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 [...]]]> 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.

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 [...]]]> 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.

Privacy and Power

First, there’s the power issue. Note that companies like Lenddo and Klout want access to a complete list of your friends, and their financial profiles, but brag that their own algorithms are “proprietary and secret.” If they really believed in the Silicon Valley hype about “transparency” and “openness,” why not reveal them? Or, if they fear someone will game the algorithms, why not release them after one, two, or five years? And if even that is too trying, how about establishing third party entities to audit the process? James B. Rule highlights the unfairness:

This country’s consumer credit reporting industry ascribes to the great majority of adult Americans a three-digit score epitomizing their potential profitability as charge-account customers, credit card users, or mortgage applicants. As in virtually all systems of mass surveillance, credit tracking and scoring enables institutions to make ever-finer distinctions in their treatment of the people they deal with.

But note that American consumers have no remotely comparable monitoring system to help them choose among retailers, products, and services. This is hardly for lack of need. A consumer-friendly tracking system could furnish the same comprehensive, instantaneously available data to buyers that credit reporting provides to lenders and retailers.

All of this would cost money, though consumer savings would likely make up for the public costs. What’s more problematic is that such a system would require manufacturers and sellers to provide crucial data. They will, of course, insist that such information is proprietary—that is, they own it, and they’re not giving it up. The reasons for such resistance are obvious: Better information for consumers spells potential disadvantage for sellers. . . .

The dramatic discrepancies between these two surveillance potentials—one an ultra-sophisticated reality, the other grossly underdeveloped—are by no means imposed by technology. They reflect sponsorship. This country’s lending and retail industries are simply better organized and more resourceful interests than consumers.

When Big Data’s cheerleaders rhapsodize about understanding our social world better than ever, remember that they are often talking about enhanced methods of monitoring and manipulating those too politically weak to demand privacy (or recompense for its invasion).

Nathan Newman has anticipated the problem will confound even notable enforcement actions:

[H]ere’s the big problem with [current FTC] privacy audits. When they were first being discussed, consumer groups like the Electronic Privacy Information Center (EPIC) asked that any audits be made public. The response from the Federal Trade Commission was not encouraging. They told the groups the audits would not be published but “the public may have access to the submissions required pursuant to the order” using tools like the Freedom Of Information Act (FOIA).

[FOIA exempts trade secrets in many cases.] So the company may be using innovative strategies to violate consumer privacy and will demand that the FTC hide those methods from the public by deeming them “trade secrets.” The joke here is that these companies are systematically violating consumer privacy but are demanding secrecy for the regulatory review of those violations.

As I noted in another context: there is one rule of privacy law for the powerful, and quite another for the powerless. For US courts, trade secrecy remains sacred, even as privacy is eroded at every turn.

Hopeful Monsters: Survival of Cyberspace’s Fittest

Reporters tend to worry that people will change their behavior once the full negative impact of “deadbeat” friends becomes clear. I don’t share that worry presently, mainly because monitoring now is so pervasive that it would be a herculean mental feat simply to keep track of all the ways one could misbehave in the eyes of some digital sensor (or censor). Rating tools may also be so opaque that gaming them seems to be a Sisyphean task. But I do worry that we won’t adequately appreciate the ways in which these services make the world more congenial for certain personality types and less so for others. For example, a person who automatically cuts off contact with “friends in need” may get cheaper credit and more opportunities if Lenddo becomes very successful. Quantified selves who tend to quickly conform to such a gamified social life will also “score.” I’ve already heard stories of Twitterati churning through followers to maximize “Klout.” Both reinforce troubling trends in the US economy’s reward structure.

Of course, we all have such tendencies in us; it’s not as if there’s a certain calculative ideal-type out there ready to take advantage of the new social gamescape of reputation enhancement. Sadly, even that complexity may ultimately be flattened by a world of constant monitoring. Mark Zuckerberg memorably said that:

You have one identity…The days of you having a different image for your work friends or co-workers and for the other people you know are probably coming to an end pretty quickly… Having two identities for yourself is an example of a lack of integrity.

In response, Aaron Bady has drawn on the thought of W.E.B. Dubois to defend “the multitudes of identities we each contain:”

Why is it that people want to control their privacy? It isn’t so much that people want to “hav[e] a different image for your work friends or co-workers,” as [Zuck] sort of innocuously puts it; it’s not an issue of choice for people who need to have a different image for their boss than the one they have in real life. The less the people who sign your paycheck know about you, after all, the less they know that you’re not simply a simple worker-drone toiling away in their sugar fields, and that can be an urgent thing in a time where everyone who works for someone else could be replaced at any time.

But even the less dire firewalls we try to build in our lives are fundamentally about asserting our ability to choose; we hide things from our friends and family to the extent we fear they’ll disapprove and make that disapproval meaningful by intervening. We compartmentalize not because we’re split between different notions of ourself, but because the multitudes of identities we each contain bump up against people’s expectations that we each be a particular way.

When individuals resist the pervasive monitoring of services like Klout or Lenddo (or more traditional data brokers and credit bureaus), it’s not necessarily because they have something to hide. Rather, it’s because they already feel amply manipulated and controlled by existing constellations of knowledge and power. To paraphrase Tarleton Gillespie, “We don’t have a clear sense of how to talk about the politics of th[e] algorithm[s]” now vying to credit or discredit our digital selves as powerfully and profitably as entities like credit bureaus and DHS evaluate our physical selves. Until norms of reciprocal transparency render them as legible as they’d like to make us, it is wise to keep a cautious distance.

*To push the metaphor one more step: Scott Peppet has identified unraveling dynamics that are probably the digital equivalent to sudden methane release from permafrost.

Image Credit: Seanrnicholson.

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 [...]]]> 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.

2) “They should be in Washington, not Wall Street.” Never fear, OccupyKStreet is here. More seriously, this criticism misses the entire point of the protest. Wall Street and Washington have fused. Both politicians and the Fed gave enormous subsidies to large Wall Street firms, while asking almost nothing in return. You can read Larry Lessig’s Republic, Lost, or Kwak & Johnson’s Thirteen Bankers for all the gritty details. For now, let’s just say that entities that borrow at close to zero percent, lend at 4.5 to 20+%, and pay top managers billions in salary and bonuses, are not exactly Steve Jobs-level entrepreneurs. Rather, they’re part of a corrupt revolving door system that sends a favored group back and forth between government and business. We’d do better simply to pay off this shadow elite directly than to subsidize the trillion dollar schemes that maintain the illusion that our banking system is independent.

This is not a partisan critique. Like the OWS protesters, I have focused on the role of the Democratic party in covertly supporting a system that is openly applauded by establishment GOP figures. As Matt Stoller observes, “Rubinites still dominate Democratic policymaking — Larry Summers, Jason Furman, Treasury Secretary Timothy Geithner, Gene Sperling are all Rubin acolytes. Jack Lew, the current Office of Management and Budget director, is from Citigroup; Peter Orzag, the former OMB director, went to Citigroup. White House chief of staff Bill Daley is a JP Morgan man.”

Principled libertarians have also offered Hayekian critiques of the “Government Sachs” nexus. Russ Roberts at the Mercatus Institute has perceptively recognized the close ties between the US state and Wall Street. Amar Bhide has offered a brilliant Hayekian critique of the concentration of power in large financial institutions. From the opposite end of the political spectrum, Michael Hudson pithily observes that “economic planning has passed from government to the financial sector.” Individuals with a wide range of political commitments want to break up megabanks, or engage in more fundamental reform than contemplated in Dodd-Frank. OWS is protesting a form of corporatism that privatizes gains and socializes losses. Anyone who opposes welfare for the poorest should be passionately committed to a program that would cut off the richest from the trough of implicit and explicit subsidy that is at the core of our financial system.

3) “They’re breaking the law.” Were we back in the 1960s, I could perhaps understand how a claque of law-and-order Archie Bunkers could fulminate against the Yippies trying to levitate the Pentagon. If order is your highest social goal, the spontaneous transformation of a soulless, stone-covered city block in Lower Manhattan into a festive site of music and education may spark a frisson. But what’s different today is that the targets of the protest are so clearly lawbreakers themselves. In a 1993 article, economists Akerlof and Romer proposed that “an economic underground can come to life if firms have an incentive to go broke for profit at society’s expense (to loot) instead of to go for broke (to gamble on success).” They called this “bankruptcy for profit,” and its main features have a depressingly familiar ring.

As William K. Black explains in his theory of “control fraud,” the key to business success on Wall Street has been speculative ventures implicitly or explicitly backed by the government or the Fed. As Black has argued repeatedly, to make the scheme work, there must be some form of insurance—–such as public deposit insurance or private policies—–that promises to “make whole” those whose funds are lost in a speculative endeavor. Second, there must seem to be, on paper, some valuation that makes the entity’s investments seem worthwhile. Insurers are not stupid; they demand some evidence that the firm has an overall net worth sufficient to permit it to meet future obligations. These demands lead to the third element: a systematic subversion of the normal tools used to assess the stability and soundness of going concerns. Accountants and auditors are supposed to impose transparency on a firm’s accounts, but can easily be coopted into “aggressive” statements of positions. The looting leadership has a variety of mechanisms at its disposal. Accounting frauds can vastly overstate the value of current holdings. Opacity hides transfers of favors that justify contracts that are irrational on their face.

In a long series of posts, I have described the shady dealings—the special purpose entities, the accounting fraud, the daisy chain of favors leading to CDO sales, the fake insurance (aka AIG-underwritten CDS’s), the epidemic of foreclosure fraud—that generated countless Wall Street fortunes over the past decade. Wall Street’s winners are now trying to leverage those gains into permanent political victories, both to entrench the system of favors that helped them succeed and to cut the “entitlements” that generate rival claims to the public weal. OWS is trying to stop the illicit gains of the past decade from permanently deforming our economy.

As the protesters watch megabanks grab thousands of properties via foreclosures, often through processes that are utterly lawless, they think it equitable and just that they get to claim some small parcel of lower Manhattan as a center for their own deliberative processes. Giving them this space is the least that New York’s increasingly plutocratic and petulant Mayor Bloomberg can do.

4) “They should be thankful for what they have. Real poverty means living on $1 a day.” Rush Limbaugh recently praised a report by one of his advertisers, the Heritage Foundation, which details how good the US poor have it. A full 99% have refrigerators! But of course, selling that refrigerator would only buy about 8 days of food for most families.

The relative inequality point initially intrigued me. As Jared Diamond has noted, “The average rates at which people consume resources like oil and metals, and produce wastes like plastics and greenhouse gases, are about 32 times higher in North America, Western Europe, Japan and Australia than they are in the developing world.” But I no longer see a rational connection between the vast fortunes made by those at the top and a process of globalization that either balances consumption or creates rising living standards for all.

Yes, there are serious moral questions raised by global inequality that renders the average American better off than 90% of the population in poorer countries. As I noted earlier, a soi-disant Green Tory might advocate for more money circulating in the economy’s stratosphere: a luxury handbag costing $80,000 may have less of a carbon footprint than, say, 32 Tata Nanos.

But for anyone truly concerned about the environment, it would be far better to see the handbag consumption turned to sustainable energy investment, rather than continuing as a diversion of spending power away from the poor. Moreover, if domestic and international inequality continues at current levels, it will reinforce the US recession. Even for those who think the average US citizen is too rich anyway, the probable political consequences of perpetual stagnation are frightening. Money is being drained away from an ordinary economy into an economic stratosphere whose denizens appear increasingly out-of-touch with the workers who feed, defend, and otherwise serve them.

5) “They have no demands!” This is the most bizarre criticism of OWS as a social movement. As one organizer puts it, ‘We haven’t had a shortage of demands and solutions. We’ve had a shortage of mass movements.’ Moreover, it’s pretty predictable what will happen once demands get issued officially. If they’re too ambitious, the movement will be dismissed as socialism. If they’re moderate, it will be dismissed as stealth Obamaism, and the protesters will be condescendingly asked “why can’t you just participate in the political system as it is?”

The protesters’ deliberation about what demands to make (or goals to set) is laudable. It also reflects successful aspects of the pro-life movement. As Mike Konczal notes, “Beliefs about abortion are often underdeveloped, incoherent, and inconsistent until individuals become actively engaged with the movement. The process of conviction is the result of mobilization, not a necessary prerequisite for it.” Deciding how to exercise political power in a distributed and democratic way in the 21st century is a huge challenge. I am certain there will be divisions over what issues to prioritize, and how to balance global and local claims. Certainly that process is closer to a democratic ideal than a unified Jacobin cry to drown government in a bathtub.

The protesters realize that they, like much of the bottom 90% of society, are on an economic playing field that is tilted against them. They feel that normal channels of political change are blocked (especially given corporate influence over the Democratic party, the usual target of egalitarian reformist energy). Addressing these issues will take a lot of thought, reflection, and debate.

In conclusion, I just want to quote from a comment of the always thoughtful Patrick S. O’Donnell:

The protesters are participating in a “social movement,” defined as “a summary expression for a variety of collective efforts by the relatively powerless to exercise historical power.” (Richard Flacks) In protesting, social movement actors “break with, step out of, stop complying with, the terms and conditions of their accustomed daily lives.” In doing so, they attempt to influence their life circumstances and the life circumstances of those similarly situated, and this often entails considerable risks and costs. In a sclerotic democracy, we should give thanks to those willing to assume such risks and costs. These protests are in part and for some democratic forms of resistance in dramatic and urgent response to grave threats to accustomed, shared patterns of everyday living (even if some of the preconditions and conditions of such living were, and are, as we saw above, disturbing). Existing ways of life and cherished values are being undermined or threatened such that protests by social movements are the only political means available for bringing the attention needed to appreciate the gravity of such threats.

In many chilling ways, old social contracts are being broken, with nothing provided in their place. Old models of cooperation between the state and the market are breaking down, as incidents ranging from prescription drug shortages to food safety failures show. The global financial system teeters on the brink of meltdown thanks to a potential “Lehman style event” that regulators still have not managed to adequately monitor, let alone circumvent. These are urgent problems that an entrenched business-government elite has addressed listlessly, if at all. (This is not meant to criticize many well-intentioned front-line personnel, just to note that revolving door dynamics for political appointees and woefully inadequate funding often render their work a mere pantomime of effective enforcement action.) Occupy Wall Street has moral authority because it is addressing these problems. Its critics ought to be joining that process.

PS: A final reflection on the system of justice OWS is commenting on:

Image Credit (top image): Waywuwei.

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 [...]]]> 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.

That sounds really abstract, so let me illustrate the idea with a historical example: eighteenth century British welfare.  The population was extremely immobile.  Poor people often were born, lived, and died in a single county.  The local charities that dispensed welfare knew who was a genuine hard-luck case and who was a lout.  They could give aid to the former while refusing the latter.  Then, in the nineteenth century, rapid urbanization occurred.  Poor people suddenly became mobile, and every local dispenser of charity began encountering scores of people he had never seen before.  He could no longer separate out the deserving and the undeserving poor easily.  So dispensers of public charity in England switched to a “workhouse” model.  You were only eligible for government welfare if you live in a workhouse.  Life in the workhouses was crummy.  They were bleak.  They were crowded.  There was no booze allowed. And they put people to work if they wished to be fed.  Unable to sort effectively among different kinds of welfare-recipients, the British develop a test that the “deserving poor” were much more likely to pass.  Instead of excluding the louts from welfare, they forced the louts to exclude themselves.

Today, we’re increasingly coming to resemble eighteenth century Britain, not nineteenth century Britain.  Look at what India is doing with biometrics and databases right now.  They are using modern technologies to “turn back the clock” to the sorts of relationships between the state and the citizen that we saw in eighteenth century Britain.  And they’re correctly invoking notions of meritocracy, fairness, and efficiency to do it.

As you’ve written, there are “digital dossiers” on all of us, which are made increasingly available at very low costs.  Facial recognition software, combined with massive public and private photo databases are eroding privacy in public spaces.  DNA databases are growing.  Behavioral profiling and data mining are exploding.  Location-tracking through GPS-enabled smartphones is becoming commonplace.  So the dynamics of exclusion are shifting once again. . . away from strategies that bundle access to collective resources with disamenities that are unpalatable to members of the group targeted for exclusion.  The government and the private sector have lots of information about individuals once again, so they can sort people themselves rather than trying to induce people to self-assess and self-sort.  My book explores what’s at stake with this shift from one form of exclusion to another.  You can achieve homogeneity with either strategy, but the different strategies produce very different sets of costs and benefits for the people being excluded, the people being included, and the people doing the excluding.

DJS: What do you consider to be the most surprising or controversial implication of your theories in the book?

The most controversial idea is that the government ought to use information policy to affect private actors’ choices about whether to exclude and how to exclude.  It’s uncontroversial that the government can ban private discrimination by employers or landlords.  But we have to realize that the government can affect the incidence of discrimination through more creative tools as well.  Where the government sees employers engaged in statistical discrimination, it can supplement traditional law enforcement tools with “searchlight strategies” to publicize previously private information.  To take a salient example, we know that employers seeking to hire entry-level blue collar workers discriminate against African American males in part because they overestimate the propensity of African American males to have criminal records.  Because of this overestimation, publishing complete information about criminal histories for everyone would likely reduce the incidence of statistical discrimination, increasing the employment prospects of African American males as a group.

I extend this searchlight approach to develop a bunch of proposals for how the state can use information policy to further antidiscrimination interests.  For example, the book proposes promoting the use of Electronic Medical Records as a strategy for reducing physicians’ tendency to prescribe narcotics in a racially discriminatory way, and subsidizing Yelp and Angie’s List to make people less reliant on ethnic preferences in selecting contractors.  These strategies can supplement orthodox tools of antidiscrimination law like public enforcement and private causes of action.

Of course, this approach to combating discrimination raises all kinds of thorny questions: Should the government suppress information when doing so might reduce undesirable forms of statistical discrimination?  Once information is released, can it be revoked if its disclosure surpisingly backfires?  What should be done to weed out false information or customer feedback that are themselves influenced by racial animus?  I talk about the answers to these important questions in the book.

The book also considers whether racism prompts people to move to residential communities built around mandatory membership golf communities.  That’s another controversial hypothesis, and its part of a discussion of how real estate developers are really selecting populations of residents when they decide which amenities should be bundled into a new community. Yet those decisions about bundling go virtually unregulated by fair housing laws.

DJS: You have very nuanced views about privacy, but my sense is that you see a small role for privacy in a well-functioning society — not a large one.  Is that correct?  And you argue that we need to distinguish between instances where privacy is desirable and areas where it is counterproductive.  How are we to make these determinations?  Do you have a set of guiding factors or considerations?

I believe that privacy is an intermediate good.  It can be a means toward important ends, but is never an end unto itself.  Privacy can be undesirable when it results in racial discrimination, or cyber-bullying, or fraud, or sexual harassment in public spaces.  Privacy is worth fighting for when it facilitates human intimacy, or when it nurtures representative democracy, or when it prompts people to seek out medical attention, or when it fosters experimentation that leads to self-discovery.  A satisfying answer to the question, “What’s the benefit of more privacy?” has to be something beyond “more privacy.”  Advocates and scholars sometimes fail to appreciate this essential aspect of information privacy.

To take an example that’s particularly near and dear to my scholarly agenda, can you imagine what life would be like on our urban and suburban roadways if cars didn’t have license plates?  There’d be more “privacy.”  There’d also be a gigantic increase in unlawful, aggressive, and antisocial driving.  We’d have many more roadway accidents and fatalities.  Privacy advocates have helped kill off red-light cameras, automated ticketing for speeding based on EZ Pass or toll booth data, and other traffic safety innovations.  What important interests are being served by privacy in this context?  In the context of red-light cameras with proper data minimization controls, I don’t see any legitimate interest that privacy is serving, but I see a lot of blood on the pavement if privacy interests kill off the technology’s use. There is also the boy crying wolf problem.  Every time privacy is invoked to defend trivial interests, it weakens the force of privacy arguments in contexts where privacy protections do enormous good.

Thanks, Lior, for answering my questions.  Lior’s book is Information and Exclusion (Yale University Press 2011).  This is definitely a book for the must-read list.

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

MGK leads a movement (Youtube)

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

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

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

MGK leads a movement (Youtube)

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

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

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 [...]]]> 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.

First:  tone is cheap. We all learned in first grade how to engage in name-calling, and by junior high most people can engage in basic sarcasm.  It doesn’t take a genius to do either.  Hence my puzzlement by the use in Dave’s thread of the phrase “strong rhetoric” to characterize the kind of angry, overheated discourse that pervades public discourse.  I’d concur with calling this rhetoric “loud” or “hysterical”, and I think equating it to using all caps in writing is about right, but this strikes me as a far cry from strength.  Just the opposite, really:  When someone’s major argumentative move is to yell, or deploy an ad hominem attack, or to use pejorative adjectives in place of substantive reasons, I think this usually means the speaker/writer lacks anything of substance to say, and needs to rely instead on volume or snark or an angry tone as a fallback crutch.  That’s weakness, not strength.

Consider, for example, Supreme Court advocates.  The several that I was fortunate to know when working in D.C. were strikingly soft-spoken.  They didn’t rant or yell or call people idiots for not agreeing with them.  But this enhanced, rather than distracted from, the power of their rhetoric.   The reason they were soft-spoken was that their arguments were compelling enough on their own that they didn’t need to hide behind a smokescreen of bluster, and could let the content of their arguments win the day for them (as it usually did).

Second:  excessive certainty may be inversely correlated with credibility.  A few years back, the Dunning-Kruger effect grew into an internet meme (and an often misunderstood one).  The D-K effect was named after a study by two Cornell psychologists who found that in surveys of various intellectual skills, responders who exhibited the most confidence about their skills in reasoning and logic actually tended to have the weakest actual abilities in those areas.  And the converse:  Those responders who evinced skepticism about their reasoning and logic skills tended to exhibit more abilities when actually tested.  (Full disclosure:  subsequent work has contested some aspects of the D-K study’s results.)

The delicious irony of the D-K result is that while people take cocksureness as a sign that a speaker should be trusted, just the opposite may be true.  Simplistic, rock-solid certainty may actually be a good reason that we should be especially skeptical of whether a speaker has actually carefully reasoned through his arguments in an accurate, rigorous way.  Contrariwise, speakers who exhibit rhetorical coolness—which as I’ve defined it above includes due respect for and consideration of opposing claims—may tend to be more credible because they have likely advanced more nuanced, and hence more rigorous arguments.

[Having said all this, I’ve gotta admit that maybe I am simply engaging in the kind of blinkered cultural cognition that Kahan et al expose in their really interesting work about all this.  We’re all subject to motivated reasoning, after all (which I take to be the reason that rhetorical humility can be effective—it acknowledges the limitations of the speaker/writer rather than cloaking their words in a false veil of objectivity, which can infuriate those who don’t agree).  So my defense of rhetorical coolness could simply be largely the product of my desire to extol the virtue of my segment of the legal profession, which deploys this form of reasoning.  And I’m well aware of the possibility that other elements of the legal profession use—and probably require as a matter of professional norms—a more overheated, frenetic style of reasoning.]

Finally, my defense of rhetorical coolness is a limited one.  I am a believer in this stylistic approach in public discourse about serious matters.  But hotheadedness can have its virtues in other areas.  After all, what fun would it be to use the cool style when watching your favorite team play football?  “True, the ref called holding on our offense, but let’s keep in mind that his vantage point was superior, so we should defer to his expertise.”  No way—it’s much more fun to rant and rave and call Rex Ryan a morbidly obese foot fetishist.

But of course, football and sports are for fun, while the stakes in law and policy are much, much higher.  And the concern about the growing use of the hysterical style in public discourse is that people are indulging in the gratifying fun of “trash talk”—which is perfectly acceptable in the context of something that’s ultimately nonconsequential, like football—about issues that are serious business.  And that means that overwrought rhetoric may not only be an impoverished form of reasoning for the substantive reasons I’ve outlined above, but that its widespread use could have negative outcomes for the polity as well.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 [...]]]> 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.

Balkin’s turn away from adjudication as the definitive moment in constitutional change and his contextualization of courts in broader social change processes have significant implications for constitutional theory. His analysis might lead us away from theories of adjudication that stress judicial minimalism. Instead, in Balkin’s vision, courts intervene in important cultural contests precisely because courts participate in social change along with other governmental branches, and social movement actors look to courts as vital participants. In fact, courts themselves are responding to claims that social movement activists have been making (and honing) in the background for years. (Balkin, p. 96)

Furthermore, extending Balkin’s insight suggests that theoretical and empirical claims about the problematic nature of court-centered change rely on false assumptions about social movements’ use of litigation and courts’ own understanding of their role in social change. As many sociolegal scholars have shown, most movement advocates today do not see courts as saviors, and if they do, will wind up sorely disappointed. Instead, most cause lawyers understand courts as merely one venue in which to press constitutional claims. Legislatures, the media, and public opinion are just as important arenas for constitutional contestation. Since many advocates see litigation as a partial but essential tactic and approach courts with a sober recognition of their limitations, we should pause before scolding courts for ordering social change or for outpacing public opinion. Instead, when viewed through the lens of social movement activity and constitutional redemption, courts participate in the process of social change and respond to constitutional visions being elaborated in other domains by other actors.

In this sense, when I say that Balkin offers us a constitutional optimism, I mean neither that he offers a view of courts as leading social change agents nor that he endorses litigation as the most powerful social change tactic. Instead, Balkin’s constitutional optimism first and foremost is about constitutional claims-making in and out of court, by and for legal and non-legal actors. Balkin’s optimism is not tied to a particular tactic; instead, it is linked to the breadth of claims-making opportunities offered by the Constitution. Accordingly, Balkin’s constitutional optimism is a constitutional realism. It does not ask too much of the Constitution, and it does not ask too much of courts and litigation. Rather, it recognizes the role of constitutional values in the slow and complicated process of social change. Indeed, it also recognizes the failures and limitations of the Constitution and the courts. (Balkin, pp. 6, 172) Change occurs slowly and with the hard work of social movement actors, who articulate faithful, if unimaginable, constitutional visions and work tirelessly, in and out of court, to make them a reality.

Yet the idea that courts are not saviors and that litigation does not work magic does not mean that courts are not often leading venues for effectively contesting constitutional values. Courts often represent the most accessible political venue for subordinated groups and individuals. The Constitution and the courts are open to all. When other venues will not countenance the claims of a subordinated group, the courts must. And the Constitution provides the language on which the group can base its claim. Yet because of courts’ relationship to other levers of political power, what happens in courts – win, lose, or draw – influences what happens elsewhere. Courts do not operate in some realm independent of politics. Rather, as Balkin recognizes, courts have a dialogic relationship with politics and culture; politics and culture are enacted in and through courts, and courts respond to political and cultural changes. Therefore, to abandon courts is to abandon a key player in the broader process of social change – a player that often provides the first opportunities to articulate a political and cultural vision that elites and citizens are not prepared to hear, let alone credit.

The two moves I have emphasized – decentering adjudication and situating courts in a broader context of political and cultural activity – allow Balkin to show how and why constitutional values evolve. A claim moves from “off-the-wall” to “on-the-wall” precisely because the Constitution offers a mechanism for claims-making and courts offer an open venue in which to use this mechanism to speak to legal and non-legal audiences. (Balkin, pp. 180-81)

Surely the context in which I think about these issues influences my favorable outlook on Balkin’s account. In the domain of LGBT rights, constitutional ideals and claims have played crucial roles in first, the mobilization of the movement itself, and second, the success of the movement in convincing elites (including judges) and the public that the movement’s vision is correct. As Scott Barclay and Shauna Fisher have shown in their study of same-sex marriage litigation in Washington state, the claim to marriage in the 1970s did not have a realistic chance of prevailing, but it served other important purposes. By articulating the claim and forcing the state and the courts to respond, lesbians and gay men signaled the potential legitimacy of the claim. After that, leaders of the LGBT rights movement debated the merits of marriage, both as a normative matter (for a movement founded on ideals of sexual liberty and non-normative kinship) and a strategic matter (given the other significant obstacles to lesbian and gay equality at the time); the debate between Tom Stoddard and Paula Ettlebrick, played out in the pages of Out/Look magazine, is now canonical. Appealing to values of equality and liberty, activists, scholars, and constituents aired arguments about why lesbians and gay men deserve marriage as a constitutional, political, and moral matter. Constituents increasingly mobilized around this right. While some municipal governments, universities, and employers were open to partnership recognition, initial attention regarding marriage was aimed largely at judges. When politicians would not listen and the general public found same-sex marriage laughable at best, judges listened – because they had to.

When a court finally validated the claim, the political ramifications were intense. After the Hawaii Supreme Court ruled that the state’s marriage restriction discriminated based on sex and thus, on remand, must be subjected to strict scrutiny under the state constitution, Hawaii voters authorized their legislature to limit marriage to different-sex couples, which it did. And Congress passed DOMA. That, of course, was not the end of it. With more and more lesbians and gay men arguing for the right to marry, movement lawyers recognized that they should bring their own carefully constructed cases before more run-away constituents repeated the efforts of those in Hawaii and filed their own suits. They chose Vermont, and the court ordered equal treatment. Before and after that ruling, through a series of town hall meetings, Vermont activists had been convincing the public that the promise of “common benefits” in the Vermont Constitution includes same-sex couples. The legislature codified civil unions, a step unlikely to be taken without a state Supreme Court order. Massachusetts was next, with the Supreme Judicial Court in that state ordering full marriage equality under state law. A political battle ensued, and a constitutional amendment was averted. Soon activity that was driven almost entirely by courts began to shift to legislatures. Vermont and New Hampshire moved legislatively to marriage equality (from civil unions), and of course most recently New York passed marriage equality, years after the state’s highest court rejected a marriage claim under the state constitution. Now, claims to marriage equality are circulating in courts and legislatures around the country, at both the state and federal levels.

While many Americans probably think of the marriage equality campaign as a recent phenomenon (post-Hawaii, or, worse yet, post-Massachusetts), a more accurate recounting suggests a longer path in which lesbians and gay men took the claim to marriage equality from “off-the-wall” to very much “on-the-wall.” Courts did not immediately agree with the movement’s constitutional vision. Instead, courts responded positively after many years of social movement contestation and the increasing mainstreaming of a constitutional vision of lesbian and gay equality. Now the constitutional right of lesbians and gay men to marry is acknowledged by a significant number of elites and an increasing segment of the general public. Claims made in court sound very much like claims made outside of court. They rely on a vision of equality and liberty grounded in American constitutional principles.

These experiences from the LGBT rights movement bolster Balkin’s account of constitutional change and social movement success in a way that provides lessons for progressive constitutionalism. LGBT rights activists have articulated a constitutional vision that includes sexual minorities. They have connected their cause to earlier episodes of constitutional change. And they have pressed their claims in courts and everywhere else. Balkin’s account is not explicitly ideological; social movements on both the right and left articulate their visions through constitutional values. Nonetheless, Balkin’s analysis, especially when examined through the lens of LGBT rights, has much to say to those struggling to advance a progressive constitutional agenda in the face of a robust conservative movement that has captured the judiciary.

First, one has to actually make claims – real, visionary claims. A progressive constitutionalism will not emerge from a theory of judicial minimalism. Nor will it emerge from purely instrumental arguments aimed at preserving earlier gains. Convincing Justice Kennedy, while clearly important, is not the endgame; and it should not be done without also articulating a more robust constitutional vision that will inspire citizens and translate into powerful political and media frames. As Balkin eloquently writes, “[c]laims of constitutional modesty are not a solution to the problem of constitutional evil; they are a restatement of it.” (Balkin p. 137)

The second lesson relates to the first. Articulating a robust constitutional vision also means not ceding the courts. The conservative movement recognizes the importance of the courts and the relationship of courts and litigation to more far-reaching political and moral claims made on the Constitution. Indeed, when the Alliance Defense Fund first urged religious conservatives to use the courts, its leaders did so based on recognition of the success of liberals and progressives. To avoid the courts, ADF leaders reasoned, is to surrender a key political battleground, one that may yield particularly long-term effects. Now, ironically, many liberals and progressives have done just that – allowing the conservative movement to have its way in court. But the effects do not end there. Successful legal mobilization by conservatives translates into effective political mobilization. Constitutional claims that might flop in court can mobilize constituents. Constitutional visions that fail to convince judges can convince political leaders (who, as Balkin points out, may later appoint judges who are in fact convinced). (Balkin, p. 64)

Balkin’s account of constitutional change and constitutional claims-making reflects the realities of social movement activism and success, on both the right and left. This account makes clear that liberals and progressives cede the courts – and the articulation of a strong constitutional vision – at their own risk.

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 [...]]]> 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.

Many Americans actively dislike soccer, for reasons that have something to do with a vision of anti-globalist national exceptionalism that I don’t think makes any sense.  But even among Americans who do like soccer, the act of diving inspires a level of ire that has always puzzled me.  Soccer-hating Americans have told me that diving is the primary reason they can’t tolerate the sport.  Soccer-loving Americans were apoplectic when a member of the US Men’s National Team was suspected (wrongly, it turns out) of simulating a foul in order to gain advantage.

This moral outrage over diving is not limited to the U.S.  Diving in British soccer is regarded as an attack on the game itself.  Man U manager Alex Ferguson recently stated that “Players who cheat are killing the game.”  And British fans often express the same righteous fury as Americans do when players from South America or southern Europe (or anywhere, really) simulate injuries or fouls in international competition.

This same moral outrage does not seem to characterize soccer fans from South America or southern Europe (disclaimer:  I’m well aware that I’m making massive generalizations when speaking about these phenomena at a national level; my claim is only that they are true in my experience and at a very high level of generality).  People from these countries don’t seem to love it when opposing players seek to gain advantage from diving, and I’ve seen them express frustration at particularly egregious instances of simulation, but neither do they treat it as the ethical abomination that Anglo-American soccer fans tend to.  Why the difference?  I pose some conjectures below:

First, self-serving bias.  Perhaps the reason Anglo-American soccer culture rages so much about diving is that they stand to lose more from the practice.  For whatever reason (quite possibly related to all of the above, though), British and U.S. soccer players don’t simulate injuries or fouls with nearly the frequency that players in South America, southern Europe, and Germany tend to.  So perhaps the moral outrage is simply a reaction to concern that tolerance of diving is going to work to the advantage other countries and teams because those countries’ greater use of the practice it will allow them to gain a strategic edge that Anglo-American players will not have (though they could just start diving too, of course).

Second, a broken-windows theory.  If you live in a milieu where people jaywalk and shoplift all the time, then seeing these things happen won’t really affect you that much.  But if you live in a high-enforcement world where jaywalking and shoplifting are unheard of, then seeing someone cross against a light or pocket a candy bar instead of paying for it are going to seem a lot more outrageous.  Again, because Anglo-American sports fans tend to see a lot less diving, the moral import of the act may loom larger to them than to fans who are exposed to it regularly.

Third: different cultural attitudes about the law.  I just got back from six-plus weeks in Argentina.   During that time, several Argentine folks I spoke to who had visited the U.S. commented on a cultural difference they claimed to have observed:   That in the U.S., rules are to be followed (and typically are followed) because they are rules, while in Argentina people will only follow rules if they think are going to get caught.  So for example, one Argentine friend said that he found risible those street-side American newspaper dispensers that allow people to pay a quarter and have access to all the papers rather than just one.  He observed that in the U.S., people really do take only one paper, while in Argentina (he claimed) people would simply take them all.

If this claim about different cultural attitudes toward the law is true (big if, and to be clear at least one Argentine I spoke to about this thought the comparison rang false), then it may explain different attitudes toward diving.  In Anglo-American cultures, diving is wrong because it’s rule-breaking, and that is worthy of moral condemnation on its own terms (and to be clear, simulation is a formal offense in soccer, punishable with a yellow card), like the no-murder rule.  Murdering is wrong regardless of whether you get caught.  But in some other cultures, including perhaps Argentina, the no-simulation rule is not a moral precept reflecting an ethical imperative, but another rule that we are free to break at the risk of punishment, like a speed limit.  Speed if you want, but don’t whine if you get caught and fined.

The difference is something like that between laws that are malum in se versus malum prohibitum from criminal law.  There are also echoes of it in the efficient or strategic contract breach situation, which surfaced recently during the popular dialogue about the morality of strategic default on upside-down mortgages.

I have a guess about which of these conjectures are right and which aren’t, but I’d be interested to hear other readers’ reactions before weighing in.

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 [...]]]>

If We Were a Game of Thrones Noble House, Our Words Would Be: Judgement is Coming.

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.

“[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 [...]]]> 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!

[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 [...]]]> 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!

Volume 58, Issue 3 (February 2011)

Articles

Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo Credits: Leo Reynolds; gordasm.

For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers [...]]]> The partisanship and bad faith of judges who disagree with us has never been more obvious, or more pernicious. For many, the most irritating personality flaw of judicial politicos (and their fellow-travelers) isn’t the bottom-line results of the opinions themselves, it is that judges refuse to acknowledge their own biases, though it’s evident that they aren’t neutral umpires, but rather players in the game.  Indeed, almost every decision you read about these days comes accompanied by a reference  to the political party of the appointing President – as if you needed the help!  As Orin Kerr has brilliantly pointed out, “people who disagree with me are just arguing in bad faith.”

For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers – is a subject of study and concern.  We decided to take a careful look at this topic — which we’ve previously touched on in work like Whose Eyes Are You Going To Believe. Our motivation was to investigate how constitutional norms requiring neutrality in fact finding interact with individuals’ tendencies to perceive facts and risks in ways congenial to their group identities.  Building on Hastorf/Cantril’s social psychology classic, They Saw a Game: A Case Study, we’ve written a new piece about how motivated cognition can de-stabilize constitutional doctrine, render legal fact-finders blind to their own biases, and inflame the culture wars. Our resulting paper, “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction, results from my collaboration with Dan Kahan, Don Braman, Danieli Evans, and Jeff Rachlinski.  The paper is just up on SSRN, and I figured to jump-start the conversation by using this post to talk about our experimental approach and findings.  (I think that Kahan is blogging on Balkinization later in the week about the normative upshot of Protest.)

Setup:

Protest’s experimental strategy was simple.  We first collected information about the cultural worldviews of a nationally representative sample of subjects, organized through Polimetrix.  We then described for these subjects the background of a lawsuit by political protestors against individual police officers and the police department.  We showed the subjects a video that we described as the major piece of evidence in the case, and which both parties advanced in support of their point of view.  In one condition of the experiment, the protestors in the video were described  as “members of a group that opposes permitting doctors and nurses to perform abortions at the request of pregnant women” [the abortion condition]; in another, as “members of a group that opposes the ban on allowing openly gay and lesbian citizens to join the military” [the recruitment condition].  The protestors’ complaint, the vignette stated, alleged that the police had “violated their rights by ordering them to end their protest at” either “an abortion clinic” or “a college campus recruitment center the day the Army was scheduled to interview students who were considering enlisting.”  Subjects were told that the defendants claimed halting the protest was justified by a law entitled the “Freedom to Exercise Reproductive Rights Law,” in the abortion condition, or the “Freedom to Serve with Honor Law,” in recruitment condition. That law made it illegal for  “any person to intentionally (1) interfere with, (2) obstruct, (3) intimidate, or (4) threaten any person who is seeking to enter, exit, or remain lawfully on premises of” either “any hospital or medical clinic that is licensed to perform abortions” or “any facility in which the U.S. military is engaged in recruitment activity.” We told the subjects (acting as jurors) that they were to decide a series of factual queries about this standard, and then tell us whether they thought the police were liable.  [If you like, check out the abortion and recruitment videos.  You will observe, if you are a HLS graduate, some familiar sites.  But come back!]

We had several hypotheses, which essentially predicted that subjects’ worldviews would be various threatened and affirmed by the underlying activity (recruitment, abortion) and behavior antagonistic to it.  As per usual with our work, we employed scales that characterized the worldviews along two dimensions. The first, Hierarchy-Egalitarianism, measures the subjects’ orientations toward social orderings that either feature or eschew stratified roles and forms of authority. The second, Individualism-Communitarianism, measures their orientations toward orderings that emphasize individual autonomy and self-sufficiency, on the one hand, and those that emphasize collective responsibilities and prerogatives, on the other. Combining the two scales generates four sets of worldviews—“hierarchy individualism,” “hierarchy communitarianism,” “egalitarian individualism” and “egalitarian communitarianism,” to which individuals’ affinities can be measured with continuous worldview scores.  Two major hypotheses were that (1) egalitarian individualist subjects would form anti-demonstrator fact perceptions in the abortion condition but pro-demonstrator perceptions in the recruitment center condition; and (2) hierarchical and communitarian subjects, by contrast, would form pro-demonstrator fact perceptions in the abortion condition but anti-demonstrator perceptions in the recruitment center condition.

Results:

Main Effects

Subjects were closely divided in both conditions.  Considered apart from the experimental manipulation, moreover, cultural worldviews likewise appear to have no meaningful effect on reactions to the video.  There was no evidence, then, that being inclined either toward hierarchy or egalitarianism, toward individualism or communitarianism, or toward any combination of the two disposes individuals toward pro- or anti-demonstrator reactions irrespective of what subjects believed about the political cause of the demonstrators.

For purposes of these estimates, the values for the cultural worldview predictors were both set one standard deviation from their means in the directions necessary to form the specified worldview combinations.

However, when we control for condition, we find dramatic differences.  In the abortion-clinic condition, 70% of the Hierarchical Communitarians found that the police had violated the demonstrators’ rights. Yet in the recruitment-center condition, only 16% did. Matters were the other way around for Egalitarian Individualists: 76% of them concluded that the police had violated the rights of the protestors in the military-recruitment condition, yet only 28% of them took that position in the abortion-clinic condition.  We can generalize to create scales reflecting our subjects’ responses to multiple fact and outcome items into a single “pro demonstrator” or “pro police” orientation.  The figure to the left plots the relationship between cultural orientations and judgments.

As you can see (perhaps more clearly if you click on the figure), the estimated scores for Egalitarian Individualists and for Hierarchical Communitarians scales flip.It is also evident from the estimates that Egalitarian Communitarians became significantly more pro-demonstrator,and  Hierarchical Individualists significantly more anti-demonstrator, in the recruitment-center condition as opposed to the abortion-center condition. Whereas the difference between Egalitarian Individualists and Hierarchical Communitarians is significant in both conditions, the difference between Egalitarian Communitarians and Hierarchical Individualists is significant only in the recruitment center condition.

As one would expect, these differences in case-disposition judgments are mirrored in the subjects’ responses to the fact-perception items. Whereas only 39% of the Hierarchical Communitarians perceived that the protestors were blocking the pedestrians in the abortion-clinic condition, for example, 74% of them saw blocking in the recruitment-center condition. Only 45% of Egalitarian Individualists, in contrast, saw blocking in the recruitment-center condition, whereas in the recruitment-center condition 76% of them did. Fully 83% of Hierarchical Individualists saw blocking in the military recruitment-center condition, up from 62% in the abortion-clinic condition; a 56% majority of Egalitarian Communitarians saw blocking in that condition, yet only 35% saw such conduct in the recruitment-center condition. Responses on other items—such as whether the protestors “screamed in the face” of pedestrians and whether the protestors intended only to persuade or instead to threaten—displayed similar patterns.

In summary, motivated cognition not only polarized individuals of diverse cultural outlooks but also generated contradictions in what subjects of a shared orientation reported seeing. Relatively hierarchical and communitarian subjects rejected the proposition, credited by relatively egalitarian and individualistic ones, that demonstrators were blocking access to a facility represented to be an abortion clinic; yet when hierarchical communitarians understood the demonstrators to be objecting to the exclusion of openly gay and lesbian citizens from the military, they agreed the protestors were blocking access to the same building—a claim that egalitarian individualists now overwhelmingly dismissed. Subjects subscribing to a hierarchical individualistic outlook as well as those adhering to an egalitarian communitarian one exhibited similar shifts in perception.

If you want to know how we think these experimental findings influence constitutional fact-finding, and judicial rhetoric, you’ll have to either read the paper, read Kahan on Balkinization, or come back for more here later in the week.

“When the top 5% account for 35% of consumption in the US, there is no way to improve “the economy” (as measured by stock prices and GDP) without intensifying the very inequalities that gave rise to the crisis in the first place.  A weak labor market can’t bargain for the gains from productivity—they are going to the very top. Since the midterms, the President has shown little inclination to fight to tax those gains; rather, he cemented them into place with his recent [...]]]> The Conglomerate ran a symposium last week on executive compensation, sparked by Say on Pay.  My contribution, which talks about the effect of unionism on pay, is here.  My post there is a bit of a elliptical response to Frank’s recent comments on income inequality, which assert that:

“When the top 5% account for 35% of consumption in the US, there is no way to improve “the economy” (as measured by stock prices and GDP) without intensifying the very inequalities that gave rise to the crisis in the first place.  A weak labor market can’t bargain for the gains from productivity—they are going to the very top. Since the midterms, the President has shown little inclination to fight to tax those gains; rather, he cemented them into place with his recent tax deal. The inequality-intensifying dynamic is now self-reinforcing: those who bankrolled the fight against Obama’s modest efforts to tame inequality are more powerful thanks to their political victory in November.”

While I understand Frank’s point – and I think that the statistics he provides about relative income growth are sobering – I think that blaming law makers for failures to rein in inequality seems to me to put the cart before the horse.  We should really be asking whether the relatively more egalitarian consensus about social wealth distribution that held from 1940 through 1970 was (as Frank’s post suggests) an ordinary one in American history, and, if not, what caused it rise and to fall.  I suspect that law – including tax law – would play a pretty small role in that causal story.

Prompted by students, I’ve been thinking recently about the ALWD Citation Manual.  In doing so, I’m aware that I’m deeply in the weeds of legal-academic esoterica. Indeed, even thinking about writing about citation probably would be #2 or #3 on the list of things that distinguish airy and irrelevant law professors from grounded and practical lawyers.  Regardless, the topic seemed a good fit for a blog post, so here goes.

As you probably don’t care to know, the ALWD offers a non-bluebook approach to legal citation, designed to be authoritative (being created by legal writing professors, not students), coherent, and easy-to-use.  At various times, it’s been adopted by a large number of law school’s legal writing programs.  The biggest problem with the [...]]]>

Why Hasn't ALWD Succeeded?

Prompted by students, I’ve been thinking recently about the ALWD Citation Manual.  In doing so, I’m aware that I’m deeply in the weeds of legal-academic esoterica. Indeed, even thinking about writing about citation probably would be #2 or #3 on the list of things that distinguish airy and irrelevant law professors from grounded and practical lawyers.  Regardless, the topic seemed a good fit for a blog post, so here goes.

As you probably don’t care to know, the ALWD offers a non-bluebook approach to legal citation, designed to be authoritative (being created by legal writing professors, not students), coherent, and easy-to-use.  At various times, it’s been adopted by a large number of law school’s legal writing programs.  The biggest problem with the ALWD is that it isn’t The Bluebook.  Differences between the ALWD and the Bluebook aren’t always trivial in a world where minor differences in citation format can change a student’s first-year legal writing grade and determine membership on a law review.  When graduating from law school, ALWD followers may thus experience the same frustration that confronts users of obviously superior Dvorak keyboard.  Or, since the ALWD is  pushed by a tightly-knit, organized, guild of legal writing professors, perhaps the better analogy is to Esperanto.  If we all spoke the constructed language of peace and understanding, and cited our speeches using ALWD, we would better understand each other and be less aggravated by missing the commas between see and e.g. Alas, neither ALWD and Esperanto has gotten the market reception that their backers hoped for.  Why not?

To inquire a little bit into this topic, I asked one of my LRW colleagues to circulate to the LRW-professor list a question about their experiences with teaching citation. I got a ton of responses, for which I’m quite grateful.  They follow, shorn of attribution, after the jump.

Several professors asserted that there aren’t meaningful differences between the ALWD and the Bluebook.  One interesting point is that lawyers are actually pretty ignorant of the current version of the bluebook, and instead are reacting to what Cardozo might have called the “half-remembered truths” of their old journal experiences:

“Some LRW profs (myself included) at my school have used the ALWD Manual for 10 years and continue to use it.  I think students find it easier to use.  At the end of the year we discuss that it really isn’t very different from the BB.  Most users (e.g., the ordinary practitioner) wouldn’t know the difference–especially because practitioners often know only the version of the BB that they studied in law school.”

This theme was repeated by those who like ALWD, even those who do not currently use it.  Said one proponent,  ”changes to the Bluebook from edition to edition are often more significant than are the small differences between the ALWD Citation Manual and the Bluebook.”    But others disagreed:

“Are the differences great?  No, but in the law review competition, you strive for perfection, because citation points are “easy” points.  Further, any journal you work on in your second year requires that you cite check according to Bluebook standards.  As a result of having to help students make these adjustments and learn and then relearn a new system at the end of the year (when they have enough to do), I do not believe that anyone is currently using ALWD at [my nationally renowned law school].

Bluebook may have its faults, but it seems to me that ALWD has not been the answer to those problems and has instead become more and more like the Bluebook with just a slightly different set of rules.”

Many professors reported that they – or their schools – have turned away from the ALWD.  Their reasons were varied, but most rested ultimately on market pressure:

“I introduced the ALWD citation form to [my law school] eight years ago and got an early acceptance by the faculty and the students. Within three years the school chose to return to the BB. Why, you might ask? Because the [law] students went into the marketplace and when queried about citation form, i.e. “Do you know how to create Bluebook form citations?”, the students were telling employers that they knew the ALWD form. Unable to explain that the two forms conflicted on only a couple of rules, prospective employers would not hire them. Back to the BB.”

Another explained that:

“We stayed away from ALWD at [my law school] because our students went into practice in major firms and federal clerkships, and none of those constituencies were considering ALWD citation form.  Indeed, many of the lawyers in those places were alumni of the Bluebook institutions.  This turned out to be a wise choice because our dean called me in one day in a panic because the word on the dean list serve was that lack of Bluebook literacy could get students fired (it had happened somewhere).  I assured her that we used the Bluebook.”

The market pressure isn’t just from private sector employers. One professor reported that in the ABA National Appellate Advocacy Competition, “students are no longer permitted to use the ALWD citation manual; they must use the Bluebook.”

As another LRW professor pointed out, the Bluebook & the ALWD both purport to provide national rules, while jurisdictions (like Illinois and New York) create state-specific citation rules.  Thus, “students have to learn one system in order to make adjustments to the local rules requiring a different format, just as they have to do research on the law of their own jurisdiction on any subject, which may be different from what they learned in the law school class on that subject.”  Thus, schools may choose to teach both the Bluebook and ALWD as a part of a campaign to educate students on the diversity of citation practices:

“Last year and this year, we moved to a new approach for our integrated two-year program. We teach ALWD in the first year and Bluebook in the second year. We tell the students that there are many citation manuals they will encounter and that ALWD teaches the fundamentals of citation, which make learning and understanding the Bluebook easier. I think this is true. This year we also plan to introduce the students to the California Style Manual at the end of the first year. Those who practice in state courts here in California, will use this book and not the Bluebook or the ALWD for court documents. We have heard fewer complaints from journal students under this new approach and we have had many students say that they prefer the ALWD manual and are glad they did not have Bluebook in the first year.”

Personally, the idea that we might profitably use law school credit hours to teach differences in citation format speaks a great deal to the weakness of our national guild and educational system. There’s no good reason at all for different courts to have different citation systems – any more than there is for different states to have such oddly-distinct reporters.  We ought to have a nationally-uniform citation and reporting system.  We don’t, and it’s clear (to me, anyway) that the ALWD isn’t making much headway on that project.

Part of the reason that the ALWD hasn’t succeeded at displacing the Bluebook is path dependence.  But that can’t be the whole story. I think that status – particularly, the status of LRW teachers in the legal academy, and ALWD’s proponents in particular – is part of the tale as well.  If the Deans at Harvard, Yale and Stanford got together tomorrow and announced that their graduates would be trained in the HYS Citation Manual, identical in its last italicized detail to ALWD, I imagine that the Bluebook’s days would be numbered.  Figuring out why LRW professors have more status and influence at relatively lower-ranked schools is an interesting issue, but it isn’t one that this blog post can say much about.  What do you think?  Are you -and I shudder even to ask- a Bluebook fan? Does ALWD light your fire?