Archive for the ‘Sociology of Law’ Category

A Proposed Study To Measure Law Clerk Influence

posted by Dave Hoffman

Citation studies as a proxy for judicial quality are all the rage.  I concur with Larry that the effort spent often seems disproportionate to the result.  Selection is the culprit here, not just academic modesty: it’s hard to imagine that any truly dramatic effects of judicial character, or legal rule, would not be washed away by parties’ ability to settle strategically.

Exogenous shocks open windows – of limited scope – which may help us penetrate this fog.  There’s one ongoing today that I think could in several years allow us to test one of the most important, but obscure, questions about judicial performance.  Although there have been a few studies about the usage, hiring, and quality of law clerks, I haven’t seen work that really convinces me that clerks change judicial performance (rather than match it).  That question of influence is pretty important for all kinds of reasons — not least because if law clerks were really influencing their judges, we might want to spend a little bit more time thinking about their roles, ethics, hiring, etc.

So what’s the shock?  I think that the period of 2008-2011 will prove, in retrospect, to be bumper years for clerk quality.  Anecdotally, I’ve heard that the clerkship market has never been more competitive: Yale grads have been encouraged to take state court clerkships (the horror); judges in popular jurisdictions are receiving literally four to five thousand applications per clerk year; individuals who before might have taken firm jobs are instead throwing their hats in the ring; magistrate judges are taking clerks previously destined for district judges; alumni in practice for five years are going back into the clerk market and competing with fresh-faced 3Ls.  As an organ of the government, the judiciary simply eats better brains when the economy stinks.

Assuming the effect is real (which we could test by looking at placement statistics), I’d propose that eight to ten years from now – in 2018 or thereabouts – we test whether opinions arising from this bumper-clerk period are cited at a higher rate than opinions from the ordinary market periods immediately preceding and following.  The hypothesis would be that if clerks influence judges to write better opinions, better clerks will produce to more citable opinions.  Notably, we can’t perform this same analysis on the effect of past recessions, as (1) they reportedly didn’t have the same effects on the clerkship market; and (2) opinion collection practices were really sporadic before 1995.  It’s 2018 or bust.  Mitu et al., I call dibs!

  October 7, 2009 at 8:34 am   Posted in: Behavioral Law and Economics, Economic Analysis of Law, Empirical Analysis of Law, Sociology of Law   Print This Post   12 Comments

Umpires Don’t Make Law, Players Do.

posted by Dave Hoffman

Via Deadspin comes this great video of Joe Mauer, apparently reading the catcher’s signs and relaying them to batter Jason Kubel.

Putting aside Mauer’s denial, the interesting thing about this is whether it’s actually wrong to steal signs. There’s no rule against it, and so the answer is: it depends on the players’ perceptions of the situation. If you run afoul of the norm (i.e., a batter looking behind him) then you are likely to face informal sanctions in the form of a baseball to the body. Mauer’s sign-stealing, by contrast, seems acceptable: (1) it was a crucial game; and (2) the Tigers didn’t protect their signs despite knowing a man was on second. But it isn’t so acceptable that he can admit it publicly. That is: Mauer’s sign stealing was at once lawful, permitted in the social context, and publicly wrongful.

(H/T: Reader CDP. For more on the history of sign-stealing in baseball, check out The Echoing Green: The Untold Story of Bobby Thomson, Ralph Branca and the Shot Heard Round the World)

  October 2, 2009 at 8:49 am   Posted in: Criminal Law, Culture, Current Events, Sociology of Law   Print This Post   6 Comments

Circumcision and HIV

posted by Sarah Waldeck

Both The Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP) are considering whether to recommend routine infant male circumcision as a means of reducing the spread of HIV.  For me, the debate is a reminder of how the medical practice is deeply intertwined with societal norms.   One example illustrates the point:  American-born parents would dismiss as ridiculous (or worse) the suggestion that they cut off part of their infant daughter’s clitoris to help prevent HIV.

First, the science.  Clinical trials in Africa have found that circumcision reduces a heterosexual man’s risk of contracting HIV from an infected female by up to 60 percent.  It is unclear whether circumcision reduces the risk that a woman will contract HIV from an infected male and “little to no evidence” that it reduces the spread of HIV between homosexual male partners.  But if circumcision reduces the overall prevalence of HIV among heterosexual males, that might ultimately lower the risk among other populations, particularly women.   As for why circumcision status matters, most likely the foreskin tissue is more susceptible to HIV than other parts of the penis.   (You can read more about the science here.)

Circumcision opponents argue that at most circumcision reduces risk.   It does not prevent infection and no-one would suggest that circumcised males do not need condoms.    They further argue that HIV spread patterns are different in the United States than in the parts of Africa where the studies were conducted; that American and African health systems are worlds apart; and that  homosexual males are the individuals most at risk in the United States.   They can also point to studies which challenge or contradict the finding that circumcision reduces the risk of a heterosexual male contracting HIV from an infected female.  At present, however, opponents of circumcision appear to be losing the medical battle. 

All of this must be terribly frustrating for those who advocate non-circumcision.   First, they are well aware of the American medical establishment’s history of promoting circumcision as a means of combating a variety of conditions (my own favorites are the Victorian examples of bowleggedness and masturbation).   Second, in recent decades circumcision opponents have achieved some  partial victories.  The current AAP recommendations are neutral on the question whether to  circumcise infant males .  The national circumcision rate has fallen to less than 65 percent from a high of more than 80 percent, with rates far below 50 percent in a few Western states.   The cumulative result of many different policies that have the effect of discouraging circumcision—most notably, the refusal of many insurance companies to pay for the procedure—meant that non-circumcision may have been creeping, slowly, toward a tipping point.  Indeed, this post originally had a sentence about how a woman of my demographic (white, Midwestern) was statistically unlikely to ever have seen an uncircumcised penis.  But then I realized that I have seen some in recent years, in the locker room at my gym where many mothers dress their young sons.    Read the rest of this post »

  August 25, 2009 at 8:09 pm   Posted in: Culture, Sociology of Law   Print This Post   3 Comments

The Public and Private Goods Produced By Litigation

posted by Dave Hoffman

Eugene Volokh (among many others) recently posted the opinions in Klein v. Amtrak, the now famous EDPA unpublication case involving a settlement that led to the vacating of eight defense-unfriendly district court opinions.  Although commentators across the web seemed surprised, in my experience the practice of asking a judge to vacate an opinion that produced a settlement is fairly common – this particular instance is only a small variant on the ordinary case.  But Klein provides the opportunity to reflect on some of the unexpected benefits that we get from our ridiculous court system.

The obvious one is that judicial opinions are the public good that the parties prompt society to buy.  The price we would pay for any kind of litigation reform would be fewer public decisions, and thus more uncertainty of the kind that unpublication like Klein promotes. The Third Circuit in particular was known for years for having very thin law  – indeed, the late Chief Judge Eddie Becker of the Circuit famously led a one-man crusade against the dearth of law by writing copious dicta.  The certainty that we get from having opinions strongly suggests that we should resist private attempts to keep the law secret – and should be similarly skeptical of the courts’ unwillingness to free PACER. Here, it appears merely that Judge Stengel asked WL and LEXIS to remove his opinions from his databases.  Thus, like 80% of all substantive orders, they are on the docket, but aren’t available to the general public.

There’s an additional private benefit that accompanies litigation which is less illuminated by Klein: the parties get to communicate with one another.  Given a regulatory regime that prohibits competitor contact, litigation can be the best way for companies to talk to one another (through discovery and signalling about which positions to take).  That litigation-mediated-communication is one reason why some companies might prefer to continue to fight in the public system, rather than in commercial arbitration, where their ability to get discovery may be limited.  Again, this isn’t to say that all lawsuits are worth the time and expense that the public invests in settling them, but it does suggest that litigation reform needs to account for these substantial litigation spillovers.

  August 20, 2009 at 8:50 pm   Posted in: Civil Procedure, Empirical Analysis of Law, Government Secrecy, Sociology of Law   Print This Post   One Comment

Opening Up the Law: Pacer, CITP, and the RECAP the Law Project

posted by Deven Desai

As some of you know I am a Visiting Fellow this year at Princeton’s Center for Information Technology Policy. When I arrived a couple weeks ago, I heard about a project in the works and have been dying to tell people about it. It is now live and looks great. It is called RECAP and just may change the way people access a major part of the law. We’re talking about the law that lurks outside cases; the actual guts of litigation.

Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated each and every day. Court documents are essentially public documents (there are times when papers are sealed etc., but that is a separate matter). The government runs a system called PACER that allows one to search for and access U.S. Appellate, District, and Bankruptcy court records and documents. But as the Washington Post explains, “The fee to access PACER is $0.08 per page: ‘The per page charge applies to the number of pages that results from any search, including a search that yields no matches (one page for no matches.) The charge applies whether or not pages are printed, viewed, or downloaded.’ For people who do a lot of legal research, those fees add up quickly.”

In an era of transparent government, open source, and access-to-knowledge movements, it was only a matter of time before someone decided to find a way to make court documents available on a broader basis. The folks at Stanford have the IP Litigation Clearing House. That project aims to fill the “critical need for a comprehensive, online resource for scholars, policy makers, industry, lawyers, and litigation support firms in the field of intellectual property litigation.” That project has 23,000 documents and is growing. Pretty darn good, if you ask me. But wait; don’t order yet! Now comes RECAP from the folks at Princeton’s Center for Information Technology Policy. (Specifically, Harlan Yu, Steve Schultze, and Timothy B. Lee developed the project which is led by Prof. Ed Felten). Here is the link to the About Page, but let me tell you a little more.

CITP’s Harlan Yu explains:

RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive.

In addition, if one is using PACER and RECAP “The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository.” So when one searches for a document, one is notified about the availability of a free copy of the document.

There is probably much more to say here, but for now I want to congratulate the folks here at CITP on a great idea that uses information, technology, law, and policy to craft an elegant solution to increasing government transparency. This resource should feed almost anyone interested in practicing or studying the law. Empirical researchers alone should be drooling at this new wealth of information.

  August 14, 2009 at 6:06 am  Tags: access to knowledge, access to law, open source, PACER, RECAP  Posted in: Civil Procedure, Constitutional Law, Cyberlaw, Intellectual Property, Sociology of Law, Technology, Web 2.0   Print This Post   7 Comments

Why Not A Supreme Empiricist?

posted by Dave Hoffman

In the last post, I suggested that  we shouldn’t be selecting for judicial smartness, at least standing alone.  Here, I’d like to add my two cents to the pile of unsolicited, and likely unused, advice for the Obama vetting team.  The Administration should give some thought to picking a Justice who has prior background working with statistics, data collection, and more general empirical methods.

The footnote 17 debacle is, of course, a recent and salient example of how the Court can go wrong when evaluating empirical work:

“Cornell law professor Jeffrey Rachlinski told the Times that [Ted]  Eisenberg’s study shows “punitive damages are pretty orderly,” yet Souter did not seem to think any studies had proven that point.

The Times asked Eisenberg for his reaction and summarized his response this way: “Professor Eisenberg struggled to stay respectful about the court’s approach to his work, saying he had been flattered to be cited at all. He finally settled on this phrase: ‘I believe the court went seriously astray’ in concluding that his work supported a reduced award.”

Statistical problems before the Court aren’t new – Brown & McClesky both come to mind – but it is likely that the Court will face increasingly sophisticated empirical methods  in briefs over the next generation. Not only has the Supreme Court bar gotten much more sophisticated, but so have the underlying methods in empirical legal scholarship. As methods grow more sophisticated, it becomes harder for judges to play referees, since the errors (if any) in the parties’ positions are more subtle.  A Justice who could be an intelligent consumer of empirical work, rather than a credulous user, would be a huge bonus.

That’s not the same as saying that a Ph.D. in stats, or political science, ought to be a credential.  Lawyers who have litigated complicated employment, antitrust, or securities cases have to deal with statistics experts and are well exposed to the kinds of questions that need to be asked about their analyses.  To a lesser extent, so are judges who have sat on such  large commercial cases.  The point is that at least some exposure in statistics and social science techniques is quickly becoming part of a well-rounded legal education. It should also be part of what we look for in a Justice.

[Update: Michael Heise has more.]

  May 6, 2009 at 7:47 pm   Posted in: Empirical Analysis of Law, Sociology of Law, Supreme Court   Print This Post   2 Comments

Smart. Smart! Smart?

posted by Dave Hoffman

One of the least attractive aspects of professional training in law is the tendency to equate smartness with judgment, and judgment with virtue.  Though law school doesn’t tend to reward either judgment or virtue, law practice does – and, more significantly, correlates effort and success in a way that the First Year Exam system rarely does.

It’s therefore unfortunate that the debate over Judge Sotomayor’s qualifications to be a Justice has turned to questions about her brilliance.  Rob Kar, in her defense, writes:

“Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.)  Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison.”

I’m not sure that Prof. Kar is entirely serious here, but his post was picked up by TPM in its influential roundup, which noted the spreading of the idea that Sotomayor was “too temperamental–and not intelligent enough–” to be a Justice.

There’s plenty wrong with this mindset. Not least, as Bill Stuntz points out, “[intellectual] horsepower alone isn’t enough to produce a lasting impact on the law.” Vivid writing matters, as does judgment, and an appropriate sense of judicial role and temperment.  And, since the Justices are the highest profile lawyers in the country, so does personal history and demographics: lawyers should have professional models, to guide them in making hard decisions in the absence of judicial oversight.

As Orin points out, the quality of the information we use to evaluate the smartness of judges is terrible.  So why the focus?  I blame the Socratic Method, which teaches young lawyers that being a good lawyer is the same thing as being a good debater: quick, witty, cutting, etc.  We don’t want the smartest justice.  We want the wisest.  Or at least someone who understands that smartness correlates with wisdom about as well as law does to justice.

  May 6, 2009 at 6:13 pm   Posted in: Constitutional Law, Jurisprudence, Sociology of Law, Supreme Court, Uncategorized   Print This Post   7 Comments

Exploring Commons Institutions

posted by Michael Madison

Thanks to Deven for the generous introduction and to Dan and the Co-Op team for inviting me to spend some time here this month.  The introduction intentionally saves space by not including a couple of things that I’ll talk about during my stay:  My other blogs, and my appointment as Research Dean at Pitt.  Both have something to do with my current work on commons institutions.  Over the course of this guest stint I hope to explain some of the connections and to generate suggestions and feedback that might help me see others.

 

Read the rest of this post »

  May 6, 2009 at 8:08 am   Posted in: Blogging, Intellectual Property, Law School (Scholarship), Property Law, Sociology of Law, Technology   Print This Post   One Comment

Rational Actors and the Economic Crisis

posted by Dave Hoffman

I missed this when it originally happened, but you should read Richard Posner’s take on the financial crisis, as delivered to Columbia law students.

Posner devoted the bulk of his presentation to outlining the myriad motivations behind the excessive risks. What disturbs him most, he said, is that all of the risk-takers – from CEOs to the day traders to home buyers – were behaving rationally, which free-marketers such as Posner generally believe should act as a bulwark to protect against such catastrophes.

The bankers, for example, were rational in betting on mortgage-backed securities and other housing-related investments, even long after they recognized that their entire industry was, in fact, standing deeply inside an enormous, overstretched bubble. “Even if you know you’re in a bubble, it’s extremely difficult to get out,” said Posner. Pulling up stakes before the bubble explodes means telling investors to expect smaller short-terms rewards. “I think that is a very hard sell,” he said.

Besides, Posner added, when investors want to balance their portfolios, they will do it themselves with, say, bonds or treasuries. The purpose of the high-risk funds is to take the high risks necessary to generate the outsized profits.

Posner also cited the win-win structure of most top executives’ contracts: If their high-risk decisions result in big gains they receive huge bonuses, and if the gambles fail they result in huge severance packages. He noted the $161.5 million awarded last year to outgoing Merrill Lynch chief Stanley O’Neil. “Very, very generous compensation incentivizes executives to maximize their short-term profits,” he added.

Boards of directors, Posner lamented, are hardly “reliable agents of shareholders.” With compensation in the high six-figures for positions that require them to attend only a few meetings per year, board members would need to act against their own self-interest to contest a CEO’s plus-size salary – which wouldn’t exactly be rational.

“This is rational behavior. This is troublesome for economists,” Posner said. “You can have rationality and you can have competition, and you can still have disasters.”

Though he said he wanted to end the presentation on a high note, Posner seemed to have trouble finding one.

There is much here to agree with, particular Judge Posner’s skepticism about the efficacy of regulation. But I’m not as convinced (as he is) that this story is best explained as a failure of perfectly maximizing actors. Indeed, as the story describes his position, it sounds like many of the agents were not maximizing at all. Why, for instance, could bankers not convince (purported) rational investors that we were in a bubble? The best reason, which Posner hints at, is overoptimism bias. Why aren’t executives’ contracts structured for long-term return instead of short-term profit taking? Wouldn’t rational boards and rational executives prefer a smooth future income stream? I’ve got to think that a rich account of compensation behavior would take into account both the tournament effect and risk aversion. And why isn’t there a better market for board members? Could it be some kind of bias against out-groups?

  December 8, 2008 at 2:06 pm   Posted in: Behavioral Law and Economics, Corporate Finance, Corporate Law, Sociology of Law   Print This Post   3 Comments

Oft-Overlooked Legal Writing Genres

posted by Miriam Cherry

After considering statutory poetry, consider these other muted, oft-overlooked legal writing genres:

The Law Review Cover Letter. Goal of the author: Sell your article to the law review. This article is novel, fun, it will change the world, revolutionize the genre, become more popular than all the rest of the articles in the pile, no, more popular than any law review article ever. It will garner the journal ooodles of citations, thus leapfrogging the journal over everyone else on the W&L law review rankings website. Oh, and simultaneously, the author needs to say all of that modestly, without sounding like a pompous egotistical windbag, because the goal isn’t to have the law review editors burst out into riotous laughter. (Good luck!)

The NastyGram. More the stock in trade of practicing attorneys, rather than lawprofs, the goal here is to make the person reading it have a really, really, really bad morning/afternoon/evening. My favorite nastygram, actually, wasn’t written by an attorney, but rather by Frank McCourt as a child in Angela’s Ashes. He pens a dunning letter for a local seamstress. In the course of the letter, he employs the words “inasmuch,” threatens that the debtor will “languish in the dungeons of Limerick jail,” and ends with the signature line, “Yours, in litigious anticipation,” the perfect closing line for a nastygram.

I’ll have more on other overlooked genres in another forthcoming post.

  October 22, 2008 at 2:38 pm   Posted in: Sociology of Law   Print This Post   No Comments

Judge Kozinski: The First Amendment Is Dead

posted by Dave Hoffman

Judge Alex Kozinski came to Temple this afternoon and delivered the Arlin Adams lecture, on “The Late, Great First Amendment.” Typically provocative, Kozinski argued that individuals’ inability to bring effective lawsuits for internet speech renders obsolete existing First Amendment doctrine. In his view, traditional First Amendment doctrine had promoted an informed democratic discourse by maintaining a threat – though remote – of the possibility of recovery for libel, defamation, copyright infringement, trademark infringement, and spreading protected national secrets. By contrast, given the Streisand effect and Wikileaks’ portability and thus immunity, the modern world provides no effective remedies for unprotected speech.

Without liability pressure disciplining the speaking market, Kozinski sketched out a distopian lemons market for speech: untrusted intermediaries, unreported international and national news, and a cacophony of speakers saying little of interest.

I’m running off to class now, so I don’t have time for an extended analysis, but it strikes me that Kozinski’s eulogy for the First Amendment was premature for at least three reasons: (1) the kind of mass media he mourned – protected by a prior restraint doctrine and fattened by classified ads – is the exception and not the norm in our tradition, so any conclusions relying on the Amendment’s relationship to the particular character of the news media seem overdrawn; (2) as my colleague David Post pointed out, there are strong economic reasons for online intermediaries to establish transparent reputations for honesty – that is, technical warranties ought to solve the lemons problem; (3) speech may be governed by law even if plaintiffs can’t effectively enforce available legal rules. Think international law. Or, closer to home, think about the duty of care in Delaware. No one really believes that corporate actors are acting according to their whim and fancy despite facing no remedy for their negligence. If the First Amendment has no downside teeth, it can still create sticky norms.

As I said, a great speech. It featured references to David Lat & the Volokh Conspiracy, among others. But not CoOp. Maybe we ought to be running a hotties contest.

More later (maybe.)

  October 20, 2008 at 6:33 pm   Posted in: Anonymity, Civil Rights, Constitutional Law, First Amendment, Social Network Websites, Sociology of Law, Web 2.0   Print This Post   11 Comments

Loan Repayment Plans for Judges?

posted by Neil Buchanan

One of the most welcome initiatives in U.S. law schools over the last decade or so has been the creation of LRAPs, or Loan Repayment Assistance Programs, which subsidize (by delaying or reducing payments on student loans) recent law school graduates who work in an approved list of jobs. Those jobs are generally referred to as “public interest employment” and are, therefore, rather low paying — especially by comparison to the positions in large law firms that so many law students seek. Many students who take the higher paying jobs will tell you that they feel boxed in, forced to take higher-paying jobs simply to pay off their student loans, even thought they’d really rather work in the public interest. Law schools responded with LRAP programs. Makes sense.

Given that LRAPs cost the law schools money, the difficulty lies in deciding who is most deserving of the limited dollars available for these subsidies. Beyond the obvious starting point of limiting the pool of potential recipients to those who accept lower-paying jobs, however, some difficult questions arise.

Read the rest of this post »

  September 11, 2008 at 1:55 pm   Posted in: Law School, Sociology of Law   Print This Post   2 Comments

Occupational Hazards: Lawyers and Economists

posted by Neil Buchanan

My thanks to Dan Solove for inviting me to be a guest blogger on Concurring Opinions this month, providing an additional outlet for my blogging interests beyond my usual gig on Dorf on Law. As a way of introducing myself, I thought I would answer the question that virtually every law professor has asked me since I migrated from being an economics professor to a law professor: What is different about economists and lawyers?

The question, of course, invites generalities and over-simplifications — an invitation that I do not decline when asked the question and will certainly not decline here. Admitting that there are a million exceptions to every rule, I do believe that there is one predictable type of error toward which legal training seems to push people, and there is a different error toward which economics training tends to push other people. To put the point slightly differently, lawyers and economists have very different tendencies when approaching a problem or a question. These tendencies, or occupational hazards, can of course be overcome. Still, I have found them to be surprisingly reliable traits of the two professional minds. To put my answer simply: Lawyers look for black-and-white answers, while economists too often forget the limitations of their models.

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  September 3, 2008 at 9:00 am   Posted in: Economic Analysis of Law, Sociology of Law   Print This Post   6 Comments

My Day of Jury Service

posted by Dave Hoffman

I spent part of today earning $9 by participating in jury duty in Philadelphia’s First Judicial District. Not surprisingly, my ticket wasn’t golden after all, and I didn’t get picked. Indeed, my panel never even saw a judge, as the case pled out after a long delay. But the experience was still incredibly well-organized and professional, and surprisingly informed by psychological research:

• Paying Attention to Potential Bias: During the plea-delay, we were told that there was a “problem” in the courtroom relating to another matter. Later, a court officer sheepishly explained that he’d been lying, but said that “research had shown” that juries told that a plea was being negotiated would be unable to be free of bias should it fall through. This sounds exactly right to me. Of course, since there was no chance I’d be picked, my standing to object to the deceit is probably weak.
• The Amenities: So $9 sounds like a trifling amount, and it is. It should be replaced with a lucrative lottery. But at least Philadelphia has managed to maintain a nice building, with clean seats, snacks, coffee, a dedicated elevator for transfers between rooms, well-produced and well-intentioned civics videos, and discounts at the neighboring Reading Terminal Market for lunch. The civil staff were friendly and made jokes, some of which were funny. I’m sure that some gripe about the missing internet access, or forfeited cellphones, but this strikes me as Yuppie nonsense. To make jury service better, you should pay people more. Otherwise, give them a clean space, caffeine, and try to make sausage quicker.

It was the kind of experience that I think should have increased participants’ trust and appreciation for the civil justice system. The officers and staff of the District aren’t paid that well, and certainly don’t get compensated more for being pleasant to jurors. But they, not lawyers and judges, are the face of the justice system for the majority of citizens, who show up and don’t get picked. The System had a good day today, at least by my lights.

(And, yes, we did get out early, which probably influenced my benign views of an otherwise wasted day.)

  July 7, 2008 at 7:59 pm   Posted in: Sociology of Law   Print This Post   2 Comments

Oddities from Docketland

posted by Dave Hoffman

I’m hip deep in my latest docketology project, which, on my end, involves organizing lots of RAs who read many dockets and code them. Apart from the $10/hr wage, and the occasional lunch, the only thing my RA team gets in return for spending too much time on this tedious task is the chance to see a few small nuggets of random nuttiness emerging from the glorious mess that is our litigation system. Take, for example, this claim:

“TRAVEL BARGAINS USA is reasonably assumed to have a Corporate Charter or otherwise a Mission Statement which does not include as part of its ordinary Charter the act of threatening such other business entities as Plaintiff A VACATION 4 YOU, by, for example, stating that You’re up shits creek because if you do not honor the certificates, or refund our money in full on the distributorship, we WILL put you out of business. It will only take a few complaints from people. You started this war, and now you have to deal with ME! “

Of course, such nutbar pleading rarely survives judicial scrutiny. It’s thus a surprise to see one particular set of phrases repeated in over a dozen totally distinct, veil piercing cases:

“Any character assassination will activate Instrumentality Rule and pierce the corporate veil of the United States and all agencies,”

and

“All testimony will be without immunity – piercing the corporate veil and Instrumentality Rule.”

My RAs and I have tracked this language, which sometimes appears in a counterclaim and sometimes in the complaint, to The Court Watcher’s document page, which lists a “counter-claim“. That document, in turn, appears to suggest that filers ought to check to see if the other side has violated any particular provisions of the declaration of independance as a way to frame their pleading. I particularly like the following form paragraph:

“Was there a treaty or alliance or letter of Marque and reprisal imposed against you by the public servant? __ Yes __ No Explain”

A letter of marque? Avast mateys!

  July 7, 2008 at 1:08 pm   Posted in: Civil Procedure, Law School (Scholarship), Sociology of Law   Print This Post   One Comment

Do We Need an Internet Ed. Class?

posted by Deven Desai

While I was attending the excellent privacy conference Dan Solove and Chris Hoofnagle organized in D.C. a few days ago, it occurred to me that just as one takes driver’s ed. before being able to drive a car, it might make sense to have a required Internet Education class in middle school. Driving is a key way people engage in the economy, and the Internet, especially email and social networking use, is becoming as essential if not more so. Given all the benefits and problems of the Internet from meeting new people and peer production to unfortunate gossiping and dog poop events, it dawned on me that Internet Ed. might fill a gap that appeared as I listened to various people at the conference.

Read the rest of this post »

  June 18, 2008 at 10:13 am   Posted in: Privacy, Privacy (Consumer Privacy), Sociology of Law, Technology, Web 2.0   Print This Post   4 Comments

Ranking State Courts

posted by Dave Hoffman

Choi, Gulati & Posner have posted an amazing new article on SSRN, Which States Have the Best (and Worst) High Courts?

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with those of other scholars and the U.S. Chamber of Commerce, whose influential rankings are based on surveys of lawyers at big corporations.

There’s lots of great, nuanced, analysis in the paper, and a particular emphasis on how congruence & dissonance in ranking systems may help readers/consumers/lawyers better evaluate & build institutions. Of particular interest to readers of California’s gay marriage decision will be the overall, summary, analysis from pages 23-25 of the paper:

“No state emerges as a clear winner, but a strong case can be made that California has the best high court. It has the most #1 rankings on the triangle chart, and the most #1-3 rankings, and is tied for the most #1-5 rankings . . . The top contenders are Arkansas, North Dakota, Montana, and Georgia. If one focuses on common law cases . . . then Mississippi, Rhode Island, and Alabama emerge as the top states. The strong performance of southern states is a bit of a surprise.”

Fun stuff. I wonder what would happen if people drilled deeper and analyzed the relative performance (and influence?) of state trial courts. After all, the trial courts are where the action is, even though studying them is a tremendous pain.

(H/T: Legal Theory Blog)

  May 19, 2008 at 4:56 pm   Posted in: Economic Analysis of Law, Jurisprudence, Sociology of Law   Print This Post   2 Comments

The Neuroimaging of Persuasion: Selling Babies

posted by Dave Hoffman

I’ve argued (here, here, & here) that there is a gap between how jurists generally imagine that consumers behave (and should be protected) and the technological tools available to clever marketers. The slogan I’ve come up with is total persuasion: “a society in which most speech that you hear is designed to persuade you to consume.”

Today’s W$J offers an interesting article along this line. According to researchers at Oxford, we’re hard-wired to respond to baby faces in positive ways:

Using a technique called magneto-encephalography that measures brain signals, the Oxford researchers found that a baby’s face can seize our attention in milliseconds, activating an unusual mental organ called the fusiform gyrus that responds to human faces. Moreover, these distinctive infant features, unlike the mature features of an adult, trigger a sense of reward and good feeling in a seventh of a second. Picture Bambi’s saucer-size eyes or those of Mickey Mouse.

And from later in the article:

Through brain-scanning experiments, researchers have located the neurochemical essence of our face expertise in a strip of temporal-lobe tissue about two inches long and three-quarters of an inch wide. Studying this face recognition area in macaque monkeys, neurobiologist Doris Tsao at the University of Bremen, Germany, reported in Science that the tissue consisted almost entirely of neurons that responded just to faces.

To understand how the tissue develops, Yoichi Sugita at Japan’s Neuroscience Research Institute raised infant monkeys for two years without ever showing them a face. Lab workers wore hoods. When faces were finally revealed to them, the monkeys could readily tell them apart, Dr. Sugita reported in January in the Proceedings of the National Academy of Sciences.

“It is mind-blowing,” Dr. Kanwisher said. “If you had to bet, you would bet it is innate.”

What can/should the law do about these findings, which, after all, confirm common intuitions. See Steven Jay Gould’s A Biological Homage to Mickey Mouse, in The Panda’s Thumb.

  April 4, 2008 at 2:11 pm   Posted in: Behavioral Law and Economics, Consumer Protection Law, Culture, Law and Humanities, Sociology of Law   Print This Post   One Comment

Tipping Points and Viral Law

posted by Dave Hoffman

Which channels for legal authority are most efficient? This enforcement-efficacy question is a tough one, understudied by traditional L&E and even BL&E. Most instrumentalist theories of law spend relatively little time thinking about the costs of distributing legal rules, and the likelihood that their recipients (citizens) will internalize them. Indeed, the basic L&E approach to criminal law (Becker’s) is frankly dismissive of law’s signaling function, and equates criminal and civil wrongs as taxable infractions.

The problem is not confined to criminal law, of course. Imagine that we want to promote good behavior by a corporate officer. Traditional corporate law doctrine says that we should do so by tinkering with legal rules (”the duty to auction should attach at a Revlon moment”; “Revlon doesn’t happen unless control transfers apart from a distributed market transaction”; “officers must seek Board approval for corporate opportunity taking”; etc.) These doctrinal choices are framed against an incentive problem (principal agent). Richer motivational accounts complicate the story: maybe officers won’t be incented to avoid negligence by imposing a care rule; maybe monitoring rules will increase distrust). But even behavioral law and economics assumes that the way that law is pushed out to its targets is basically immaterial to whether it is effective.

This is the standard, hierarchical, model of distributing law. Different approaches, born out of network theory, are of course possible. Malcolm Gladwell’s The Tipping Point illustrates the point. Gladwell popularized the idea of the “law of the few”: “The success of any kind of social epidemic is heavily dependent on the involvement of people with a particular and rare set of social skills.” He further identified connectors (people who “link us up with the world … people with a special gift for bringing the world together”; mavens (”people we rely upon to connect us with new information.”); and salesmen (”persuaders”). Finally, he suggested that some messages are more sticky than others. (Source for the quotes: Wikipedia) .

How would these insights apply to law? Well, obviously, we might imagine Judge Hercules thinking about a change in the law. She has some criterion to evaluate the goodness of that change. [Be it Kaldor-Hicks efficiency, or something as subtle as de-biasing a pernicious cognitive error, or maybe a fMRI readout of a few brain scans, or maybe she just flipped a coin. Don't be distracted by the mechanism, stick with the story!] Once she’s made the decision, however, she wants the greatest number of people in society to follow her new rule, so as to maximize the benefits she thinks flows from the change. L&E and BL&E have, to date, said almost nothing about this distribution and enforcement problem. (Indeed, as I learned from Alex Rasholnikov’s workshop at Temple this week, tax folks haven’t done much on enforcement either.) So, she follows the conventional wisdom, issuing her decision in an opinion, or an order if she thinks it likely to be unappealled, and assumes that individuals will learn about the new legal rule in the traditional ways – the media, by word-of-mouth, and by personal experience with the policeman’s stick.

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  February 7, 2008 at 4:57 pm   Posted in: Behavioral Law and Economics, Contract Law & Beyond, Corporate Law, Culture, Economic Analysis of Law, Empirical Analysis of Law, Sociology of Law   Print This Post   3 Comments

What Copyright Law and Plane Crashes Have in Common

posted by Bruce Boyden

As others have already noted, the Atlantic Monthly is now making its articles available online, including browseable issues going ten years back and select articles through most of the twentieth century. I immediately checked it out to see if one of my favorite Atlantic articles was up, and it is: William Langewiesche’s The Lessons of ValuJet 592. Langewiesche’s article is a captivating look at a classic “system accident,” the 1996 crash of a ValuJet (now AirTran) plane due to the improper loading of unspent oxygen generators in the hold. I highly recommend it.

System accidents are fascinating events that have a sort of Rube Goldberg quality to them. They typically occur in highly complex organizations that have adopted systems and procedures to avoid simple accidents — such as planes flying into each other in mid-air or cargo exploding in flight. The airline industry, nuclear power plants, large modern military forces, NASA, and contractors that build and maintain large structures such as buildings and bridges are all examples of such organizations. Such organizations are complex, with highly detailed procedures that cover every aspect of their endeavors, because they are dealing with tasks that carry with them the possibility of catastrophic damage. These procedures tend to weed out the simple and easily understood accident causes. In the process, however, the very complexity of the organization and the procedures required tax the ability of the human participants to follow them. What sometimes results is accidents that do not stem from a single, obvious cause, but rather from a number of small errors, any one of which would not cause an accident by itself, but which together combine to produce a disaster. In ValuJet 592’s case, for example, confusion among contract workers about “expired” and “expended” generators, between “generators” and “canisters,” about whether caps were required, about what color tags to place on them, and about why they were placed in the shipping department, all led to the accident — which nevertheless still could have been prevented if either the ValuJet receiving clerk or the co-pilot had questioned why they were being loaded aboard the plane. It’s only because every single one of those things went the wrong way that the accident occurred.

One frequent element of a system accident is the way in which humans and machines fail to work together well. Air accident reports often attribute such failures to “pilot error,” but that usually does not capture the whole story. Beginning in the 1970s, accident investigators and aircraft designers started to go beyond a simple notation of “pilot error” and ask if there was anything about the design of the aircraft or the procedures that made such error more likely. In other words, could things have been designed better to handle predictable and likely mistakes? This research is referred to as “human factors” engineering — that is, considering the likely human response to various situations as part of the engineering design. An early example was the response to an Eastern Airlines crash in the Everglades in 1972. While both pilots were trying to figure out if the landing gear indicator light bulb had burned out (itself a waste of pilot resources), one of them accidentally hit the steering wheel, which silently disengaged the autopilot. By the time they figured out the autopilot was off and the plane was in a descent, it was too late. Sure, that was “pilot error,” but it was an entirely predictable one — people accidentally nudge stuff all the time, particularly when they’re focused on some other task. The solution was to add an audible alarm when the autopilot is turned off — e.g., a recorded voice saying “autopilot disengaged.”

Such research applies beyond hazardous environments such as airplanes. Everyday products are often poorly designed to interact with actual humans. Take glass doors in office buildings, one of my favorite examples of where simple design choices can make a task difficult or easy. It’s often not clear from looking at such a door whether it’s supposed to be opened by pulling on it or pushing. This can be cleared up with a simple visual cue: a horizontal bar across the door, or a steel plate on the side of the door, indicates the “push” side. A short vertical bar indicates pull. Other designs, however, may not indicate which is which; indeed, many doors are very poorly designed with “pull” bars that in fact are supposed to be pushed. (Check out the Bad Designs website for lots more examples.)

How does all of this relate to copyright? Copyright law is badly designed to relate to humans. It’s particularly maladapted to apply to the humans that, more and more, need to know what the rules of copyright are: non-lawyer individual consumers.

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  January 25, 2008 at 4:05 pm   Posted in: Intellectual Property, Sociology of Law, Technology   Print This Post   7 Comments

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