expedient.   That said, transparency of the kind that commentators want will produce real and opportunity costs, and that has to come from tuition.  So, law schools will tax current students to subsidize the decisions of future students. Better information may, mildly, change matriculation decisions. But continued use by irate commentators of USNews Tier designations (and professors too!) doesn’t particular comfort me that better data will matter to anyone.  People love stupid proxies!  Tier 2 profs rule!
• And What about the inevitable restructing the legal employment market?   Well, of course it isn’t likely that the end result will be more of the kinds of secure jobs that students used to have.*  Will unemployed students feel better if they walk into a bad market with their eyes open? I tend to think not: they will still feel cheated, just in the way that Americans generally feel betrayed by their institutions and the lost promise of the American dream.

In short: the problem is really very hard, and the sooner that we acknowledge that there isn’t a solution that’ll satisfy all the important stakeholders the better. And by important stakeholders, I mean lawyers, current students, and prospective students. The satisfaction of professors is essentially irrelevant.  But, believe me, we’re screwed too.  But that’s a problem for a different post.

Now, put aside these merits, and focus on communication about the problem.  Let’s say you wanted to talk about this set of problems, and you were aware that your worldviews were shaping your understanding of law schools – your views toward egalitarianism, for instance, were making you distrustful of market solutions, or your penchant toward individualism made you believe that transparency was the whole of the solution.  How can you best come to understand the views of those who don’t think like you, and, best of all, to persuade them?

Social psychologists have thought about this problem. Here are some resources.  To summarize: Stuart Smiley beats macho rhetoric, hands down.

**p.s.:  Christine Hurt, one of my favorite people, really has a bunch of zingers in that linked post.  Here’s the best part:

“Finally, I have the best job in the world.  But not for the reasons ALP thinks it’s the best job.  Yes, it is a job where no one can see you shirk and even if they did, they couldn’t fire you.  Whatever.  Being a mom is just like that, and I’m the best mom in the world.  Law teaching is the best job because I get paid to do what I love.  That’s the big secret.  I love the law, and I love learning about it and telling students about it.  I love writing about it.  Does it bother me that other people (not at my institution) are lucky enough to have this job and don’t take advantage of it and give it 100%?  A little …  If you don’t love law teaching, then you may be a scammer.  However, I think most appointments committees can smell these scammers a mile away.”

Kirsch and his colleagues used the Freedom of Information Act to obtain FDA reviews of all placebo-controlled clinical trials, whether positive or negative, submitted for the initial approval of the six most widely used antidepressant drugs approved between 1987 and 1999—Prozac, Paxil, Zoloft, Celexa, Serzone, and Effexor. . . .Altogether, there were forty-two trials of the six drugs. Most of them were negative. Overall, placebos were 82 percent as effective as the drugs, as measured by the Hamilton Depression Scale (HAM-D), a widely used [...]]]> Marcia Angell has kicked off another set of controversies for the pharmaceutical sector in two recent review essays in the New York Review of Books. She favorably reviews meta-research that calls into question the effectiveness of many antidepressant drugs:

Kirsch and his colleagues used the Freedom of Information Act to obtain FDA reviews of all placebo-controlled clinical trials, whether positive or negative, submitted for the initial approval of the six most widely used antidepressant drugs approved between 1987 and 1999—Prozac, Paxil, Zoloft, Celexa, Serzone, and Effexor. . . .Altogether, there were forty-two trials of the six drugs. Most of them were negative. Overall, placebos were 82 percent as effective as the drugs, as measured by the Hamilton Depression Scale (HAM-D), a widely used score of symptoms of depression. The average difference between drug and placebo was only 1.8 points on the HAM-D, a difference that, while statistically significant, was clinically meaningless. The results were much the same for all six drugs: they were all equally unimpressive. Yet because the positive studies were extensively publicized, while the negative ones were hidden, the public and the medical profession came to believe that these drugs were highly effective antidepressants.

Angell discusses other research that indicates that placebos can often be nearly as effective as drugs for conditions like depression. Psychiatrist Peter Kramer, a long-time advocate of anti-depressant therapy, responded to her last Sunday. He admits that “placebo responses . . . have been steadily on the rise” in FDA data; “in some studies, 40 percent of subjects not receiving medication get better.” But he believes that is only because the studies focus on the mildly depressed:

The problem is so big that entrepreneurs have founded businesses promising to identify genuinely ill research subjects. The companies use video links to screen patients at central locations where (contrary to the practice at centers where trials are run) reviewers have no incentives for enrolling subjects. In early comparisons, off-site raters rejected about 40 percent of subjects who had been accepted locally — on the ground that those subjects did not have severe enough symptoms to qualify for treatment. If this result is typical, many subjects labeled mildly depressed in the F.D.A. data don’t have depression and might well respond to placebos as readily as to antidepressants.

Yves Smith finds Kramer’s response unconvincing:

The research is clear: the efficacy of antidepressants is (contrary to what [Kramer's] article suggests) lower than most drugs (70% is a typical efficacy rate; for antidepressants, it’s about 50%. The placebo rate is 20% to 30% for antidepressants). And since most antidepressants produce side effects, patients in trials can often guess successfully as to whether they are getting real drugs. If a placebo is chosen that produces a symptom, say dry mouth, the efficacy of antidepressants v. placebos is almost indistinguishable. The argument made in [Kramer's] article to try to deal with this inconvenient fact, that many of the people chosen for clinical trials really weren’t depressed (thus contending that the placebo effect was simply bad sampling) is utter[ly wrong]. You’d see the mildly/short-term depressed people getting both placebos and real drugs. You would therefore expect to see the efficacy rate of both the placebo and the real drug boosted by the inclusion of people who just happened to get better anyhow.

Felix Salmon also challenges Kramer’s logic:

[Kramer's view is that] lots of people were diagnosed with depression and put onto a trial of antidepressant drugs, even when they were perfectly healthy. Which sounds very much like the kind of thing that Angell is complaining about: the way in which, for instance, the number of children so disabled by mental disorders that they qualify for Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) was 35 times higher in 2007 than it was in 1987. And it’s getting worse: the editors of DSM-V, to be published in 2013, have written that “in primary care settings, approximately 30 percent to 50 percent of patients have prominent mental health symptoms or identifiable mental disorders, which have significant adverse consequences if left untreated.”

Those who would defend psychopharmacology, then, seem to want to have their cake and eat it: on the one hand it seems that serious mental health disorders have reached pandemic proportions, but on the other hand we’re told that a lot of people diagnosed with those disorders never really had them in the first place.

That is a very challenging point for the industry to consider as it responds to concerns like Angell’s. The diagnosis of mental illness will always have ineradicably economic dimensions and politically contestable aims. But doctors and researchers should insulate professional expertise and the interpretation of maladies as much as possible from inappropriate pressures.

How can they maintain that kind of independent clinical judgment? I think one key is to assure that data from all trials is open to all researchers. Consider, for instance, these findings from a NEJM study on “selective publication:”

We obtained reviews from the Food and Drug Administration (FDA) for studies of 12 antidepressant agents involving 12,564 patients. . . . Among 74 FDA-registered studies, 31%, accounting for 3449 study participants, were not published. Whether and how the studies were published were associated with the study outcome. A total of 37 studies viewed by the FDA as having positive results were published; 1 study viewed as positive was not published. Studies viewed by the FDA as having negative or questionable results were, with 3 exceptions, either not published (22 studies) or published in a way that, in our opinion, conveyed a positive outcome (11 studies). According to the published literature, it appeared that 94% of the trials conducted were positive. By contrast, the FDA analysis showed that 51% were positive. Separate meta-analyses of the FDA and journal data sets showed that the increase in effect size ranged from 11 to 69% for individual drugs and was 32% overall. (emphasis added).

Melander, et al. also worried (in 2003) that, since “The degree of multiple publication, selective publication, and selective reporting differed between products,” “any attempt to recommend a specific selective serotonin reuptake inhibitor from the publicly available data only is likely to be based on biased evidence.” Without clearer “best practices” for data publication, clinical judgment may be impaired.

Full disclosure of study funding should also be mandatory and conspicuous, wherever results are published. Ernest R. House has reported that, “In a study of 370 ‘randomized’ drug trials, studies recommended the experimental drug as the ‘treatment of choice’ in 51% of trials sponsored by for-profit organizations compared to 16% sponsored by nonprofits.” The commodification of research has made it too easy to manipulate results, as Bartlett & Steele have argued:

One big factor in the shift of clinical trials to foreign countries is a loophole in F.D.A. regulations: if studies in the United States suggest that a drug has no benefit, trials from abroad can often be used in their stead to secure F.D.A. approval. There’s even a term for countries that have shown themselves to be especially amenable when drug companies need positive data fast: they’re called “rescue countries.” Rescue countries came to the aid of Ketek, the first of a new generation of widely heralded antibiotics to treat respiratory-tract infections. Ketek was developed in the 1990s by Aventis Pharmaceuticals, now Sanofi-Aventis. In 2004 . . . the F.D.A. certified Ketek as safe and effective. The F.D.A.’s decision was based heavily on the results of studies in Hungary, Morocco, Tunisia, and Turkey.

The approval came less than one month after a researcher in the United States was sentenced to 57 months in prison for falsifying her own Ketek data. . . . As the months ticked by, and the number of people taking the drug climbed steadily, the F.D.A. began to get reports of adverse reactions, including serious liver damage that sometimes led to death. . . . [C]ritics were especially concerned about an ongoing trial in which 4,000 infants and children, some as young as six months, were recruited in more than a dozen countries for an experiment to assess Ketek’s effectiveness in treating ear infections and tonsillitis. The trial had been sanctioned over the objections of the F.D.A.’s own reviewers. . . . In 2006, after inquiries from Congress, the F.D.A. asked Sanofi-Aventis to halt the trial. Less than a year later, one day before the start of a congressional hearing on the F.D.A.’s approval of the drug, the agency suddenly slapped a so-called black-box warning on the label of Ketek, restricting its use. (A black-box warning is the most serious step the F.D.A. can take short of removing a drug from the market.) By then the F.D.A. had received 93 reports of severe adverse reactions to Ketek, resulting in 12 deaths.

The great anti-depressant debate is part of a much larger “re-think” of the validity of data. Medical claims can spread virally without much evidence. According to a notable meta-researcher, “much of what medical researchers conclude in their studies is misleading, exaggerated, or flat-out wrong.” The “decline effect” dogs science generally. Statisticians are also debunking ballyhooed efforts to target cancer treatments.

Max Weber once said that “radical doubt is the father of knowledge.” Perhaps DSM-VI will include a diagnosis for such debilitating skepticism. But I think there’s much to be learned from an insistence that true science is open, inspectable, and replicable. Harvard’s program on “Digital Scholarship” and the Yale Roundtable on Data and Code Sharing* have taken up this cause, as has the work of Victoria Stodden.

We often hear that the academic sector has to become more “corporate” if it is to survive and thrive. At least when it comes to health data, the reverse is true: corporations must become much more open about the sources and limits of the studies they conduct. We can’t resolve the “great anti-depressant debate,” or prevent future questioning of pharma’s bona fides, without such commitments.

*In the spirit of full disclosure: I did participate in this roundtable.

X-Posted: Health Law Profs Blog.

Very long-term thinking has two characteristic pitfalls. As the Village’s deficit obsession shows, sometimes panic over a distant threat can derail attention to much more pressing ones. There’s also little accountability for long-term prognosticators. A lot can happen between now and 2030, and as Philip Tetlock has shown, media and academic elites rarely lose visibility or credibility in the wake of even grotesquely wrong predictions. The futuristic novel can be a much safer place to conjure up ensuing decades.

But unlike speculative fiction, or the slightly less speculative macro-predictive fare of a “Megatrends” [...]]]> Daniel Altman’s book Outrageous Fortunes is consistently smart, engaging, and counterintuitive. Ambitious in scope, it discusses several important forces shaping the global economy over the next few decades.

Very long-term thinking has two characteristic pitfalls. As the Village’s deficit obsession shows, sometimes panic over a distant threat can derail attention to much more pressing ones. There’s also little accountability for long-term prognosticators. A lot can happen between now and 2030, and as Philip Tetlock has shown, media and academic elites rarely lose visibility or credibility in the wake of even grotesquely wrong predictions. The futuristic novel can be a much safer place to conjure up ensuing decades.

But unlike speculative fiction, or the slightly less speculative macro-predictive fare of a “Megatrends” or “Bold New World,” Altman’s book is grounded in a deep engagement with current economic dilemmas. His analysis works on two levels. First, for a self-interested investor, it’s good to be aware of the long-run influences on productivity and power that Altman outlines. For example, his discussion of the new colonialism demonstrates both the short-term profits and long-term risks that arise when countries like China and Saudi Arabia start buying rights to agricultural land and other resources in poorer places. He also challenges conventional wisdom on disintermediation, making a compelling case that certain middlemen and arbitrageurs can only gain from market integration.

Outrageous Fortunes also succeeds as a work for wonks, taking its place in the often noble genre dubbed by David Brin the self-preventing prophecy. As Altman puts it, “a frequent goal of prediction is to alter the future – to warn of impending danger so that it can be avoided.” The book describes many impending dangers, including increasing inequality driven by global warming, accelerating brain drains, and an enormous financial black market that is developing outside of traditional financial centers. Altman’s description of that black market is particularly acute, and worth discussing in some detail.

Altman observes that “the last two decades witnessed the greatest expansion in financial markets the world has ever seen. At the heart of this expansion was the proliferation of derivatives. These are securities that are neither equity like shares in the company, nor debts, like government bonds. Rather, they are gambles; contingent on something the world is not yet know, like the future price of oil, whether a company will go bankrupt, or even the weather” (178). Despite the proliferation of derivatives contracts, and the exponential growth of their notional value, regulators have failed to develop even the most elementary methods of assessing the risks they pose. More ominously, the very wealthy individuals and entities who play this market threatened to decamp for less restrictive settings whenever the possibility of regulation is broached.

Mainstream legal and economic discussions of finance tend to accept this dynamic as an inevitable outcome of globalization. However, Altman traces the trends to their logical conclusion: an “offshore migration of sophisticated” traders toward websites that, like ships that fly under a flag of convenience, allow you to “bet on the future values of thousands of stocks, stock indexes, commodities, treasury bonds, and currencies– all without holding any of the underlying securities” (194). As he notes, these platforms could be tremendously destabilizing; unless there is a massive bailout, “a crisis in the financial black market will leave investors with virtually no protection against a total collapse.” We frequently hear from financial experts that only banks with some governmental guarantee need to monitored and regulated. Altman suggests that failures in the offshore world could wreak havoc in nation states.

Altman believes that there is an alternative: much more intense monitoring of the global financial system by national and international regulators. Outrageous Fortunes features other pragmatic approaches toward addressing pressing global problems. The book is a must-read for those interested in the long-term future of their jobs, communities, and global economy.

As the debate heats up and accelerates in internet time, it’s a pleasure to turn to Siva Vaidhyanathan’s The Googlization of Everything, a carefully considered take on the company composed over the past five years. After this week is over, no one is going to really care whether Google properly punished JC Penney for scheming its way to the top non-paid search slot for “grommet top curtains.” But [...]]]> Google’s been in the news a lot the past month. Concerned about the quality of their search results, they’re imposing new penalties on “content farms” and certain firms, including JC Penney and Overstock.com. Accusations are flying fast and furious; the “antichrist of Silicon Valley” has flatly told the Googlers to “stop cheating.”

As the debate heats up and accelerates in internet time, it’s a pleasure to turn to Siva Vaidhyanathan’s The Googlization of Everything, a carefully considered take on the company composed over the past five years. After this week is over, no one is going to really care whether Google properly punished JC Penney for scheming its way to the top non-paid search slot for “grommet top curtains.” But our culture will be influenced in ways large and small by Google’s years of dominance, whatever happens in coming years. I don’t have time to write a full review now, but I do want to highlight some key concepts in Googlization, since they will have lasting relevance for studies of technology, law, and media for years to come.

Cryptopicon

Dan Solove helped shift the privacy conversation from “Orwell to Kafka” in a number of works over the past decade. Other scholars of surveillance have first used, and then criticized, the concept of the “Panopticon” as a master metaphor for the conformity-inducing pressures of ubiquitous monitoring. Vaidhyanathan observes that monitoring is now so ubiquitous, most people have given up trying to conform. As he observes,

[T]he forces at work in Europe, North America, and much of the rest of the world are the opposite of a Panopticon: they involve not the subjection of the individual to the gaze of a single, centralized authority, but the surveillance of the individual, potentially by all, always by many. We have a “cryptopticon” (for lack of a better word). Unlike Bentham’s prisoners, we don’t know all the ways in which we are being watched or profiled—we simply know that we are. And we don’t regulate our behavior under the gaze of surveillance: instead, we don’t seem to care.

Of course, that final “we” is a bit overinclusive, for as Vaidhyanathan later shows in a wonderful section on the diverging cultural responses to Google Street View, there are bastions of resistance to the technology:

One search engine professional, Osamu Higuchi, posted an open letter to Google staff in Japan on his blog in August 2008. The letter urged Google staff to explain to their partners in the United States that Street View demonstrates a lack of understanding of some important aspects of daily life in Japan. Osamu urged Google to remove largely residential roads from Street View. “The residential roads of Japan’s urban areas are part of people’s living space, and it is impolite to photograph other people’s living spaces,” Osamu wrote. . . .

A person walking down the street peering into residents’ yards would be watched right back by offended residents, who would consider calling the police to report such dangerous and antisocial behavior. But with Google Street View, the residents can’t see or know who is peeping. Osamu’s pleas and concerns were shared by enough others in Japan that by May 2009, Google announced it would reshoot its Street View images of Japanese cities with the cameras mounted lower, to avoid peering over hedges and fences.

There are a number of other examples in the book of technology being modified to adopt to cultural norms. But the dominant story is of cultural norms being reshaped by deployment of new technologies.

Public Failure

Progressives often cite “market failure” as a reason for regulation. But the term itself has a hidden laissez-faire bias, implying that markets generally succeed and that intervention is extraordinary. Vaidhyanathan balances the playing field by introducing the idea of the “public failure,” which itself is parasitic on a larger vision of endeavors naturally performed or sponsored by government or civil society. As he explains,

[N]eoliberalism. . . .had its roots in two prominent ideologies: techno-fundamentalism, an optimistic belief in the power of technology to solve problems . . . and market fundamentalism, the notion that most problems are better (at least more efficiently) solved by the actions of private parties rather than by state oversight or investment.

Neoliberalism [included] . . . substantial state subsidy and support for firms that promulgated the neoliberal model and supported its political champions. But in the end the private sector calls the shots and apportions (or hoards) resources, as the instruments once used to rein in the excesses of firms have been systematically dismantled. . . . .

Google has deftly capitalized on a thirty-year tradition of “public failure,” chiefly in the United States but in much of the rest of the world as well. Public failure, in contrast, occurs when instruments of the state cannot satisfy public needs and deliver services effectively. This failure occurs not necessarily because the state is the inappropriate agent to solve a particular problem (although there are plenty of areas in which state service is inefficient and counterproductive); it may occur when the public sector has been intentionally dismantled, degraded, or underfunded, while expectations for its performance remain high.

Vaidhyanathan’s call for a “Human Knowledge Project” in response to this trend is one of the few tech policy proposals that is bold, ambitious, and comprehensive enough to address the challenges posed by privatized knowledge systems. I will address that in more detail in a future post; for those dying to know my thoughts, here is a video where I a) analogize Google’s role in the knowledge system to private insurers’ role in the health system, and b) propose a Medicare-like alternative, or “public option,” to assure a transparent baseline of access to knowledge for those not served by Google and similar systems.

I think Tett’s diagnosis should cause academics to ask some hard questions about why we did not do more to highlight and critique the problems in the financial markets prior to the crash. For myself, for example, fieldwork in the derivatives markets had convinced me [...]]]> Brian McKenna published an interesting piece in the Society for Applied Anthropology Newsletter, which is reprinted here. He quotes Financial Times Managing Editor Gillian Tett on one underexplored reason for lack of public attention to “financial innovation” pre-2008: “Once something is labeled boring, it’s the easiest way to hide it in plain sight.” He also reproduces a fascinating reflection from Annelise Riles, whose work Collateral Knowledge: Legal Reasoning in the Global Financial Markets will soon be released:

I think Tett’s diagnosis should cause academics to ask some hard questions about why we did not do more to highlight and critique the problems in the financial markets prior to the crash. For myself, for example, fieldwork in the derivatives markets had convinced me long before the crash that all was not well in these markets. My husband (also an ethnographer of finance) and I often joked way back around 2002 that our research had convinced us not to put a penny of our own money in these markets.

But our own disciplinary silo made us feel that it was impossible to counter the enthusiasm for financial models out there in the economics departments, the business schools, the law schools, the corridors of regulatory institutions. There surely was some truth to our sense that no one wanted to hear that markets were not rational in the sense assumed by the firms’ and regulators’ models. But maybe we should have tried a bit harder; it turns out many other people also had doubts and thought they too were alone. What might have happened if we had all found a way to link our skepticisms?

At this point, it may well be the case that most financial economists have so barren a theory of the social purpose of financial markets that they really are only teaching people how to succeed within the current system, rather than improving the system overall. It’s a bit like a divinity school run by “believers,” rather than a religious studies department trying to study the religious (to borrow a distinction from Paul Kahn’s Cultural Study of Law).

More voices—from sociologists, anthropologists, heterodox economists, etc.—are needed. Gillian Tett, Karen Ho, and a few legal scholars like Riles and Funmi Arewa approach financial markets via modes of social inquiry that maintain a critical edge about their subjects. The RWER also provides good insights on what a renewed discipline of economics would look like.

Ultimately, we need a new sociology of expertise at agencies. We can no longer rely on government assurances that only the people who engineered the financial mess can help us find our way out of it. We need to consult those who have studied those engineers, limned their deformations professionelles, and considered alternative ways of structuring society’s capital allocation. As politics declines, capital allocation is the most important determinant of a society’s future.

In the finreg space today, I think there are at least three groups that are doing much to “connect skepticisms” about the financial system. The first are “knowledgeable professionals working within the system,” and in their ranks I’d include Mike Konczal, Jennifer Taub, Lawrence Baxter, and a few other bloggers and Roosevelt Institute scholars. Alternatively, something approaching a public option or “utility model for banking” is being advanced by Ellen Brown, Matt Stoller, Timothy Canova, and many European thinkers. Finally, libertarians not captured by the Kochtopus have many interesting things to say: I’d include in their ranks Amar Bhide, Nicole Gelinas, and Russ Roberts. To the extent we can begin to recognize that TBTF companies are essentially state actors, I can foresee fruitful interactions among all these intellectual spheres of influence.

Photo Credit: Nic221.

The panels must award each submitted work one of four grades, ranging from 4*, the top grade, for work whose “quality is world leading in terms of originality, significance and rigor,” to the humble 1*, “recognized nationally in terms of originality, significance, and rigour.” The anthropologist John Davis . . . has written of exercises such [...]]]> There is an excellent review essay by Simon Head on the future of British universities in the NYRB. It discusses the Strategic Plan of the Higher Education Funding Council for England (HEFCE), including the “Research Assessment Exercise (RAE) led every six or seven years.” As of 2008, panels of 10 to 20 specialists in 67 fields evaluate work during RAEs. As the author explains,

The panels must award each submitted work one of four grades, ranging from 4*, the top grade, for work whose “quality is world leading in terms of originality, significance and rigor,” to the humble 1*, “recognized nationally in terms of originality, significance, and rigour.” The anthropologist John Davis . . . has written of exercises such as the RAE that their “rituals are shallow because they do not penetrate to the core.”

I have yet to meet anyone who seriously believes that the RAE panels—underpaid, under pressure of time, and needing to sift through thousands of scholarly works—can possibly do justice to the tiny minority of work that really is “world leading in terms of originality, significance and rigour.” But to expect the panels to do this is to miss the point of the RAE. Its roots are in the corporate, not the academic, world. It is really a “quality control” exercise imposed on academics by politicians; and the RAE grades are simply the raw material for Key Performance Indicators [KPIs], which politicians and bureaucrats can then manipulate in order to show that academics are (or are not) providing value for taxpayers’ money.

Imagine “needing to sift through thousands of scholarly works” in short order; what a bizarre process. There are many critics of RAE; this essay is particularly worth reading because it connects the dots between corporate-speak and the new academic order:

Of all the management practices that have become central in US business schools and consulting firms in the past twenty years—among them are “Business Process Reengineering,” “Total Quality Management,” “Benchmarking,” and “Management by Objectives”—the one that has had the greatest impact on British academic life is among the most obscure, the “Balanced Scorecard” (BSC). On the seventy-fifth anniversary of the Harvard Business Review in 1997, its editors judged the BSC to be among the most influential management concepts of the journal’s lifetime. . . .

[T]he methodologies of the Balanced Scorecard focus heavily on the setting up, targeting, and measurement of statistical Key Performance Indicators (KPIs). Kaplan and Norton’s central insight has been that with the IT revolution and the coming of networked computer systems, it is now possible to expand the number and variety of KPIs well beyond the traditional corporate concern with quarterly financial indicators such as gross revenues, net profits, and return on investment. . . . Writing in January 2010, the British biochemist John Allen of the University of London told of how “I have had to learn a new and strange vocabulary of ‘performance indicators,’ ‘metrics,’ ‘indicators of esteem,’ ‘units of assessment,’ ‘impact’ and ‘impact factors.’”

Head notes that the “academic control regime with its KPIs will continue to apply as much to philosophy, ancient Greek, and Chinese history as it does to physics, chemistry, and academic medicine.” It’s easy to project the types of biases the system will create: don’t offend people who might be on the selection committee; focus work on what they can recognize as “world leading” (one wonders how many languages the assessors know); and, of course, avoid writing long-form books to instead concentrate on high-impact journal articles that any panelist can recognize as an advance in the field.

An Australian business school professor, Dennis Tourish, has criticized similar efforts in his country. In business schools, “world leading” appears to be what plays well in America:

The most lauded journals are based in the US, since this is the biggest market for management education and has first leader advantage. These reflect the positivist and functionalist orthodoxy that dominates the discipline there. They pay relatively little attention to such problems in management theory and practice as exploitative working conditions, race or ethics. Non-US academics who wish to publish in such outlets – and few succeed – overwhelmingly have to adapt to their norms, practices and theoretical priorities to do so. . . . [emphasis added]

Elite journals also have a rejection rate, typically, of over 90 per cent. For some reason, this is used to justify the quality of a journal. It, therefore, becomes a target for others, convinced that competitive advantage can be obtained by copying the behaviours of their rivals. To achieve this, desk rejection is increasingly common. Editors have become judge, jury and, mostly, executioner. So much for the safeguards of peer review. If you dodge the bullet of desk rejection an arduous obstacle course remains.

One British academic complains that “whether my article is any good, or advances scholarship in the field, are quickly becoming secondary issues.”

Head provocatively asks “Might the scale of the global financial crisis, driven by the targeting mania of the Balanced Scorecard and by automated management systems, shake the confidence of those who think that these very same methods should be applied throughout to the academy?” It’s a great question, for, as Amar Bhide has argued in A Call for Judgment, the “balanced scorecard” approach has wrought havoc in finance as decisionmakers increasingly distant from actual borrowers have set in place manipulable numerical standards that did little more than increase the volume of transactions (and, thereby, high-ranked managers’ bonuses). RAEs will drive a similar boom in back-scratching citation networks and point-scoring articles. But no matter how flawed a business method or personality may be, they seem to have an irresistible lure to academic managerialists: witness the ascension of Lord Browne to lead a British education review after his smashing job at BP.

There will always be a tension between the autonomy of the academic enterprise and the need to subject it to the demands of markets and states for measurable benchmarks of productivity and efficiency. But the recent British & Australian efforts to rationalize the research enterprise risk turning society into a monoculture, where everyone is striving for more points (be they measured in money, esteem, or power). It reminds me of Hobbes’s Leviathan, where he observes, of “A Restlesse Desire Of Power:”

I put for a generall inclination of all mankind, a perpetuall and restlesse desire of Power after power, that ceaseth onely in Death. And the cause of this, is not alwayes that a man hopes for a more intensive delight, than he has already attained to; or that he cannot be content with a moderate power: but because he cannot assure the power and means to live well, which he hath present, without the acquisition of more.

The assessment systems are ever-unstable rankings, not stable scores; one has to keep playing the game or get left behind. The bureaucratization of research “excellence” is becoming as much a power as a knowledge game: those who define what counts as KPIs can, in turn, define contributions to knowledge. Perhaps this process always went on, sotto voce, as individual scholars in individual studies decided what research programs to pursue, and what to let die; whom to cite, and whom to ignore. That old, quiet process had many biases and problems of its own. But it now appears charmingly decentralized and humane in comparison with the assembly line of assessment mobilized by RAEs and journal rankings.

There are many reasons to think that Google will continue to dominate the general purpose search field. Sure, searchers and advertisers can access a vibrant field of also-rans. But most users will always want a shot at Google for serious searching and advertising, just as a mobile [...]]]> Search neutrality is on the rise in Europe, and on the ropes in the US (or at least should be, according to James Grimmelmann). We barely have net neutrality here, and the tech press bridles at the thought of a sclerotic DC agency regulating god-like Googlers. I want to question its conventional wisdom, by proving how modest the “search neutrality” agenda is now, and how well it fits with classic ideals of neutrality in law.

There are many reasons to think that Google will continue to dominate the general purpose search field. Sure, searchers and advertisers can access a vibrant field of also-rans. But most users will always want a shot at Google for serious searching and advertising, just as a mobile internet connection is no substitute for a high bandwidth one for many important purposes.

Given these parallels, I’ve compared principles of broadband non-discrimination and search non-discrimination. But virtually every time the term “search neutrality” comes up in conversation, people tend to want to end the argument by saying “there is no one best way to order search results—editorial discretion is built into the process of ranking sites.” (See, for example, Clay Shirky’s response to my position in this documentary.) To critics, a neutral search engine would have to perform the (impossible) task of ranking every site according to some Platonic ideal of merit.

But on my account of neutrality, a neutral search engine must merely avoid certain suspect behaviors, including:

1) Stealth marketing (secretly taking cash or other consideration in exchange for elevating the profile of sites in organic search results)

2) De-indexing without notice and explanation (removing legal, non-spam sites from the index after they have been included in the search engine’s corpus, and failing to give some explanation to the removed site as to why it was removed)**

I think my concept of neutrality is much closer to the way the term is normally used in political philosophy (where, say, a “neutral state” is one that does not favor any particular conception of the good, rather than one that accords exactly the right amount of respect to each conception of the good). Neutrality is a very broad term, and the obvious differences between the technical operation of physical infrastructure and search engines should not stop us from applying certain broad principles to each entity.

Neutral State, Neutral Search Engine

What do we mean when we talk about search neutrality? Opponents of net neutrality have called the term too vague, identifying “31 flavors” of neutrality to support any ideological commitments under the sun. But Michael Powell’s “four freedoms” have proven relatively uncontroversial. I think a similar consensus will coalesce around stealth marketing and de-indexing. A brief review of how one insightful political philosopher conceptualized neutrality may help get us there.

In his “The Ideal of a Neutral State” (in this collection), Peter Jones helps us understand key controversies in conceptualizing neutrality.* His central insight is a recognition of the familiar, “ordinary language” sense in which neutrality is used. The “question of neutrality often only arises in a conflict; a commitment to neutrality indicates a willingness to help or hinder parties to an equal degree.”

By examining a list of examples of such conflicts, Jones demonstrates that “being neutral” can take different forms in different contexts. For instance, a nation may have to refrain from helping or hindering either side in an international conflict if it is to remain neutral; a judge may have to ensure that there are strict guidelines for the presentation of evidence if he is to be seen as a neutral arbiter of a fair decisionmaking process. Based on examples like these, Jones argues that there are two senses of neutrality, negative and positive. Whereas negative neutrality can be achieved simply through inaction, positive neutrality “is a matter of establishing certain conditions of equality among individuals, conditions which ‘neutralise’ certain factors that might otherwise enable one individual to fare better than another.”

Does a search engine have a duty of “positive neutrality?” No, but much of what it does amounts to a similar effort. If some scheming company starts “link farms” to make its sites more visible, it should be punished. It’s gotten an unfair advantage. We can, in general, count on the search engine to promote its users’ interests by detecting and deterring that kind of advantage-seeking.

But there are many other situations where a search engine’s interests may coincide more with those of its best advertisers, rather than its users’. As Brin & Page stated, “we expect that advertising funded search engines will be inherently biased towards the advertisers and away from the needs of the consumers.” We’ve been in this situation repeatedly in the communications context, and the neutral state has come up with a solution: require both conduits and content providers to disclose whether they are raising the profile of those who pay them. Stealth marketing is unfair to consumers and to competitors of the stealth marketer. The state realizes that money already confers an enormous advantage in the battle for mindshare, and requires, at the very least, that such advantage be disclosed when it is bought. It is right to neutralize certain factors (such as sub rosa payments) that might enable one source to fare better than another.

Opaque Search Technology is a Widespread Problem

Search engines are only one of many intermediaries that use opaque search technology. Moreover, to the extent search engines become some magical category of zero-regulation, expect other entities to incorporate search technology to obtain the same advantages that search engines have. The regulatory arbitrage game is just too easy to play.

Given these looming problems, some entity should be able to audit the systems used by any dominant intermediary to find out if stealth marketing and de-indexing without notice is happening. I don’t necessarily care if the entity is public or private—we just need some group to be able to “look under the hood.” And if anyone says “it’s just too complex to explain or understand,” consider the kind of black box future that position portends.

Looking ahead, I don’t actually think this disclosure remedy will do much to change consumer or advertiser behavior. Dominant search engines, online retailers, device makers, and social networks have enormous advantages over rivals now, and as Tim Wu has shown, a “Cycle” of early cutthroat competition has repeatedly congealed into oligopoly in the communications and media fields. But even ex post disclosure will at least allow future historians, academics, and policymakers to understand how our information environment was shaped.

In the long term, we’ll probably need to have some publicly funded alternative to dominant internet intermediaries, just as we have a Postal Service to serve those who can’t afford FedEx, or Medicare to serve those who are too old or disabled to get reasonably priced private insurance, or arts subsidies to help forms of expression that the market will never underwrite. Disclosure helps us understand how urgent the need is for an alternative.

*Peter Jones, “The Ideal of the Neutral State” in Robert E. Goodin and Andrew Reeve (eds.), Liberal Neutrality (Routledge, 1989).

**My work in the article “Asterisk Revisited” has also led me to believe that a trademark holder should appear somewhere on the top results page when its trademark, without more, is a search query. But I don’t believe current law requires that, and I don’t want to clutter this post with what would certainly be a complex discussion of trademark policy.

Image Credit: Steve Rhodes.

Legendary computer scientist Brian W. Kernighan (co-author of the classic textbook on the C programming language) wrote a delightful editorial on rankings last fall:

In the 1980s, statisticians at Bell Laboratories studied the data from the 1985 “Places Rated Almanac,” [...]]]> Paul Caron brings news of the ranking system from Thomas M. Cooley School of Law, which pegs itself at #2, between Harvard and Georgetown. Caron calls it “the most extreme example of the phenomenon we observed [in 2004]: in every alternative ranking of law schools, the ranker’s school ranks higher than it does under U.S. News.” I just wanted to note a few other problems with such systems, apart from what I’ve discussed in earlier blog posts and articles on search engine rankings.

Legendary computer scientist Brian W. Kernighan (co-author of the classic textbook on the C programming language) wrote a delightful editorial on rankings last fall:

In the 1980s, statisticians at Bell Laboratories studied the data from the 1985 “Places Rated Almanac,” which ranked 329 American cities on how desirable they were as places to live. (This book is still published every couple of years.) My colleagues at Bell Labs tried to assess the data objectively. To summarize a lot of first-rate statistical analysis and exposition in a few sentences, what they showed was that if one combines flaky data with arbitrary weights, it’s possible to come up with pretty much any order you like. They were able, by juggling the weights on the nine attributes of the original data, to move any one of 134 cities to first position, and (separately) to move any one of 150 cities to the bottom. Depending on the weights, 59 cities could rank either first or last! [emphasis added]

To illustrate the problem in a local setting, suppose that US News rated universities only on alumni giving rate, which today is just one of their criteria. Princeton is miles ahead on this measure and would always rank first. If instead the single criterion were SAT score, we’d be down in the list, well behind MIT and California Institute of Technology. . . . I often ask students in COS 109: Computers in Our World to explore the malleability of rankings. With factors and weights loosely based on US News data that ranks Princeton first, their task is to adjust the weights to push Princeton down as far as possible, while simultaneously raising Harvard up as much as they can.

Kernighan has also recently given talks on innumeracy, describing how easy it is to distort important debates with misleading or false numerical indicators.

So it’s clear that ranking systems can either be structured to produce certain results, or provoke gaming once they are structured. Perhaps only a diversity of rankings can solve that problem. But as James F. English shows in his book, The Economy of Prestige, in many cases the “alternative rankings” must migrate toward the opinions of the establishment rankings, or risk irrelevance. Network power makes it difficult to break out of the pack, however worthy the effort may be.

We can at least be thankful that the extant ranking criteria are public, so we can detect arbitrary weighting. In other spheres of life, ranking systems are secret—a problem I’m exploring in a book I’m writing called The Black Box Society. For an entertaining example of a secret scoring system, check out this article on the “web’s social scorekeepers:”

People have been burnishing their online reputations for years, padding their resumes on professional networking site LinkedIn and trying to affect the search results that appear when someone Googles their names. Now, they’re targeting something once thought to be far more difficult to measure: influence over fellow consumers.

The arbiters of the new social hierarchy have names like Klout, PeerIndex and Twitalyzer. Each company essentially works the same way: They feed public data, mostly from Twitter, but also from sites like LinkedIn and Facebook, into secret formulas and then generate scores that gauge users’ influence. Think of it as the credit score of friendship or, as PeerIndex calls it, “the S&P of social relationships.”

Zach Bussey, a 25-year-old consultant, started trying to improve his social-media mojo last year. “It is an ego thing,” says Mr. Bussey, who describes himself as a social-media “passionisto.” One of the services he turned to was TweetLevel, created by public-relations firm Edelman. It grades users’ influence, popularity, trust and “engagement” on a scale of 1 to 100. He decided to try to improve his score by boosting the ratio of people who follow him to the number he follows. So he halved the number of people he was following to 4,000. His TweetLevel score rose about 5 points and his Klout score jumped from a 51 to a 60.

The Klout rankings remind me of Avvo rankings for lawyers (which I discussed in this book). I can’t say too much about them because their algorithms are secret. But I think any system that ranks Justin Bieber (K=100) over Lady Gaga (K=90) is inherently suspect.

What do these ranking games teach us? Perhaps the key is to “choose the right pond,” or find the niche one is best suited for:

Photo Credits: Leo Reynolds; gordasm.

For me, the point made at the end of Amy’s introduction, about [...]]]> Congratulations to all involved on the publication of the A2K volume!  I think A2K is a provocative way of framing some contemporary debates around knowledge, information, community, property, intellectual or otherwise.  It feels like every week brings us some new shift which is being linked to A2K issues: Tunisia; Egypt; WikiLeaks to name just a few.  In many of these situations, what’s at stake is the way that knowledge is legally characterized as property: state property; private property etc.  And the ways in which our ability to reproduce and disseminate knowledge radically shifts our understanding of what an object or subject of knowledge is, bringing into being new publics and new kinds of archive.

For me, the point made at the end of Amy’s introduction, about the need to separate “knowledge” from “information” is a key one, in that if all knowledge is rendered as information and more specifically information stored and passed around in digital data networks, then knowledge has already been reified or turned into a commodity.  Perhaps I might even wonder if there was a more fundamental kind of access than “access to knowledge” that was at stake in contemporary struggles about intellectual property.  For example if communities and individuals are constituted by practices of copying, things like pleasure, affect, relation are all there, even “being”. It’s always possible to instrumentalize those things are forms of knowledge or “ethical know how” as Buddhist neurologist Francisco Varela termed it.  But it may be the case that something important gets lost if one overemphasizes knowledge at the expense of other forms of being in the world.

In my own work, I’ve emphasized the importance of practice as being important in itself, regardless of the “content”.  How do we defend particular practices of copying that may or may not be centered on knowledge production but which nonetheless are culturally significant? There’s an important body of work in critical theory, from Bataille and Blanchot through Agamben and Nancy on the importance of “nonknowledge” and “unworking” (désoeuvrement). These concepts can seem very abstract and removed from the concrete struggles of social activists, but I wonder to what degree they might be helpful in thinking and making spaces where openness and sharing prevail, spaces that can’t necessarily be defined in advance as public domain or commons  etc.

I like how the various articles (contributed by entrepreneurs, theorists, designers, and others) hang together. The terrific design work is a refreshing change from the barren pages of business blogs, law reviews, and academic books (though it looks like some legal scholars are renewing interest [...]]]> The New Museum of Contemporary Art has hosted an exhibit called “The Last Newspaper” the past few months. Part of the exhibit centers around newspaper-based art. Another focus has been a “hybrid of journalism and performance art,” as groups of editors and writers developed “last newspaper sections” in areas ranging from real estate to sports to leisure. I co-edited the business section, which is available here in a low-res copy. I’m posting our editorial statement below.

I like how the various articles (contributed by entrepreneurs, theorists, designers, and others) hang together. The terrific design work is a refreshing change from the barren pages of business blogs, law reviews, and academic books (though it looks like some legal scholars are renewing interest in visual aspects of justice).

Virtual Values
(Editorial Statement for the Business Section of the New City Reader, Dec., 2010)

Ours has been called a “weightless economy.” Once gold served as money; then paper became our currency; now the Federal Reserve can create $600 billion with a few keystrokes at a Washington, D.C. computer terminal. We increasingly value “intellectual property” over the materials it shapes. Leading companies seek to hold only brands, patents and trade secrets, contracting out nonessential activities. Even the state has been encouraged to become “virtual,” hosting only the “highest value” activities and outsourcing mundane tasks like security.

Yet even digitized flows of electrons must zip along real cables, appear on real computer screens and be interpreted by real people. When disputes arise, litigants appeal to the slow machinery of justice. Even in the foreclosure mills of America’s foremost Ponzi State, Florida, “robo-signed” documents must be presented to real judges in person at actual desks.

In the business section of the New City Reader, we explore the intersections of the virtual economy with the material world. We examine how electronic flows of wealth and debt shape—-if not actually comprise-—the global economy. Near-instantaneous “flash trading” dominates some stock exchanges. Originally justified as a way of achieving price discovery more quickly, the technology now appears to be driving, rather than serving, trading strategies. Traders are building parallel network connections and reshaping the urban environment by creating “data districts” to gain a competitive edge; Kazys Varnelis examines how these developments are reshaping Manhattan and the entire tri-state region.

As we examine the physical basis of this high-frequency trading, we ask a few related questions: why should the evanescent flickers of numbers on a computer screen determine the price of cooking oil in Borneo or a mortgage in Brooklyn? If it’s good for traders to reduce inter-regional price differences in an hour, is it better to do so in 30 minutes? One minute? One millisecond? Are there diminishing returns for the strategy? And might the effort to encourage rapid arbitrage ultimately encourage the very distortions it was meant to reduce—just as tranched mortgage-backed securities, advertised as a new risk management technology, ended up exacerbating and spreading the very risks they were supposed to ameliorate and contain?

The mainstream media has rarely asked these questions. When they are addressed, pat answers abound about “liquidity” and the inexorable march of technology in markets. Satirizing this uncritical, near-automated journalism—still all too evident ten years after publication of Doug Henwood’s “After the New Economy” and Thomas Frank’s collection “Boob Jubilee”—Ray Cha fancifully assembles a decade of press clippings of business journal darlings gone bust into coverage for the new new thing online: a fake—but perhaps frighteningly plausible—Web 2.0 conglomerate called Lorem Ipsum. Twisting the knife a bit more, Cha also offers the end-point of the atomization of journalism and information: a roster of business best-sellers distilled into 140 characters.

It’s easy to just try to ignore all these trends, retreating into the narcotic comforts of the latest gadgets. In a rare turn as social critic, Heraclitus diagnosed that, “For the waking there is one world, and it is common; but sleepers turn aside each one into a world of his own.” John Cantwell slips into the world of local business and investigates how the new locative services we carry with us on our personal iDevices instead may have a totalizing effect on Main Street.

Stock markets on autopilot; consumption trapped in closed circuits of favors and baubles; a navel-gazing press unmoored from reality and a phantom public in turn unmoored from it: you’d be excused for finding our business section a bleak mirror of Great Recession. But the remnant of hope at the bottom of our Pandoran black box of perpetual financial crisis is fresh new thought about the foundations of economic life.

Check out Daniel Payne’s reflections on trust, the ultimate foundation of economy and society. If people lose trust in the value of products and services, deflation can set in; if they lose faith in the value of money, a flight to cash in on its current value can lead to inflation. In Brazil, a virtual currency called the Unit of Real Value helped save the country from runaway inflation when citizens came to trust a government plan to reset prices in “reals.” Local currencies may now offer a small scale exit from the ever less stable value of our skills and assets—yet as Karli Scott recounts in a firsthand account of Ithaca, New York’s HOURS currency, they too are entirely beholden to continuing confidence in their use.

Perhaps an American reset is in order. As John Maynard Keynes once put it, in times similar to our own, “The outstanding faults of the economic society in which we live are its failure to provide for full employment and its arbitrary and inequitable distribution of wealth and incomes.” Perhaps we fear this section resembles a terminal status update because so few of our contemporaries keep that insight in mind.

This is the essence of the terms being offered by Frey’s company Full Fathom Five: In exchange for delivering a finished book within a set number of months, the writer would receive $250 (some contracts allowed for another $250 upon completion), along with a percentage of all revenue generated by the project, including television, film, and merchandise rights—30 percent if the idea was originally Frey’s, 40 percent if it was originally [...]]]> Momus once predicted that, on the Internet, everyone will be famous for 15 people. But there are still valiant warriors against media fragmentation. Epagogix tries to find the movie scripts that will appeal to wide audiences. Now James Frey is assembling writers, Andy Warhol factory-style, to try find the next Twilight:

This is the essence of the terms being offered by Frey’s company Full Fathom Five: In exchange for delivering a finished book within a set number of months, the writer would receive $250 (some contracts allowed for another $250 upon completion), along with a percentage of all revenue generated by the project, including television, film, and merchandise rights—30 percent if the idea was originally Frey’s, 40 percent if it was originally the writer’s. The writer would be financially responsible for any legal action brought against the book but would not own its copyright.

Full Fathom Five could use the writer’s name or a pseudonym without his or her permission, even if the writer was no longer involved with the series, and the company could substitute the writer’s full name for a pseudonym at any point in the future. The writer was forbidden from signing contracts that would “conflict” with the project; what that might be wasn’t specified. The writer would not have approval over his or her publicity, pictures, or biographical materials. There was a $50,000 penalty if the writer publicly admitted to working with Full Fathom Five without permission.

At this point, perhaps a purely mechanized “writing program” would be a better approach for Frey. Kurzweil’s patented a poetry generator, and the Dada Engine can use recursive grammars to compose text. Whatever the method, I have a sense that the story of the motivations of the creator of the writing machine/collective will always be more interesting than whatever it manages to produce (just like the NYM article about Frey’s work is more interesting than Frey’s company, and Richard Powers’s Galatea 2.2 won’t be surpassed by the machines it describes.). The article mentions that Frey is inspired by artists—I wonder if one of them is Jean Tinguely?

Image Credit: Photo of Dadaist sculpture by acb.

Share of capital income earned by top 1% and bottom 80%, 1979-2003

Within the US, many factors may explain the “great divergence” in incomes, including trade, immigration, technology, government policy, and education. It’s difficult to tease out the relative impact of these factors. [...]]]>

Share of capital income earned by top 1% and bottom 80%, 1979-2003

Within the US, many factors may explain the “great divergence” in incomes, including trade, immigration, technology, government policy, and education. It’s difficult to tease out the relative impact of these factors. There are confounding variables, and a factor that may be extremely important in one sector could be unimportant in others. But it’s worth focusing on at least two developments: the vast growth of the global labor force over the past two decades (as formerly command economies opened up for global investment), and the steady increase in CEO and Wall Street income over the past forty years. Both have caused (and are still causing) a hollowing out of many developed countries’ middle classes. A 2008 HBS study indicated that up to 42 percent (57.2 million) US jobs are offshorable, including “high-skill jobs such as financial analyst and microbiologist.”

This global pool of labor gives many of those at the top of business organizations strong bargaining power vis a vis their immediate subordinates, who, in turn, enjoy strong bargaining power vis a vis their own immediate subordinates. If CEO has VP’s A, B, and C, and each VP has employees 1 through 10, etc., each VP is going to be competing to reduce costs. Oftentimes the easiest way to do so is to reduce the pay of subordinates, or lay them off. (Indeed, a recent study finds tremendous returns to CEO’s for engaging in layoffs.) Note that this kind of cost-cutting isn’t exactly rocket science, as Sam Pizzigatti suggests in his skewering of ex-H-P CEO Mark Hurd:

[W]hat “rare” talent did Hurd actually demonstrate? Does slashing R&D demand [expertise]? Are CEOs who can wheel and deal their way to one job-killing merger after another few and far between? . . . Hurd demonstrated no special talent. His basic merge-and-purge business plan at HP made sense only as a personal enrichment strategy.

Or as an effort to enrich shareholders, a group whose gains are notoriously skewed to the wealthiest. Wall Street has taken an ample cut of the financial gains of investors, and financial firms have enjoyed a generally rising share of all corporate sector profits. There, again, desert is disputed: “in July, Kenneth R. Feinberg . . . said that nearly 80 percent of the $2 billion in 2008 bonus pay was unmerited.” Simon Johnson and James Kwak explore financiers’ power in great detail in 13 Bankers; suffice it to say for now that much pre-bust compensation resulted from decisions to “pay themselves more than their firms [were] worth and then default on their debt obligations.”

I think a key takeaway here is recognizing the extraordinary role that power plays in determining distributions of income. Buoyed by a great global pool of labor, CEOs of the 2000s were much less constrained than CEOs of the 1950s, and that’s one key reason why they made between 300 to 400 times their average worker’s pay in the later period.* Finance firms saw their campaign contributions richly rewarded. Yes, one can make better and worse staffing decisions at the top of a company, or investment decisions at a Wall Street firm. But the decisive factor permitting runaway incomes at the top is relative power. If that power further infiltrates politics, expect the “great divergence” to accelerate.

*An American CEO in 1960 could only expect to make about 50 times his average worker’s pay, and Japanese CEOs presently make far less than their US counterparts. Current US CEO pay appears to be an anomaly both temporally and cross-nationally.

Hat Tip: Andrew Sullivan.

Image Credit: From G. William Domhoff.

Sadly for academics, the best social theorists of the information age are still science fiction writers and, in particular cyberpunks—the originators of the phrase ‘cyberspace’ and the premier fantasists of the Net. If one wants to understand the information age, this is a good place to start.

Some legal academics have taken this idea to heart; for example, Richard Posner apparently began writing Catastrophe in [...]]]> William Gibson’s essay on “Google’s Earth” deserves to be read by anyone interested in the “future of the internet.” Gibson states that “cyberspace has everted. . . . and [c]olonized the physical”, “[m]aking Google a central and evolving structural unit not only of the architecture of cyberspace, but of the world.” He’s reminded me of James Boyle’s observation that:

Sadly for academics, the best social theorists of the information age are still science fiction writers and, in particular cyberpunks—the originators of the phrase ‘cyberspace’ and the premier fantasists of the Net. If one wants to understand the information age, this is a good place to start.

Some legal academics have taken this idea to heart; for example, Richard Posner apparently began writing Catastrophe in response to Margaret Atwood’s Oryx and Crake. With that in mind, I wanted to point to some speculative fiction that I think ought to inform our sense of “the future of the internet.”

Zittrain’s take on reputation bankruptcy in pervasively networked environments feels a bit too whiggish to me. His work is informed by a pragmatic lawyer’s sensibility, inspired by the methods of economics and engineering to maximize benefits and minimize costs. By contrast, speculative novelists engage in a literary version of what might be called “scenario planning” in social science or business. They imagine how a variety of economic, cultural, political, and other developments may interact. Rob Verchick’s book Facing Catastrophe describes the relative advantage of scenario planning over cost benefit analysis in certain situations:

Cost-benefit approaches provide poor measures when they depend on forecasting too many long-term and uncertain costs. . . . .[S]cenario planning broadens knowledge by taking a holistic approach to describing circumstances. . . . .The strong emphasis on narrative allows the technique to capture a problem in its full complexity. (242)

Roger Boesche’s essay Why Could Tocqueville Predict So Well? describes a similar capability in the great French social theorist. As Boesche relates, in Tocqueville’s works, “society is an ‘ensemble’ in which the elements are ‘indissolubly united:’”

[T]he second volume of Democracy in America endeavors to demonstrate how language, literature, the relations of masters and servants, the status of women, the family, property, politics, and so forth, must change and align themselves in a new, symbiotic configuration as a result of the historical thrust toward equality.

In our own time, we need something of a reverse Tocqueville to describe the consequences of a historical thrust toward inequality. How might that larger social force affect reputation online?

One of the most imaginative takes on this problem is Gary Shteyngart’s Supersad True Love Story, which projects the lived experience of persons experiencing pervasively computed reputation in a future America. As one reviewer explains,

[The America] of the novel [includes credit] scores [that] are publicly available on screens posted on every street and can always be checked on the devices everyone carries[.] [These] instruments . . . work like iPhones designed for Orwell, providing instant background checks on anyone you might like to know, along with helpful ratings like that of your perceived desirability for sex or anything else as compared to other members of the group you’re in.

Of course this type of information has implications for “the status of women, the family, property, politics, and so forth” (to use Boesche’s categories), which in turn influence what is and is not included in reputational reports. Shteyngart’s protagonist, Lenny Abramov, relates that his employer has placed “five gigantic Solari schedule boards” in the office. The boards:

[D]isplayed the names of . . . employees, along with the results of our latest physicals . . . our fasting insulin and triglycerides, and, most important, our ‘mood + stress indicators,’ which were always supposed to read ‘positive/playful/ready to contribute,’ but which, with enough input from competitive co-workers, could be changed to ‘one moody betch today” or ‘not a team playa this month.’ On this particular day . . . one unfortunate Aiden M. was lowered from ‘overcoming the loss of loved one’ to ‘letting personal life interfere with job.’ (57-58)

Sober-minded lawyers might dismiss this scenario: whatever happened to HIPAA? But as more corporations tell employees to “get healthy—or else,” this possible future (complete with hip and snarky categories of merit and demotion) doesn’t seem all that far off. What Shteyngart reminds us is that the demands of work are quite flexible, and always-evolving. Without a robust societal sense of the proper realm of private experience, economic imperatives are likely to shrink it inexorably. Unlike the film Gattaca, where extant social structures somehow persist in the wake of massive changes in enhancement technology, Shteyngart’s novel describes a world where relatively small changes in self-concept, media use, and aspiration in an elite can fundamentally destabilize conceptions of privacy.

When we start thinking deeply about Shteyngart’s narrative (or Cory Doctorow’s scenarios in Little Brother and Scroogled), we can better compare Zittrain’s “bankruptcy fix” to Google CEO Eric Schmidt’s related suggestions. As William Gibson explains,

[Schmidt's] suggestion that young people who catastrophically expose their private lives via social networking sites might need to be granted a name change and a fresh identity as adults. . . . is a matter of Google letting societal chips fall where they may, to be tidied by lawmakers and legislation as best they can, while the erection of new world architecture continues apace. . . .Childhoodlessness, being obviously suspect on a résumé, would give birth to an industry providing faux adolescences, expensively retro-inserted, the creation of which would gainfully employ a great many writers of fiction. So there would be a silver lining of sorts.

To be sure, I don’t find this a very realistic idea . . . I imagine that those who are indiscreet on the Web will continue to have to make the best of it, while sharper cookies, pocketing nyms and proxy cascades (as sharper cookies already do), slouch toward an ever more Googleable future, one in which Google, to some even greater extent than it does now, helps us decide what we’ll do next.

Like Gibson, I find the scenario of retro-inserted faux bios unlikely. Shteyngart’s depiction of a reputation rat race (a Weberian iPhone cage?) is far more gripping. To think more clearly about the Future of the Internet, we will have to complement the engineering and economics literatures with works of narrative, “soft” social science, and direct reports on the lived experience of those grappling with technological change.