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 [...]]]>

Judge food.

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!

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 [...]]]> 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)

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 [...]]]> 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.   

The conundrum for advocates of  non-circumcision is that it is possible to acknowledge that circumcision reduces the risk of  HIV infection, but still argue that the procedure should not be routinely performed on all infants.  But this argument is a non-starter unless the listener is really willing to consider that infant circumcision is painful and traumatic, that it changes the male sexual experience, and that there is always a chance, however remote, that the physician will botch the procedure.   In a country where more than 60 percent of infant males are still routinely circumcised, our inclination is to dismiss these arguments.  If legitimate, then what have we been doing to our children?

As I have written about elsewhere, parents who are deciding whether to circumcise care more about the social aspects of the practice than about its medical effects.   The circumcision status of other males in the infant’s family matters a lot to American parents, as does whether boys in a locker room are likely to see circumcised or uncircumcised penises.   Circumcision opponents should be fearful of what the CDC and AAP is likely to recommend, but not simply because these organizations may promote circumcision.  Rather, the medical recommendation will reinforce the still-prevailing societal norm.  Some parents who are conflicted about the practice will ultimately decide to circumcise their boys  because of the medical recommendation alone.   But more are likely to consider the recommendation and predict that other parents will circumcise and thus that they should as well, lest their child be the odd man out.   Meanwhile, parents who were inclined to circumcise will be even more steadfast about the medical correctness of their decision.  All of this makes it extremely unlikely that the norm will tip in favor of non-circumcision.

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 [...]]]> 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.

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 [...]]]> 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.

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 [...]]]>

The 14th Amendment does not (yet?) enact Mr. Herbert Spencer's Social Statics.

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.]

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 [...]]]>

Oliver Wendell Holmes

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.

The other blogs?  In addition to madisonian.net, which is familiar to many law professors who work in IP (and which is the part-time home of Co-Op first teamers Frank Pasquale and Deven Desai), I [...]]]> 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.

The other blogs?  In addition to madisonian.net, which is familiar to many law professors who work in IP (and which is the part-time home of Co-Op first teamers Frank Pasquale and Deven Desai), I write for and administer Pittsblog (on the futures of Pittsburgh, PA, with a special focus on economic development) and for Blog-Lebo (a community blog that challenges the traditional suburban orthodoxy of Mt. Lebanon, PA, where I live).  As Research Dean at Pitt, I write the Pitt Law Faculty Blog, which chronicles the scholarly activities of our faculty.  And because the IP field is bursting with conference activity, I use a blog platform to maintain a conference and workshop calendar for IP and IT law events for scholars in the US and, occasionally, elsewhere.

Each of these started in a distinct way and for distinct reasons, but over time I’ve come to see them as part of a pattern, as a set of informal institutions that serves different communities or groups in related ways.  Exploring that pattern and teasing out those relationships is the theme of my current scholarship, too, so while it might appear to some that I push myself in lots of disparate directions, I usually feel that I’m working on one big thing that has lots of specific payoffs.

For an illustration and lead-in to my next post, here’s a link to my most recent writing, which is a comment in the Virginia Law Review’s online “In Brief” that responds to Dotan Oliar’s and Chris Sprigman’s very interesting article in the Virginia Law Review, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy. (My piece is called Of Coase and Comics, or the Comedy of Copyright.) I suggest that social norms alone can’t explain the apparent absence of formal copyright claims among modern stand-up comics. Comics’ “no plagiarism” norms emerged roughly around the same time that comedy LPs became million-sellers, in the early 1960s.   Is there a connection?  I suspect that there is, and I suspect that connections among record albums and comics’ norms are related in some way to connections among blogs and communities.

More shortly.  In the meantime, a bit of trivia:  Historians of comedy usually think of Mort Sahl and Lenny Bruce as pacesetting stand-up comics.  In researching Of Coase and Comics, I was pleasantly surprised to learn that the first comedian to have a gold record was accountant-turned-comedian Bob Newhart, the same Bob Newhart who later acquired iconic status for communities of college students via the phrase “Hi, Bob” and who eventually uttered the immortal TV sitcom line, “You really should wear more sweaters.”

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 [...]]]> 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?

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 [...]]]> 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.

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 [...]]]> 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.

First, the lawyers. Time and again, I find that lawyers, law professors, and (especially) law students will look at a possible answer to a problem and say: “Well, that won’t solve the problem.” For example, if I were to suggest that it would be a good idea to decrease class sizes in public schools, my stereotypical lawyer will say: “Well, that won’t solve the problem. Even with smaller classes, kids in poor schools will still do worse than kids in rich schools.” The lawyer might be right about that, but the economist in me immediately says: “So what? Even if I can’t fix the problem entirely, can I make a decent dent in the problem at an acceptable cost?”

Economics trains people to think in terms of marginal impacts, with the default mental exercise (conscious or not) being a multivariate equation with a set of explanatory variables. If one right-hand-side variable changes, what happens to the left-hand-side variable? This habit of mind strongly resists the temptation to expect too much of any particular solution. Legal scholars know this problem as “allowing the perfect to be the enemy of the good,” demonstrating that the basic idea does cross disciplinary boundaries. Again, however, we are talking about tendencies here, not absolutes.

A few years ago, in a session at AALS, I offered a variation on this observation about the absolutism of lawyers. Afterward, Professor Tamar Frankel of BU Law School suggested to me that the reason for the legal tilt toward all-or-nothing answers is that the basic concepts in law are guilt or innocence, liability or no liability. Lawyers are trained to argue that their client is right, not partially right. I suspect that Professor Frankel is correct that this explains a great deal of what I’ve observed over the years. In any case, I would be very interested to know whether or not the experiences of Concurring Opinions readers support my observations about this occupational hazard and, if so, if other explanations come to mind.

Now, the economists. The central tool of economic thinking is the simplified model. Boil the myriad complications of the world down to a limited set of variables that seem to capture the essence of what we want to understand, try to understand how the variables interact, and see if we can make predictions or give reasonable policy advice. The very power of that approach, however, sometimes (often?) leads to the tendency to treat a model as if it is the reality. Two very different examples will, I hope, make clear what I have in mind.

(1) At a tax workshop several years ago, in the context of a discussion of progressivity and regressivity, a participant noted a then-recent news story in which a Nokia executive in Finland had received a speeding ticket that carried a fine of more than $100,000. The amount of the fine, if I recall correctly, was set by law as a percentage of the violator’s income rather than a set number of euros. An economist in the room objected that this was an inefficient way to set the fines, because the harm of speeding was not correlated with the driver’s income. A law student replied that the harm of speeding might not be the only harm that policymakers cared about. They might put a positive value on the idea that people — no matter how wealthy — should not be able to easily buy their way out of socially acceptable behavior. Expanding the social welfare function, in other words, to reflect positive utility arising from greater social equality could support such a penalty regime.

This student’s suggestion, of course, is not the end of the story; but it is at least a good way to make the well-understood point that the standard economic approach to efficiency is very adaptable. Even so, the economist in question (who is, by the way, a justifiably well-respected member of the fraternity) simply rejected the suggestion out of hand, saying that social equality was not an appropriate argument in the social welfare function. Apparently, he was so accustomed to thinking about social welfare functions that included only certain familiar variables and excluded others that the very idea of changing the variables (even within the same analytical framework) struck him as illegitimate.

(2) I’ve recently written a series of posts on Dorf on Law (the most recent being here) about the housing crisis. As part of my analysis, I’ve been talking about the surprising fact that home ownership is generally not the wise financial move that we often believe it to be. As I described the factors that one takes into account in determining the wisdom or foolishness of buying versus renting, I focused on the standard financial variables that one typically takes into account in analyzing financial decisions: interest rates, expected time in the residence, etc.

On the comment board, Michael Dorf of Cornell Law pointed out that one reason people buy rather than rent is the relative paucity of pet-friendly rentals, which drives pet-owning potential renters into purchases that might end up being relatively very costly. As I read his comment, I realized that I had not merely ignored a fairly important non-financial matter that might be at play in the minds of many potential home owners. I had, in fact, ignored the most important reason that I have owned homes for most of my adult life. Each time I moved between 1993 and 2005, I bought a house — even when I knew that I was likely to stay in the house for only a short time — because I had multiple dogs and cats. Even so, when thinking in the abstract about home ownership, I ignored this experience and simply focused on “the standard model.”

The point of these two examples is obviously not that every economist makes this kind of mistake all the time but to demonstrate the kind of error to which economists are generally prone. Lawyers say, in essence, “My client is innocent,” while economists say, “My model is right.” Luckily, there are plenty of good lawyers and good economists who regularly avoid these professional pitfalls. Still, the pitfalls are there.

In any event, you now know my answer when people ask me the difference between economists and lawyers. But I could be wrong, at least marginally, if my model is incorrectly specified . . .

During [...]]]> 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.

During the two days, several discussions seemed to turn to the way information placed online can offer tremendous benefits but also pose harms. That idea is not so new. But an underlying theme was that this tension is greater than before. Given the increased reputation problems of the Internet, some folks talked of a more paternal approach to reminding people about privacy (or lack of it) on work computers. The problems of PGP and complex privacy policies as opposed to easy-to-read ones as opposed to heavy opt-in ones and how people perceive the differences posed several paradoxes. In other talks people expressed concerns about cutting off the openness that has made the Internet what it is today. Many questioned just how informed people are about privacy and even if informed how much they care. These ideas should be familiar to those interested in privacy, but so many people sharing ideas about an evolving area of the law and truly seeking to find ways to solve problems made the conference invigorating.

For example, Lauren Gelman is working on how online presence operates under a binary system of public or private yet many think of their online presence as limited essentially to those in one’s circle but with a few new people possibly joining the circle. To me it seems that in some cases people might know that anyone could look at one’s pictures, blogs, MySpace pages etc. In others, some might know that but just not expect that outsiders would look. And some may be quite unaware of the way little things can catch fire and draw attention to what had been a small, personal moment. And then it hit me, why not have Internet Ed.?

Internet Ed. at an early stage might address the possible generation gap in understanding what is privacy and how the Internet works. Like driving, using the Internet can open up tremendous possibilities for fun and for work. Like driving, irresponsible or uninformed Internet use can lead to undesired consequences. Like driving, horror stories of how a picture from a drunken party ruined someone’s job prospects may not deter irresponsible Internet behaviors across the board. Still, by setting out the way in which irresponsible or immature behaviors such as sharing too much information about one’s personal life, not checking about how a site uses personal financial information, and childish rants can affect one’s life, people would have some sense of the possible repercussions of their acts. None of this idea is to suggest that people won’t continue to rant etc. regardless of age. And none of this idea is to suggest that people should act the same way at all times under some sort of enforced code of conduct (although the idea behind sites that choose to establish rules and use their community norms to shape the rules seems well in line with some of the benefits of the Internet). Rather, as a friend noted, the Internet may be similar to tattoos and piercings. In the near future many more will have them and so it will not be as big a deal. Still, in some areas of life such as politics and upper management, one may have to explain that largish hole in one’s ear or the tongue sneaking out of one’s collar towards one’s jaw. So Internet Ed. may help bring home the idea that certain acts may seem great and even be great at the time but others, and even the person who liked the act at the time, may see those moments differently later in life.

Image Source: WikiCommons

Author: strngwrldfrwl

License: Creative Commons Attribution ShareAlike 2.0 License.

Cross-posted at Madisonian

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 [...]]]> 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.

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”; [...]]]> 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.

Gladwellians, however, might imagine the legal change as a proposed social epidemic, and the judge’s goal to make that epidemic travel as fast, and as widely, as possible. She also wants the epidemic to stick – to embed itself in individuals’ daily behavior, so that post-hoc enforcement costs are low. Thus, she might want to find connectors to send her decision to (bloggers!); talk with mavens about the rules so they can explain them to others (law professors!); and then somehow enlist salesmen to her cause (friendly litigants). To make the message as sticky as possible, she might want to dress it up with provocative rhetoric, or maybe even embed some multimedia in the opinion itself. In short, Gladwell can explain many of the features of the way that the common law today is distributed, and makes sense of, say, the Delaware Supreme Court’s tremendous success at increasing their market share: the justices of Delaware understand the law of the few!

There’s just one problem with this story: it may not be right. Duncan Watts performed a large-scale experiment to test whether nodes improved virus transmission:

In 2001, Watts used a Web site to recruit about 61,000 people, then asked them to ferry messages to 18 targets worldwide. Sure enough, he found that Milgram was right: The average length of the chain was roughly six links. But when he examined these pathways, he found that “hubs”–highly connected people–weren’t crucial. Sure, they existed. But only 5% of the email messages passed through one of these superconnectors. The rest of the messages moved through society in much more democratic paths, zipping from one weakly connected individual to another, until they arrived at the target.

If Watts is more right than Gladwell, it poses a challenge for jurists: what is the most efficient way to distribute legal rules, where you can’t rely simply on nodal governance. Because this blog post is already too long, I think I’ll leave the question open to solicit your thoughts.

(Image Source: The Sick Doctor, Jehan Georges Vibert)

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 — [...]]]> 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.

Copyright law’s original purpose was to govern the publishing industry, and later other commercial enterprises such as music publishing, plays, record production, movie-making, and television broadcasting. In theory it’s always applied by its terms to everyone, but in fact it only applied to businesses that have the capacity to hire lawyers to make sense of vague statutes and conflicting case law, or to morally obvious situations like the pirate who sells knock-off copies for profit. As Alan Latman argued to the Supreme Court in 1972, in other cases, such as noncommercial copying by individuals, “Nobody would sue…, because it’s impractical for anyone to sue.” It’s only relatively recently that this hidden assumption behind copyright law has been exposed, as suddenly the activities of ordinary individuals have started to have a real impact on content owner bottom lines. Increasingly, it’s falling upon individuals, and not just businesses, to understand copyright law.

That would not be such an onerous task if there were clear rules for non-lawyers to follow. But copyright is bereft of clear rules. Take one of the most frequent questions individuals might have about copyright law: is X a fair use?

Of course nonlawyers are often unaware of the complexities of any law, not just copyright law. But the basic elements of most laws are within the grasp of ordinary citizens. Most people understand what libel is, and how to avoid it. They may not realize that opinion is protected (or if they do, that sometimes even opinion can give rise to liability), but they understand the basics that writing something false about someone in a way that harms their reputation can subject someone to a libel suit.

Compare that to copyright law. Fair use is a defense, but since even the basics of what’s protected (e.g., idea vs. expression) and what constitutes a violation (hello, “substantial similarity”) are fairly fuzzy, the question of what noncommercial uses are permissible devolves quickly into a discussion of fair use. And as all copyright lawyers know, fair use is a rabbit warren of questions. It begins with the standard recitation of the “four factors” codified in Section 107, all of which are extremely vague or difficult to apply. It’s a balancing test, so you don’t need all four factors to be present to have a fair use; indeed, it’s not clear any more how much some of the factors (the second and third) even matter. In fact, one of the most important elements of a fair use claim — “transformativeness” — isn’t even in the statute. Nor is there any indication in the listing of the factors which side tilts toward liability and which doesn’t. For that, you need to read some cases. And of course, don’t forget the uses mentioned in the preamble to the factors — “criticism, comment, news reporting, teaching…, scholarship, or research” — not that the preamble is determinative either way. When you’re done compiling the factors and the preamble, take a guess on how a court will rule. That judgement may depend on whether you or your opponent has done anything that strikes the judge as underhanded, even if it’s not traditionally part of the fair use analysis. An appellate court could come out differently.

You can see the temptation for people to boil this down for nonlawyers as “never copy anything without permission” or “all personal use is acceptable” or “copying up to 500 words is fine.” These are attempts to change the design of copyright law to meet the cognitive capabilities of ordinary people. As descriptions of the actual content of the law, however, they all fail.

If fair use and all of the other elements of copyright law are going to depend on being internalized by citizens in order to be effective, they have to be reasonably internalizeable. That means one of two things. Either copyright law will need to find some other means of de facto enforcement — technology comes to mind — or the law will need to be changed to make it simpler. Note, however, that copyright law is complex for a good reason; it’s not very easy to come up with rules that slice neatly along the boundary between things we want to be protected and things we want to be used. That’s why the law essentially leaves it up to the parties to decide what to sue over, and courts to decide cases on a fact-by-fact basis. That works well if disputes are relatively rare. But that situation has changed, and any simple rule that attempts to divide users’ rights and owners’ rights will inevitably, like Solomon, threaten violence to both sides’ interests. Nevertheless, the status quo is unstable. Something will eventually have to give.