Archive for the ‘Sociology of Law’ Category

Privacy & Information Monopolies

posted by Frank Pasquale

First Monday recently published an issue on social media monopolies. These lines from the introduction by Korinna Patelis and Pavlos Hatzopolous are particularly provocative:

A large part of existing critical thinking on social media has been obsessed with the concept of privacy. . . . Reading through a number of volumes and texts dedicated to the problematic of privacy in social networking one gets the feeling that if the so called “privacy issues” were resolved social media would be radically democratized. Instead of adopting a static view of the concept . . . of “privacy”, critical thinking needs to investigate how the private/public dichotomy is potentially reconfigured in social media networking, and [the] new forms of collectivity that can emerge . . . .

I can even see a way in which privacy rights do not merely displace, but actively work against, egalitarian objectives. Stipulate a population with Group A, which is relatively prosperous and has the time and money to hire agents to use notice-and-consent privacy provisions to its advantage (i.e., figuring out exactly how to disclose information to put its members in the best light possible). Meanwhile, most of Group B is too busy working several jobs to use contracts, law, or agents to its advantage in that way. We should not be surprised if Group A leverages its mastery of privacy law to enhance its position relative to Group B.

Better regulation would restrict use of data, rather than “empower” users (with vastly different levels of power) to restrict collection of data. As data scientist Cathy O’Neil observes:
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  April 20, 2013 at 1:03 pm   Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (National Security), Social Network Websites, Sociology of Law   Print This Post   2 Comments

“The Creditor Was Always Right”

posted by Frank Pasquale

What would a world of totally privatized justice look like? To take a more specific case—imagine a Reputation Society where intermediaries, unbound by legal restrictions, could sort people as wheat or chaff, credit-worthy or deadbeat, reliable or lazy?

We’re well on our way to that laissez-faire nirvana for America’s credit bureaus. While they seem to be bound by FCRA and a slew of regulations, enforcement is so wan that they essentially pick and choose the bits of law they want to follow, and what they’d like to ignore. That, at least, is the inescapable conclusion of a brief but devastating portrait of the bureaus on 60 Minutes. Horror stories abound regarding the bureaus, but reporter Steve Kroft finds their deeper causes by documenting an abandonment of basic principles of due process:
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  February 19, 2013 at 8:47 pm   Posted in: Consumer Protection Law, Corruption, Cyberlaw, Sociology of Law, Technology   Print This Post   4 Comments

Gamification – Kevin Werbach and Dan Hunter’s new book

posted by Deven Desai

Gamification? Is that a word? Why yes it is, and Kevin Werbach and Dan Hunter want to tell us what it means. Better yet, they want to tell us how it works in their new book For the Win: How Game Thinking Can Revolutionize Your Business (Wharton Press). The authors get into many issues starting with a refreshing admission that the term is clunky but nonetheless captures a simple, powerful idea: one can use game concepts in non-game contexts and achieve certain results that might be missed. As they are careful to point out, this is not game theory. This is using insights from games, yes video games and the like, to structure how we interact with a problem or goal. I have questions about how well the approach will work and potential downsides (I am after all a law professor). Yet, the authors explore cases where the idea has worked, and they address concerns about where the approach can fail. I must admit I have only an excerpt so far. But it sets out the project while acknowledging possible objections that popped to mind quite well. In short, I want to read the rest. Luckily the Wharton link above or if you prefer Amazon Kindle are both quite reasonably priced. (Amazon is less expensive).

If you wonder about games, play games, and maybe have thought what is with all this badging, point accumulation, leader board stuff at work (which I did while I was at Google), this book looks to be a must read. And if you have not encountered these changes, I think you will. So reading the book may put you ahead of the group in understanding what management or companies are doing to you. The book also sets out cases and how the process works, so it may give you ideas about how to use games to help your endeavor and impress your manager. For the law folks out there, I think this area raises questions about behavioral economics and organizations that will lay ahead. In short, the authors have a tight, clear book that captures the essence of a movement. That alone merits a hearty well done.

  October 30, 2012 at 1:39 pm   Posted in: Book Reviews, Innovation, Social Network Websites, Sociology of Law, Technology   Print This Post   No Comments

How would we know if and why the “law” is “overly complicated and outrageously expensive”?

posted by Dave Hoffman

I agree with some of what’s said in this new essay about credentialing and the educational system. It’s worth reading.  But the author makes a claim about “law” which I don’t quite accept:

“Today, we take it for granted that practicing medicine or law requires years of costly credentialing in unrelated fields. In the law, the impact of all this “training” is clear: it supports a legal system that is overly complicated and outrageously expensive, both for high-flying corporate clients who routinely overpay and for small-time criminal defendants who, in the overwhelming majority of cases, can’t afford to secure representation at all (and must surrender their fate to local prosecutors, who often send them to prison). But just as a million-dollar medical training isn’t necessary to perform an abortion, routine legal matters could easily, and cheaply, be handled by noninitiates.”

There is one statement here that is undeniably true: many people who would like to access legal services can not afford to do so. But the rest is not fully thought out.

Literally any vaguely competent human can draft a will. The relevant question is: what percentage of “routine” wills turn out to be complex down the line, such that lay drafting which doesn’t anticipate problems creates a joojooflop and expensive heartache?  Does anyone actually know the answer to this question? I don’t. And given that I don’t have a sense of the relevant baseline risks, I would vastly prefer to have a will drafted by a competent T&E attorney than drafting it myself;  and I’d prefer to draft it myself than take it from a form book or a “noninitiate.” That doesn’t make me a credentialist snob: that makes me risk averse.  Indeed: it should be obvious that merely because many people can’t afford wills drafted by lawyers doesn’t mean that experienced nonlawyer will drafting is just as good as legally trained drafting. (It might or not be – the question susceptible to empirical investigation.)

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  July 7, 2012 at 5:07 pm   Posted in: Sociology of Law   Print This Post   4 Comments

Are We Really Growing “More Divided” By Party Over Time?

posted by Dave Hoffman

Over at the Cultural Cognition Blog, I’ve written a bit about some new evidence about partisan division.  The headline news is that partisanship is a better predictor than it used to be of cultural division.  But as I read the data, the undernews is that we’re actually no more divided than we used to be on common ideological and cultural measures.  Given all that’s happened in the last quarter-century – including media differentiation, the digital revolution and 24-hour news cycle, more bowling alone, sprawl – isn’t that kind of a huge deal? The fact that partisan self-identification is a better predictor of cultural views than it used to be simply means that the parties are cohering better.  That might be bad for the functioning of our particular form of representative government, but it doesn’t mean that we’re drifting apart as a country.

  June 7, 2012 at 2:09 pm   Posted in: Empirical Analysis of Law, Sociology of Law   Print This Post   No Comments

Personhood to artificial agents: Some ramifications

posted by Ramesh Subramanian

Thank you, Samir Chopra and Lawrence White for writing this extremely thought-provoking book! Like Sonia Katyal, I too am particularly fascinated by the last chapter – personhood for artificial agents. The authors have done a wonderful job of explaining the legal constructs that have defined, and continue to define the notion of according legal personality to artificial agents.

The authors argue that “dependent” legal personality, which has already been accorded to entities such as corporations, temples and ships in some cases, could be easily extended to cover artificial agents. On the other hand,  the argument for according  “independent” legal personality to artificial agents is much more tenuous. Many (legal) arguments and theories exist which are strong  impediments to according such status. The authors categorize these impediments as competencies (being sui juris, having a sensitivity to legal obligations, susceptibility to punishment, capability for contract formation, and property ownership and economic capacity) and philosophical objections (i.e. artificial agents do not possess Free Will, do not enjoy autonomy, or possess a moral sense, and  do not have clearly defined identities), and then argue how they might be overcome legally.

Notwithstanding their conclusion that the courts may be unable or unwilling to take more than a piecemeal approach to extending constitutional protections to artificial agents, it seems clear to me the accordance of legal personality – both dependent and, to a lesser extent  independent, is not too far into the future. In fact, the aftermath of  Gillick v West Norfolk and Wisbech Area Health Authority has shown that various courts have gradually come to accept that dependent minors “gradually develop their mental faculties,” and thus can be entitled to make certain “decisions in the medical sphere.”

We can extend this argument to artificial agents which are no longer just programmed expert systems, but have gradually evolved into being self-correcting, learning and reasoning systems, much like children and some animals. We already know that even small children exhibit these notions. So do chimpanzees and other primates. Stephen Wise has argued that some animals meet the “legal personhood” criteria, and should therefore be accorded rights and protections. The Nonhuman Rights Project  founded by Wise is actively fighting for legal rights for non-human species. As these legal moves evolve and shape common law, the question arises as to when (not if)  artificial agents will develop notions of “self,” “morals” and “fairness,” and thus on that basis be accorded legal personhood status?

And  when that situation arrives, what are the ramifications that we should further consider? I believe that three main “rights” that would have to be considered are: Reproduction, Representation, and Termination. We already know that artificial agents (and Artificial Life) can replicate themselves and “teach” the newly created agents. Self-perpetuation can also be considered to be a form of representation. We also know that under certain well defined conditions, these entities can self-destruct or cease to operate. But will these aspects gain the status of rights accorded to artificial agents?

These questions lead me to the issues which I personally find fascinating: end-of-life decisions extended to artificial agents. For instance, what would be the role of aging agents of inferior capabilities that nevertheless exist in a vast global network?  What about malevolent agents? When, for instance, would it be appropriate to terminate an artificial agent?  What would be the laws that would handle situations like this, and how would such laws be framed? While these questions seem far-fetched, we are already at a point where numerous viruses and “bots” pervade the global information networks, learn, perpetuate, “reason,” make decisions, and continue to extend their lives and their capacity to affect our existence as we know it. So who would be the final arbiter of end-of-life decisions in such cases? In fact, once artificial agents evolve and gain personhood rights, would it not be conceivable that we would have non-human judges in the courts?

Are these scenarios too far away for us to worry about, or close enough? I wonder…

-Ramesh Subramanian

  February 14, 2012 at 6:00 pm  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Bioethics, Civil Rights, Courts, Sociology of Law, Symposium (Autonomous Artificial Agents), Technology, Uncategorized   Print This Post   No Comments

Did Rahm Learn Anything From Cass?

posted by Sarah Waldeck

This week Governor Pat Quinn of Illinois signed legislation that will allow the City of Chicago to put speed cameras in the one-eighth mile buffer zones around schools and parks.   As the Chicago Tribune has reported, the City has more than 600 public schools and only slightly fewer parks, so this legislation gives Chicago the authority to cover roughly half of its territory with speed cameras.  The City says it will concentrate on the approximately 80 areas where the need for speed enforcement is particularly acute.

Although Quinn signed the legislation, the cameras are the handiwork of Mayor Rahm Emanuel.   The Mayor says he developed the plan after school officials and the police expressed concerns about public safety.  Emanuel’s critics—and he has a lot of them—paint the legislation as being more about revenue generation than public safety.   Drivers who go more than 5 miles over the speed limit will be fined $50 and drivers who go more than 11 miles over the limit will be fined $100.  The Mayor has said repeatedly that he doesn’t care if the cameras generate any revenue; the legislation is all about keeping kids safe.

Let’s take the Mayor at his word and assume that his only goal is to make Chicago safer.  What would traffic engineers and behavioral economists advise?  They would tell him to install dynamic speed displays, which announce the posted speed limit and display in large digital numbers the speed of each driver going past.   One of the first experiments with these displays took place in school zones in suburban Los Angeles in 2003.  Drivers slowed down by an average of 14 percent and in some zones the average speed dropped below the limit.   The use of dynamic speed displays has since become commonplace and research has consistently shown that they cause drivers to slow down by about 10 percent for several miles.

These displays upend the usual approach to traffic enforcement because there is no penalty for displaying a speed that is higher than the posted limit.   Instead, the display works by creating a feedback loop: (1) sensors instantly capture and relay information about the driver’s speed; (2) the large public display of numbers carries real punch because few people want to be perceived as reckless or careless; and (3) the driver has immediate opportunity to slow down by simply easing up on the gas.   This feedback loop is so effective that traffic safety experts have concluded it does a better job of changing driving habits than techniques that depend on police issuing tickets.  (You can read about dynamic speed displays and feedback loops more generally here.)

Chicago’s speed cameras will be accompanied by highly visible signage, so time will tell whether the combination of signage and speed cameras make drivers slow down in the short term and change their driving habits in the long term.   If I were advising a mayor whose priority was public safety, however, I’d recommend the use of dynamic speed displays that provide effective feedback to drivers in the moments before they enter a school zone, and not cameras whose feedback comes in the mail several days after the driver already has sped by a school.

  February 9, 2012 at 2:15 pm   Posted in: Innovation, Sociology of Law   Print This Post   2 Comments

Gamifying Control of the Scored Self

posted by Frank Pasquale

Social sorting is big business. Bosses and bankers crave “predictive analytics:” ways of deciding who will be the best worker, borrower, or customer. Our economy is less likely to reward someone who “builds a better mousetrap” than it is to fund a startup which will identify those most likely to buy a mousetrap. The critical resource here is data, the fossil fuel of the digital economy. Privacy advocates are digital environmentalists, worried that rapid exploitation of data either violates moral principles or sets in motion destructive processes we only vaguely understand now.*

Start-up fever fuels these concerns as new services debut and others grow in importance. For example, a leader at Lenddo, “the first credit scoring service that uses your online social network to assess credit,” has called for “thousands of engineers [to work] to assess creditworthiness.” We all know how well the “quants” have run Wall Street—but maybe this time will be different. His company aims to mine data derived from digital monitoring of relationships. ITWorld headlined the development: “How Facebook Can Hurt Your Credit Rating”–”It’s time to ditch those deadbeat friends.” It also brought up the disturbing prospect of redlined portions of the “social graph.”

There’s a lot of value in such “news you can use” reporting. However, I think it misses some problematic aspects of a pervasively evaluated and scored digital world. Big data’s fans will always counter that, for every person hurt by surveillance, there’s someone else who is helped by it. Let’s leave aside, for the moment, whether the game of reputation-building is truly zero-sum, and the far more important question of whether these judgments are fair. The data-meisters’ analytics deserve scrutiny on other grounds.
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  December 19, 2011 at 3:21 pm   Posted in: Political Economy, Privacy, Social Network Websites, Sociology of Law   Print This Post   One Comment

The Moral Authority of Occupy Wall Street

posted by Frank Pasquale

The Occupy Wall Street protests continue to grow, and to gain support from public intellectuals. Joe Stiglitz, Anne Marie Slaughter, and Paul Krugman are the latest luminaries to praise the cause. The movement has also provoked derision. Let’s consider the latest Norquist/Limbaugh memes as the protest nears the one-month mark:

1) “They’re just spoiled hippies who can’t get a job.” A quick glance at the “We are the 99%” tumblr could easily dispel this notion. The economic suffering in this country is deep and broad. As one news story put it, “one in three Americans would be unable to make their mortgage or rent payment beyond one month if they lost their job.” Even if the most down-and-out people are too poor or busy to get to Wall Street (or the hundreds of other actions now taking place), many of them think of the OWS crowd as speaking for them.

There is so much needless suffering going on now, and so much wealth accumulating at the very top. It is hard to understand how critics dismiss the protesters so cavalierly. I used to find the Biblical passage about God hardening Pharaoh’s heart one of the more mysterious parts of the Book of Exodus; now I feel like I’m witnessing it firsthand.
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  October 8, 2011 at 11:13 am   Posted in: Corruption, Current Events, Financial Institutions, Law and Inequality, Political Economy, Politics, Sociology of Law   Print This Post   23 Comments

Q&A with Lior Strahilevitz about Information and Exclusion

posted by Daniel Solove

Lior Strahilevitz, Deputy Dean and Sidley Austin Professor of Law at the University of Chicago Law School recently published a brilliant new book, Information and Exclusion (Yale University Press 2011).  Like all of Lior’s work, the book is creative, thought-provoking, and compelling.  There are books that make strong and convincing arguments, and these are good, but then there are the rare books that not only do this, but make you think in a different way.  That’s what Lior achieves in his book, and that’s quite an achievement.

I recently had the opportunity to chat with Lior about the book. 

Daniel J. Solove (DJS): What drew you to the topic of exclusion?

Lior Jacob Strahilevitz (LJS):  It was an observation I had as a college sophomore.  I lived in the student housing cooperatives at Berkeley.  Some of my friends who lived in the cooperatives told me they felt morally superior to people in the fraternities and sororities because the Greek system had an elaborate, exclusionary rush and pledge process.  The cooperatives, by contrast, were open to any student.  But as I visited friends who lived in the various cooperative houses, the individual houses often seemed no more heterogeneous than the fraternities and sororities.  That made me curious.  It was obvious that the pledging and rushing process – formal exclusion – created homogeneity in the Greek system.  But what was it that was creating all this apparent homogeneity in a cooperative system that was open to everyone?  That question was one I kept wondering about as a law student, lawyer, and professor.

That’s why page 1 of the book begins with a discussion of exclusion in the Greek system.  I start with really accounts of the rush process by sociologists who studied the proxies that fraternity members used to evaluate pledges in the 1950s (attire, diction, grooming, firm handshakes, etc.)  The book then brings us to the modern era, when fraternity members peruse Facebook profiles that provide far more granular information about the characteristics of each pledge.  Proxies still matter, but the proxies are different, and those differences alter the ways in which rushing students behave and fraternities exclude.

DJS: What is the central idea in your book?

LJS: The core idea is that asymmetric information largely determines which mechanisms are used to exclude people from particular groups, collective resources, and services.  When the person who controls a resource knows a lot about the people who wish to use it, she will make decisions about who gets to access it.  Where she lacks that information, she’ll develop a strategy that forces particular groups to exclude themselves from the resource, based on some criteria.  There’s a historical ebb and flow between these two sorts of strategies for exclusion, but we seem to be in a critical transition period right now thanks to the decline of practical obscurity in the information age.

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  September 28, 2011 at 11:17 pm   Posted in: Book Reviews, Bright Ideas, Jurisprudence, Law and Humanities, Law and Psychology, Legal Theory, Privacy, Sociology of Law   Print This Post   3 Comments

Two Crises, One Response

posted by Frank Pasquale

The US faced two great crises during the first decade of the 21st century: the attacks of September, 2001, and the meltdown of its financial system in September, 2008. In the case of 9/11, the country reluctantly concluded that it had made a category mistake about the threat posed by terrorism. The US had relied on cooperation among the Federal Aviation Administration, local law enforcement, and airlines to prevent hijacking. Assuming that, at most, a hijacked or bombed airplane would kill the passengers aboard the plane, government officials believed that national, local, and private authorities had adequate incentives to invest in an optimal level of deterrence. Until the attack occurred, no high official had deeply considered and acted on the possibility that an airplane itself could be weaponized, leading to the deaths of thousands of civilians.

After the attack, a new Department of Homeland Security took the lead in protecting the American people from internal threats, while existing intelligence agencies refocused their operations to better monitor internal threats to domestic order. The government massively upgraded its surveillance capabilities in the search for terrorists. DHS collaborated with local law enforcement officials and private critical infrastructure providers. Federal agencies, including the Department of Homeland Security, gather information in conjunction with state and local law enforcement officials in what Congress has deemed the “Information Sharing Environment” (ISE), held together by information “fusion centers” and other hubs. My co-blogger Danielle Citron and I wrote about some of the consequences in an article that recently appeared in the Hastings Law Journal:

In a speech at the Washington National Cathedral three days after 9/11, then-President George W. Bush proclaimed that America’s “responsibility to history is already clear[:] . . . [to] rid the world of evil.” For the next seven years, the Bush administration tried many innovations to keep that promise, ranging from preemptive war in Iraq to . . . changes in law enforcement and domestic intelligence . . . Fusion centers are a lasting legacy of the Administration’s aspiration to “eradicate evil,” a great leap forward in both technical capacity and institutional coordination. Their goal is to eliminate both the cancer of terror and lesser diseases of the body politic.

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  September 12, 2011 at 2:59 pm   Posted in: Current Events, Cyberlaw, Philosophy of Social Science, Politics, Privacy, Privacy (Law Enforcement), Privacy (National Security), Sociology of Law   Print This Post   9 Comments

Hot Summer Flashes, Black Urban Mobs

posted by Olivier Sylvain

  September 5, 2011 at 11:52 pm   Posted in: Constitutional Law, Culture, Current Events, First Amendment, Media Law, Philosophy of Social Science, Politics, Race, Social Network Websites, Sociology of Law, Technology, Web 2.0   Print This Post   8 Comments

Two (more) cheers for rhetorical coolness

posted by David Fagundes

Dave’s awesome post from a few days ago, along with the ensuing discussion, got me thinking a bit more about the virtues of  humility in reasoning (the Kahan paper he cites calls this “aporia,” but for all I know that could really be Greek for “platypus” so I’ll just stick with good old English).  I’m a fan of the approach to discourse that Dave describes in the post, which I will refer to herein as rhetorical coolness (to contrast it with overheated rhetoric, and because it think it actually is cool, in the sense that Fonzie is cool).

By “rhetorical coolness,” I refer to a style of reasoning that entails respectful consideration of opposing arguments, evinces due humility about the inevitable limitations of one’s capacities to reason, and avoids the kind of hysterical tone that characterizes much public dialogue these days, especially cable news and the blogosphere.

It doesn’t seem to me particularly surprising that people should give carefully articulated reasons for their positions rather than engage in all-caps, red-faced, Nancy-Grace style ranting.  But then again, if you take a look at the viewership of cable news or the readership of blogs, it often seems like the hysterical style is what really moves people, so I may be in the minority on this.

Hence my encouragement at reading Dave’s citation to literature suggesting that while people may feel gratified by (and hence seek out) inflammatory information outlets that tend to confirm their preexisting positions, what tends to persuade people to change their minds is balanced, non-hysterical reasoning that evinces rhetorical humility as I’ve described it above.

I haven’t done the kind of empirical research that Dave Hoffman or Dan Kahan have on cultural cognition, but I still wanted to advance a pair of non-quantitative (but still empirical) reasons in praise of the cool style.  I articulate these reasons below the fold.  Fair warning:  in the ensuing discussion, no one will be compared to Hitler.

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  August 31, 2011 at 4:56 pm   Posted in: Sociology of Law   Print This Post   7 Comments

No More Fire, the Water Next Time

posted by Dave Hoffman

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.

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  August 29, 2011 at 3:52 pm   Posted in: Articles and Books, Law School, Law School (Teaching), Philosophy of Social Science, Sociology of Law, Supreme Court   Print This Post   11 Comments

Jack Balkin’s Constitutional Redemption: A Much-Needed Dose of Optimism

posted by Douglas NeJaime

I want to thank Danielle Citron for inviting me to participate in this symposium. And I want to thank Jack Balkin for giving me the great honor of commenting on his wonderful book. In Constitutional Redemption, Balkin offers an important, insightful, and useful corrective to the pessimism that pervades a significant amount of legal scholarship on the left. His constitutional optimism suggests the potential and possibilities of constitutional mobilization.

Balkin’s book offers incredible amounts of rich material. He provides a descriptive account of constitutional change, a normative vision of democratic culture, and an interpretative theory aimed at fulfilling the Constitution’s promises. In showing how social movements believe in and agitate for constitutional redemption, Balkin redeems the Constitution for legal scholarship, reminding us that the Constitution serves both as a potent symbol of social change and as a vehicle for continued reform. In this commentary, I first want to focus on why I think Balkin’s descriptive account is accurate by pointing to two essential moves I see him making. I then want to show Balkin’s theory in action in the marriage equality context as a way to translate his analysis into a useful lesson for liberals and progressives.

To my mind, two key moves allow Balkin to see what many others miss and thereby to bridge the often vast divide between constitutional theory and on-the-ground social movement activity. First, Balkin decenters adjudication, and in a sense detaches constitutional claims-making from constitutional decision-making. Of course, Balkin discusses at great length the decisions of the Supreme Court on various significant issues – from race to abortion to labor – and these decisions are crucial to an account of social change. But he analyzes adjudication through the lens of political and movement mobilization, showing the evolution of constitutional principles through the symbiotic relationship among courts, culture, and social movements. (Balkin, p. 63)

By deemphasizing adjudication, Balkin suggests that the most significant effects of constitutional claims emerge from the claims-making process itself. The claim is not merely instrumental – to convince a judge to grant some right or benefit to the plaintiff. Rather, the claim may be transformative and may articulate a vision that holds power regardless of judicial validation. In fact, when the judge validates the plaintiff’s claim, it is often because that claim has already affected the culture more generally.

Balkin’s second key move, which follows from the first, is his contextualization of courts within a broader political and cultural world. (Balkin, pp. 97-98) For Balkin, constitutional claims-making is political and moral claims-making. (Balkin, p. 118) Through this lens, courts cannot (and generally do not) go it alone. Instead, courts participate in an ongoing dialogue with other social change agents, including social movements and political actors.

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  August 1, 2011 at 9:00 am  Tags: balkin, constitutional redemption, lgbt rights, marriage equality  Posted in: Constitutional Law, Constitutional Redemption Symposium, Courts, Legal Theory, LGBT, Sociology of Law, Uncategorized   Print This Post   No Comments

Diving, soccer, and cultural differences about the morality of rulebreaking

posted by David Fagundes

The FIFA Women’s World Cup ended last weekend (disappointingly, for the US team, at least) and I was faced with the same experience that is familiar to Americans who like soccer whenever the sport blips across our national radar screen.  Friends and family alike who talked about the WWC with me invariably steered the conversation as soon as possible not in the direction of the last-gasp heroics of the teams involved, or the individual brilliance of many of the players, but instead to a moral outrage that apparently overshadowed any merit the WWC might otherwise have had for them:  diving.

Diving, or simulation, is the practice of inventing or exaggerating physical contact in order to draw a foul on the opposing team, or relatedly of inventing or exaggerating an injury in order to waste time and let the game clock wind down (e.g., Brazil in extra-time versus the US in the WWC quarterfinal before Wambach’s famous game-tying goal).  This practice is not exclusive to soccer (one sees variants of it, increasingly, in NBA basketball), but it is certainly most prevalent in soccer, especially among certain national soccer cultures.

What interests me about this reaction to diving is how pronounced it is among some sports fans, and how subdued it is in others.  Some soccer cultures regard simulation as the sporting equivalent of murder (morally reprehensible regardless of whether you’re caught doing it), while others regard it as the sporting equivalent of jaywalking (illegal, and not a good idea, but something you might do every so often if you think you can get away with it and it gains you some advantage).  I examine this puzzle in more detail, and pose some conjectures about resolving it, after the break.

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  July 25, 2011 at 3:17 pm   Posted in: Sociology of Law   Print This Post   10 Comments

The Agents of Social Change

posted by Dave Hoffman

Matt Yglesias chides progressives for thinking that judges are their natural allies. Not only has “the judicial branch has been a very conservative elite-dominated institution” throughout most of American history, but “fancy lawyers [who make up the bench] are just as much the social peers of business executives as ordinary politicians are, but fancy lawyers aren’t accountable to voters the way ordinary politicians are.”

This is in the main right, but wrong in its diagnosis of partisanship.  Lawyers are generally conservative - in their habits, their attitudes towards social order and the virtues of wealth-creation, in their risk-preferences.  (This is why, for example, teaching entrepreneurial law is hard, and why venturers hate their lawyers.)  And it’s fair to say that most lawyers who become judges aren’t known to be wild iconoclasts or fire-breathers, though there are exceptions to every rule.  But there are literally thousands of judges in this country, not merely the nine platonic guardians who sit above us.  Many of those judges are elected – does Yglesias really think that democratic accountability will result in measurably better outcomes for progressives?

I think that the problem Yglesias identifies doesn’t lie with lawyer’s eliteness, or their partisanship. It’s with legal training’s orientation toward the appropriate role of lawyering and judges.  Law school inculcates lawyers in a tradition where it’s seen to be bad to reach outside of one’s role.  We learn this by talking about Justices as good (or bad) examples of the rule.  Justice Harlan 2: Good.  Justice Douglas: Bad.  the first Justice Marshall: Excellent, but for the fraternizing with the Executive.  Justice Taney: Boooooo.  The Current Chief Justice:  a master at maximal minimalism.  As Craig Green has argued, this socratically-taught, historically-contingent, role-differentiation is at the core of the judicial activism debate.  Thus, to the extent that the Justices in Dukes saw systemic change of the scale demanded by the Walmart plaintiffs as an extraordinary and invasive remedy, they would have balked.  It’s not because they are elite. Nor are they are pro-business, whatever that means.  (And what kind of ignoramus would self-identify as anti-business?). It’s because Dukes imagined an active & socially intrusive role for judges (and juries) that the current legal norms can’t swallow as legitimate.

  June 21, 2011 at 8:53 pm   Posted in: Sociology of Law   Print This Post   8 Comments

The Role of Intermediaries in Conspiracy Theories

posted by Dave Hoffman

Ilya Somin, at tVC, argues that belief in conspiracy theories are based in part on a failure of incentives and a tragedy of the commons:

“[P]eople tend to be “rationally ignorant” about politics, and to do a poor job of evaluating the information they do learn. They don’t consciously embrace beliefs they know to be false. But they also don’t make much of an effort to critically evaluate the ideas they come across. If a conspiracy theory is emotionally satisfying and reinforces their preexisting prejudices, they are more than happy to run with it. This is perfectly rational and understandable behavior for individual voters. Unfortunately, it can lead to unfortunate collective outcomes in so far as such beliefs influence election results and the content of public policy.”

This claim depends on Ilya’s assertion that “very few people actually blame personal and professional failures on shadowy conspiracies.” I think Ilya is just wrong here.  People do attribute personal and professional failures to conspiracies – constantly.  Those shadowy conspiracies are simply  less grand (and thus less likely to be generally known).  My boss is out to get me at work; my friends deliberately set me up to look bad; etc.   Moreover, I think Ilya’s claim of rational conspiracy theories makes the process seem more inevitable than it might otherwise be, and doesn’t explain which theories get traction (Grassy Knoll, Long-Form Birth Certificate) and which don’t (Moon Landing).

Ilya’s collective-action-delusion theory also absolves public figures (e.g., well-known libertarian bloggers) from any responsibility to use their moral authority to persuade the public that conspiracy theories are bunk.  There is tons of evidence that people tend to listen carefully to thought-leaders who represent and embody their values, especially when those representatives are speaking about complex topics that the listener has no easy way to investigate herself.  Conservative leaders’ relative silence, and occasional outright defense,  of birtherism has probably contributed to the theory’s spread.  Or to put it another way, the tragedy of the commons doesn’t explain every social evil!

  April 24, 2011 at 4:36 pm   Posted in: Sociology of Law   Print This Post   8 Comments

A Grim (and Fantastic) View of Law

posted by Dave Hoffman

In a series of posts several years back, I interviewed fantasy authors about their work, including the role that law plays in the “hard fantasy” genre.  My favorite interview was with Pat Rothfuss, then the author of the best-selling “The Name of the Wind“.  Here’s what he said about the relationship between law and fantasy:

[DH] You’ve talked in interviews about the need to build a world in exhaustive and thoughtful detail, but leaving most of that information on the cutting room floor in the final draft. When you built Kvothe’s world, did you think (at all) about the background rules of tort, contract, obligation, and property that enabled the relatively sophisticated economy that you envisioned?

[PR] Yes and no. I thought of the legal system, but not in those terms. Mostly because I don’t know what a lot of those terms mean. It’s the same way that a person can be a good cook without necessarily knowing how to calculate how many joules go into melting butter using delta T.

The big reason you don’t see much of that in the book is that it isn’t relevant to the story being told, or the experience of the main character. He’s a street urchin for most of the book. If a sailor catches him with his hand in his pocket, he’s not going to press charges. What’s the percentage in that. He’s going to fetch the boy a sharp smack alongside his head, and get on with his day…

Now if Kvothe got brought up on legal charges somewhere, that would be different. Then the reader would see the horrible, corrupt wheels of justice creaking ponderously along. We get a glimpse of that in book two, as a matter of fact.

[DH] If you have imagined a common law system, what sources did you draw on to flesh out what it looks like in the “book behind the book.”

[PR] In the commonwealth, their legal system is based loosely on England in the 1500-1700’s. In short, it’s a huge, tangled, unfair clusterfuck of a system. There are courts that enforce church law, and courts that enforce the Iron Law of Atur. Each court operates under its own authority, and of course their spheres of influence overlap… It’s a real mess, but it’s the only system that they have…”

“Book Two” was released earlier this month, titled “A Wise Man’s Fear.”  Pardon the pun, but it is a fantastic read.  Well worth your time.   And, lo and behold, on pages 328-329, there’s an actual trial. In fantasyland!   But rather than get into it, glorying in how the rules of procedure and magic might interrelate, or examining how a system of logic and nuance (law?) would interact with one of fantasy and whim, Pat does this:  ”What started as a terrifying experience quickly became a tedious process filled with pomp and ritual. More than forty letters of testimony were read aloud … There were days filled with nothing but long speeches.  Quotations from the iron law.  Points of procedure.  Formal modes of address.  Old man reading out of old books.”  And later, when a character voices an objection to this cursory treatment (and who I dream to be a stand-in for me), the main character replies that a full account of the law “Would be tedious … Endless formal speeches and readings from the Book of the Path. It was tedious to live through, and it would be tedious to repeat.”

Tedious? Has he never heard of Erie?  Of Jacobs & Young? Of Pennoyer, for lord’s sakes?  The law isn’t tedious – it’s the stuff of drama!

  March 16, 2011 at 2:01 pm   Posted in: Law Talk, Sociology of Law   Print This Post   3 Comments

UCLA Law Review Vol. 58, Issue 3 (February 2011)

posted by UCLA Law Review

Volume 58, Issue 3 (February 2011)

Articles

Good Faith and Law Evasion	Samuel W. Buell	611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19	Katherine Florey	667
The Need for a Research Culture in the Forensic Sciences	Jennifer L. Mnookin et al.	725
Commentary on The Need for a Research Culture in the Forensic Sciences	Joseph P. Bono	781
Commentary on The Need for a Research Culture in the Forensic Sciences	Judge Nancy Gertner	789
Commentary on The Need for a Research Culture in the Forensic Sciences	Pierre Margot	795

Comments

What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation	Samuel M. Kidder	803
Defendant Class Actions and Patent Infringement Litigation	Matthew K. K. Sumida	843

  February 25, 2011 at 1:19 pm   Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court   Print This Post   No Comments

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