Neuroeconomics and Innovation

I'm in LA for the next few days, at the Law, Economics and Neuroscience Conference: Implications for Innovation, sponsored by The Southern California Innovation Project, Theoretical Research in Neuroeconomic Decision-making (TREND) and The Center for Communication Law & Policy. As the press-release says, the idea is to bring together neuroscience researchers, economists, and ordinary law professors and see if the whole is greater than the sum of their parts.

[Gillian] Hadfield [who is organizing the conference on the law side] hopes the symposium will lead to more collaboration among scholars who may appear to have very different goals and backgrounds.

“You don’t usually find scientists, economists and lawyers talking together about the same topic,” Hadfield said. “I think people will find that we can enrich the research agenda of all these disciplines with this kind of cross pollination.”

I hope to blog the conference, or at least my parts in in, over the next few days. I'll be commenting on Mat McCubbins' co-authored paper, The Effect of Institutions on Behavior and Brain Activity: Insights from EEGs and Timed-Response Experiments. In the paper, on Boudreau, Coulson, and McCubbins found that identical cooperative behavior in a trust game seems to arise from distinct neurological mechanisms, depending on whether trust in others arose from incentives or penalties. After the session tomorrow I'll post some of my comments, which intend to connect this paper to the large law review literature on trust.

Posted by Dave Hoffman at 08:15 PM | Comments (0) | TrackBack

Why Aren't Prices Rounded Off?

From the blog "We're Only Human" (which I've just discovered, but which seems great):

University of Florida psychologists Chris Janiszewski and Dan Uy suspected that something fundamental might be going on, that some characteristic of the opening bid itself might influence the way the brain thinks about value and shapes bidding behavior. In particular, they wanted to see if the precision of the opening bid might be important to how the brain acts at an auction. Or to put it in more familiar terms: Are we really fooled when storekeepers price something at $19.95 instead of a round twenty bucks?

Janiszewski and Uy ran a series of experiments to test this idea. The experiments used hypothetical scenarios, in which participants were required to make a variety of “educated guesses.” For example, they had participants think about a scenario in which they are buying a high-definition plasma TV, and asked them to guesstimate the wholesale cost. They were told the retail price, plus the fact that the retailer had a reputation for pricing TVs competitively.

But there were three scenarios involving three retail prices: Some hypothetical buyers were given a price of $5000, while others were given the price of $4988 and still others $5012. When all the buyers were asked to estimate the wholesale price, those with the $5000 price tag in their heads guessed much lower than those contemplating the more precise retail prices. That is, they moved farther away from the mental anchor. What’s more, those who started with the round number as their mental anchor were much more likely to guess a wholesale price that was also in round numbers. The scientists ran this experiment again and again with different scenarios, and always got the same result.

Why would this happen?

Read the post to find out!

Posted by Dave Hoffman at 01:18 AM | Comments (2) | TrackBack

The Future of Sensory Jurisprudence

[This post continues the debate about Whose Eyes are You Going To Believe, the draft paper Dan Kahan, Don Braman and I have recently begun to circulate. For previous installments, see posts on Balkin, CoOp, Volokh (Kerr), and CoOp (our reply).]

As I hope we've made clear, our ultimate claim is not (cf. Kerr) that "Justice Scalia was privileging a conservative white male view" of Scott, but that judges need to be generally mindful of the possibility that their views of facts, and factual dissensus, are as culturally contingent as the public more generally. Thus, we argue for rhetorical humbleness, and for deciding cases on grounds other than a holding that no reasonable juror could see the facts in a certain way. It's a modest response to the large problem of cognitive illiberalism in legal decision making.

In this post, I'm going to make a bigger claim, one which isn't so much based on the paper or my co-authors' views, but is instead just the kind of irresponsible extension of the data that blogging encourages. In short: it's my view that Scott is a harbinger of a whole mess of cases on the near horizon: a sensory jurisprudence enabled by a total surveillance society.

Total surveillance as a concept is one well-explored by other authors on this blog. But even in Dan Solove's well-known post – and subsequent highly downloaded article – about the "I've nothing to hide" problem, the doctrinal consequences of total surveillance were virtually ignored. And by doctrinal, I do not mean the privacy law consequences: I mean the likelihood that as surveillance becomes omnipresent in most public and some private places, judges will use surveillance evidence ["SE"] in an increasing number of cases to resolve factual disputes.

This use of SE would seem to promise more accurate, efficient, and ex-post legitimate litigation outcomes. The theory would go that most litigation is driven by a dispute about the facts: SE should dispositively resolve such disputes, promoting settlement and (at worst) streamlining trials. Best of all, opinions enlisting SE would be more likely to be persuasive. Thus, if Judge Cardozo, ruling on the relative fault of the parties in, say Palsgraf, could have just embedded a video of the events instead of describing it in his beautiful but inscrutable prose, perhaps readers/viewers would have more likely to agree with him. Or in a sexual harassment case, if the workplace was totally taped, evidence of a hostile work environment would be both clearer and harder to refute. And in the case of coerced interrogations, a judge could simply embed a video, instead of describing it, and say: "look, it's obvious!"

The connection between SE and surveillance is (ironically) made stark in a video ... but to see it, you'll need to read past the jump.

But this view of SE and the jurisprudence it will produce is too rosy. As we illustrate in our paper, the "facts" a reasonable jury would find after watching the Scott tape are culturally dependent (and also influenced by demographics, wealth, etc.). In a future where more legal cases are resolved based on SE, the danger is that law will ignore this prism effect, and simply embed the evidence as if it resolved the question of "what happened."

This isn't to say, of course, that surveillance evidence is a bad thing in and of itself. It can improve accuracy, reduce frivolous litigation, and deter wrongdoing (think about the various aspects of the CIA taping controversy). But, as I suggested in my first post on Scott, the idea that surveillance evidence will distill litigation into a simple search for truth is fundamentally misguided:

[C]ourts’ ordinary role to [is] determine legal facts, instead of the truth of the "event." We don't read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. [Scott] has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.

Not convinced? Read the paper (again?). It speaks for itself.

(Folks interested in this topic might also like Jessica Silbey's Judges as Film Critics: New Approaches to Filmic Evidence)

Posted by Dave Hoffman at 01:00 PM | Comments (2) | TrackBack

Violent Movies and Clueless Consequentialism

Researchers have recently "proven" that "violent films prevent violent crime by attracting would-be assailants and keeping them cloistered in darkened, alcohol-free environs." In fact, they estimate that about 52,000 less assaults occur each year because of the showing of violent movies. It's all part of the "Super Crunchers" trend, where economists "crunch . . . numbers to evaluate matters like cheating among sumo wrestlers or the effects of a crackdown on cocaine." Pity that the urge for "clean identification" and headline-grabbing results produces a bizarre overconfidence about the study's extrapolability.

The key mechanism identified here is a substitution of movie-watching for more dangerous activities:

“Economics is about choice,” [one study author] said. “What would these people have done if they had not chosen to go and see a movie? Whatever they would have done would have had a greater tendency to involve alcohol. If you can incapacitate a large group of potentially violent people, that’s a good thing.”

I'll be the first to agree that the study helps demonstrate that, say, those with a propensity for violence are less likely to go out and be violent after watching such a film. But what about the next night, or the night after that? These aggregative, atomized studies do nothing to explore the long-term psychological impact of viewing violence. As Craig A. Anderson, director of the Center for the Study of Violence at Iowa State University, notes,

There are hundreds of studies done by numerous research groups around the world that show that media violence exposure increases aggressive behavior. People learn from every experience in life, and that learning occurs at a very basic level of brain function.

I'd trust individualized psychological research far more than I would follow brute aggregation here. Admittedly, I'm no expert, and I can envision a plausible theory whereby viewing violence substitutes for, rather than encourages, doing violence (though I would guess the "spillover" effect of viewing is far stronger than the "compensation" effect, to use Jon Elster's terms). I can only congratulate the recent study authors on the limited finding that people are less likely to brutalize others on the very night they watch violent films--not on giving us much insight at all on the overall cultural impact of violent films.

Posted by Frank Pasquale at 10:01 AM | Comments (10) | TrackBack

Too Much Happiness?

Increasingly, the study of “happiness” is making its way into legal academic writing. In some analyses it is framed as an alternative to money as a measure of welfare; in others as a focus on addressing the recurring problem of law firm associates’ pessimism. It is applied to tax policy, the calculation of pain-and-suffering damages, democratic institutions, and more. And happiness is making its way into law schools—well, in a sense anyway—with seminars being offered at Yale and Temple Law Schools on, for instance, “Law, Happiness, and Subjective Well-Being.” The study of happiness, and the related research program in positive psychology, are becoming increasingly prominent in law and policy.

The connection to the also-burgeoning literature on paternalism is clear; to the extent different interventions might be able to increase people’s happiness and welfare, is government justified in promulgating such interventions (or even obligated to do so)? That’s a can-of-worms type of question that I won’t get into in this post, but it connects with an interesting new article that indirectly raises the question whether such intervention—even if justified—might in fact backfire. That article, “The Optimum Level of Well-Being: Can People Be Too Happy?,” suggests that even though higher happiness seems to correlate with higher success in other areas, simply continuing to increase happiness might not increase that success consistently. The abstract follows:

Psychologists, self-help gurus, and parents all work to make their clients, friends, and children happier. Recent research indicates that happiness is functional and generally leads to success. However, most people are already above neutral in happiness, which raises the question of whether higher levels of happiness facilitate more effective functioning than do lower levels. Our analyses of large survey data and longitudinal data show that people who experience the highest levels of happiness are the most successful in terms of close relationships and volunteer work, but that those who experience slightly lower levels of happiness are the most successful in terms of income, education, and political participation. Once people are moderately happy, the most effective level of happiness appears to depend on the specific outcomes used to define success, as well as the resources that are available.

We know that “money doesn’t buy happiness”—that simply increasing financial success doesn’t directly correlate with happiness above a certain (surprisingly low) point; here’s an interesting suggestion that above a certain point, happiness doesn’t “buy” success.

Posted by Jeremy Blumenthal at 02:13 PM | Comments (2) | TrackBack

Police on Steroids, Profs on Ritalin

There has been some excellent blawgospheric comment on the Mitchell Report, a Black Sox scandal for our age (see, e.g., Jeff Lipshaw, Howard Wasserman, Michael Dimino and Alfred Yen). My question is: what will be the cultural impact? I think two recent stories on performance enhancement in other fields provide some clues, and suggest the wisdom of the PCBE's worries.

First, the Village Voice has a long story on some possibly inappropriate steroid/HGH use in the NYPD. I say "possibly" for two reasons: 1) the slippery "therapy/enhancement" distinction here and 2) the threat posed by bulked up criminals. The Voice reports that "the Brooklyn District Attorney's Office knows of 29 cops and at least 10 NYPD civilian employees—all well under the age of 60—who have received prescriptions for [steroids for] hypogonadism." Doctors quoted in the story find it implausible that so many officers would have this disorder--but there are probably other physicians who have a much broader concept of disease. And if suspects are bulking up on illegal substances, who can blame the cops for trying to catch up?

The other story is on concentration-enhancing drugs increasingly used not only by students (an old problem), but now by professors. Andrew Sullivan asks, "So if a prof wants to do a little Provigil, it's no worry for me. Why should it be a worry for anyone but the prof himself?" I think there are several reasons, not least the potential for medicalized competition to invade spheres of life we now deem constitutive of our identity. But for now let me just focus on how the police and profs examples intersect.

Think about the balance of scholarship produced in a regime where some labor under the supercharging influence of Provigil, and others forbear. The former will presumably generate more work than the latter. That may be fine in relatively technical fields (who wants to slow down the sequencing of a genome?). But in areas where ideology matters, the potential power of the pill-poppers can be a problem. We need to ask: what are the reasons people are not taking the drugs? A (wise) risk-aversion? A fear of disadvantaging others who can't afford them? A religious concern about "playing God"? And finally, are the people who have all these concerns really the ones we want to be drowned out by super-stimulated, super-productive others?

My basic point here is that Sullivan (and many other libertarians) make an erroneous presumption that the decision to use the drug is wholly distinct from whatever ideology a particular person has. To them, the technology is neutral in itself, and can be freely used (or not used) by anyone. In fact, the drugs fit in very well with certain ideologies and not at all with others. This is an old theme in the philosophy of technology, but is hard to encapsulate in a soundbite (itself a technology far more amenable to some ideologies than others).

At risk of stretching an analogy to the breaking point, I think professors and police face a similarly competitive landscape. The former battle for "mind share," the latter for order. The more we understand the true lesson of Darwin/Dawkins--the pervasiveness of competitive struggle in daily life--the better we can see the need for "arms control agreements" regarding enhancement technologies. (Hopefully they will be more effective than the failed policies of the past.) The question is whether we will permit ourselves to direct evolution or to be the mere products of blind technological forces. Those opting for the latter route make Benjamin's words on the "angel of history" all too prophetic:

This is how one pictures the angel of history. His face is turned toward the past. Where we perceive a chain of events, he sees one single catastrophe which keeps piling wreckage upon wreckage and hurls it in front of his feet. The angel would like to stay, awaken the dead, and make whole what has been smashed. But a storm is blowing from Paradise; it has got caught in his wings with such violence that the angel can no longer close them. This storm irresistibly propels him into the future to which his back is turned, while the pile of debris before him grows skyward. This storm is what we call progress.

--Walter Benjamin, "On the Concept of History", cited here.

Photo Credit: Cyborg Flower, jumpinroo.

UPDATE: Bridget Crawford has more insights here. If you're interested in the law, tech, and theory angle, here's a blog/symposium that Gaia Bernstein, Jim Chen, and I put together.

Posted by Frank Pasquale at 08:05 PM | Comments (1) | TrackBack

This is Your Brain on ... the New York Times

A recent NY Times bit talks about “neurorealism,” that is, people’s increased tendency to believe psychological or other scientific assertions when those assertions are accompanied by images from brain scans. The piece quotes Deena Weisberg, who wrote an article in the Journal of Cognitive Neuroscience documenting this empirically (in both laypeople and, if I remember the article correctly, in experts, though to a lesser extent), and the neologizer, Eric Racine. The piece mentions a newspaper article “about how high-fat foods activate reward centers in the brain,” and asks, “Couldn’t we have proced that with a slice of pie and a piece of paper with a check box on it?” Brian Leiter also noted the Times piece, with a plug for his paper criticizing legal academics’ use of evolutionary biology.

But the Times bit, and these scholars, conflate two very different points. The first is the “credulousness” issue—that people believe the assertions when accompanied by brain images. That’s an important point, especially in the legal context, where judges, jurors, or policy-makers might be exposed to such scans and misled by such scientific “explanations” of behavior. (Of course, it’s not enormously surprising, given past concerns about jurors’ understanding of complex scientific evidence.)

But that’s quite a different point from the dismissive “check box” question, criticizing even the usefulness of such neurological research. fMRI and other such scans can of course provide important and useful evidence, and certainly can tell us more than simple self-reports or even other behavioral studies. Matt Lieberman, a psychologist at UCLA [disclosure: we were in grad school together] and one of those most prominently associated with the newish field of social cognitive neuroscience, has addressed this well, in answering whether SCN provides something more than conventional social psychology. Summarizing just one of his papers on the issue: he points out that fMRI can provide evidence that “two psychological processes that experientially feel similar and produce similar behavioral results, but actually rely on different underlying mechanisms,” such as memory for social and non-social information. It can document “processes that one would not think rely on the same mechanisms, when in fact they do,” such as the common neurological pathways in the experience of both physical and social pain. And more speculatively, he suggests, as “more is learned about the precise functions of different regions of the brain it may be possible to infer some of the mental processes that an individual is engaged in just from looking at the activity of their brains.” This is an important advantage to overcome potential difficulties in, for instance, self-report.

There is of course danger in over-selling fMRI and similar neurological evidence—whether evaluating psychiatric patients, capital defendants, or others—and documenting people’s susceptibility to such over-sell is important. But it’s quite a different question whether such scans can be useful, and to dismiss them out of hand is just as obviously a mistake.

Posted by Jeremy Blumenthal at 10:57 AM | Comments (2) | TrackBack

How the Economics of the Well-Off Can't Help the Uninsured

Two of the most perceptive health policy analysts, Drs. Steffie Woolhandler and David U. Himmelstein, provide a good "reality check" for those who think a Massachusetts-style health plan can fully handle the problem of the uninsured. (Though it took me a long time to figure out their title, "I am not a Health Reform," was a play on Nixon's "I am not a Crook.")

Woolhandler and Himmelstein observe that the past twenty years of failed state-based health care reform (and mandates) do not bode well for the plans now being discussed among presidential candidates:

In 1971, President Nixon sought to forestall single-payer national health insurance by proposing an alternative. He wanted to combine a mandate, which would require that employers cover their workers, with a Medicaid-like program for poor families, which all Americans would be able to join by paying sliding-scale premiums based on their income.

Nixon’s plan, though never passed, refuses to stay dead. Now Hillary Clinton, John Edwards and Barack Obama all propose Nixon-like reforms. Their plans resemble measures that were passed and then failed in several states over the past two decades.

W&H are particularly disappointed by the recent Massachusetts plan; "even under threat of fines, only 7 percent of the 244,000 uninsured people in the state who are required to buy unsubsidized coverage had signed up by Dec. 1. Few can afford the sky-high premiums." W&H should also acknowledge that in some cases the uninsured themselves are responsible; according to one recent study, "twenty-five percent are eligible for public coverage."

W&H suggest that mandates will not work, but do not have the space to fully explore why. I think they are right to emphasize lack of affordability in plans, but a recent book suggests some deeper issues. Charles Karelis's The Persistence of Poverty: Why the Economics of the Well-Off Can't Help the Poor argues that we cannot expect impoverished individuals to react to economic incentives the same way that middle- and upper-class people do.

Karelis asks a provocative question: "what if the choices that truly benefit typical human beings when they're poor are working little and not saving?" He asks us to consider the following scenarios:

In the first, a poor worker with no car or bus fare must walk six miles to work. And let's say this long walk results in six blisters, and six unwashed dishes in the sink at home, and workplace mistakes that bring six reprimands from the boss. Suppose too that getting a bus ride for part of the way would reduce the worker's troubles proportionately, so that each mile she didn't have to walk would mean one fewer blister, unwashed dish, and reprimand. What will the poor worker give up to get a one-mile ride, given that she still has five miles to walk? Probably not much. After all, the sixth blister, unwashed dish, and reprimand tends to be drowned out, like a shout in a riot, by the other five anyway.

But now imagine she has just been given a five-mile bus ride, free. She has only one mile left to walk. What will she give up to get a one-mile ride now? Probably much more than in the first scenario because the difference between the discomfort of one blister, unwashed dish, and reprimand and the discomfort of none is far greater than the difference in discomfort between six and five. If the effect of getting a one-mile bus ride in the first scenario is like that of quieting a shout in a riot, in this scenario the effect of the one-mile bus ride is like that of quieting a shout in an otherwise quiet street.

Karelis offers a number of other examples in a phenomenology of the poor that challenges conventional economic wisdom. If we think of health insurance payments as a form of (probabilistic) saving, we can better understand how many of the uninsured rationally choose to persist in vulnerability. Life is already pretty bad presently; why deny certain small pleasures (or necessities) now to improve an uncertain future?

Of course, we all grow up with Horatio Alger tales, and there are many inspiring microlending success stories out there. But capitalism's chutes and ladders have a dark side, too. Perhaps it's time policymakers stopped trying to scare the poor into certain patterns of behavior--fill out this form, pay this deductible, etc., or you don't get health insurance!--and instead take this particular "blister" of insecurity off the table.

Karelis is a philosopher, and though some may challenge his introspective methods, I can say that coming from a family that often had little money, they often made a lot of sense to me. The more policymakers can meld the insights of a Karelis with empirical works like Sudhir Venkatesh's Off the Books: The Underground Economy of the Poor, the better a chance we have at addressing the persistent disadvantages and insecurity generated by the great risk shift. Here are some closing thoughts from Karelis:

[W]e should reopen the welfare debate that preoccupied liberal and conservative poverty reformers during the 90s. Having agreed that giving poor people resources undermines their motivation for self-help, the liberal and conservative camps fell to wrangling over whether generosity or maintaining incentives ought to be the top priority. (The liberals lost.) But the choice between generosity and maintaining incentives is a false one if generosity actually enhances the motivation for work and investment — by increasing the relief that poor people stand to get from the next dollar. It's time to take another look at no-strings welfare for the truly poor. . . .

Posted by Frank Pasquale at 10:01 PM | Comments (3) | TrackBack

Correlation and Causation in Lawyer Depression

The Wall Street Journal and its Law Blog focus again today on what seem to be irrefutable statistics on the higher incidence of depression among lawyers than among the general population. I don't mean at all to make light of this; too many family and friends deal with this issue, and I realize how complex a combination of biochemistry and environment depression is. I wonder sometimes if environmental stimuli to depression outpaced the evolution of the human body's ability to generate seratonin. (Hmm. Were people clinically depressed, in our modern sense, five hundred years ago?)

But do lawyers become depressed, or do people with a biochemical predisposition to depression become lawyers?

[Cross-posted at Legal Profession Blog]

Posted by Jeff Lipshaw at 11:37 AM | Comments (8) | TrackBack

Does the Phillies' Pennant Mean It's Good to be a Philadelphia Plaintiff's Lawyer?

I had the tremendous pleasure of attending yesterday's 6-1 Phillies victory over the Nationals. In the ninth, the crowd learned of the Mets' loss (and consequent, miraculous, Phillies clinching of the National League East pennant) about five minutes before the scoreboard posted that result, demonstrating the quick response time of social networks. I screamed my head off, and as a result will be hoarse for class tonight. Ironically, I'm teaching acceptance by silence.

But I didn't put up this post just to gloat. That would be wrong.

Well after the game, I wondered about the interaction between sports victories and legal decision making. I know there are studies out there that correlate a home-team's victory with a limited bump in local discretionary spending, and that overall wins (and teams) have negligible effects on economic growth. That makes some sense to me. But sports victories certainly have noneconomic effects. Wins change the atmosphere in cities (like Philadelphia) where there are tightly-connected urban communities. Just to relay an anecdote: this morning, on the subway, I observed someone actually give up their place to a woman transporting two small children. I don't think that happens on an ordinary day in Philly.

Does winning matter for law? It's not implausible, and it is relatively easy to test. I bet that jury awards today for prevailing plaintiffs are higher than average, and that judges are slightly less likely to grant summary judgment. (And visa versa. I would not want to open a civil case before a Queens jury today.) Civic noise certainly matters to legal decisionmakers: if the narrative around town is "the underdog has prevailed," that has got to have some impact on the legal system. All of which is to say: plaintiffs lawyers able to choose cases might consider picking clients likely to go to trial in jurisdictions with winning local sports teams.

Posted by Dave Hoffman at 04:17 PM | Comments (3) | TrackBack

“Facebook in the Flesh”

The Web has often and, I think, justifiably been touted as a democratizing and empowering communications medium. But as with any communications phenomenon of this magnitude, there are bound to be some negative effects. I am not talking here about the threats to children or the ubiquity of online pornography. In more basic social and expressive terms, the manner in which people associate and communicate “online” may be producing certain deleterious effects with regard to such activities “offline.” Although there are likely others, I want to discuss two such potential negative effects.

The first possible negative effect relates to basic interpersonal skills and social networking. As some educators (the author included) are doubtless aware, students have a tendency to resort to email rather than make appointments for face-to-face meetings with instructors. Disembodied or "virtual" communication can of course be quite beneficial in terms of things like convenience and efficiency. But for students, emailing, texting, and participating in social networking sites like MySpace and Facebook are not primarily related to convenience and efficiency; they are now the principal means of connecting to and communicating with others. What effect are these modes of online communication having on real space encounters and interactions? Consider a recent orientation seminar offered at New York University, entitled “Facebook in the Flesh.” As reported in the September 17 edition of The New Yorker, the seminar was apparently designed to teach students how to socialize and build social networks in person -- social processes that a seminar brochure recognized could be very “intimidating” to students. At one point, participants were paired off and given instructions on how to do such elementary things as ask questions and discover commonalities and connections. Thus, one possible negative effect from online modes of expression is the difficulty, and in some cases even inability, to effectively interact with others located in the same physical space. This negative effect may have serious social and economic, as well as expressive, ramifications. (According to a recent survey, time spent at work has not decreased despite the availability of mobile technologies.)

Another possible negative effect relates specifically to the manner in which audiences interact with speakers – public officials, commencement speakers, celebrities, comics, etc. – in public and quasi-public settings. The pratice of heckling appears to be ascendant. A documentary entitled “Heckler” was shown at this year’s Tribeca Film Festival. As reported in the New York Times:

The film . . . argues that hecklers have grown not only more conspicuous in recent years, but more scathing, as more people feel emboldened to partake in public criticism, perhaps in part because the culture of blogs and online user reviews has created a climate where everyone is a critic — and a harsh one. It’s not enough to give performers a simple thumbs down. They must be personally lambasted, humiliated, even virtually willed out of existence.

Heckling, an expressive form that challenges and generally irritates the speaker, may be giving way to the "takedown" -- an expressive form that seeks not only to silence and discredit the speaker but in many cases to assert the primacy of the heckler's own message (a version of the "heckler's veto"). Psychologists refer to the disabling of personal filters (manners) as the “disinhibition effect.” Online disinhibition has been facilitated to a large extent by Web anonymity. But disinhibition is present in many non-anonymous online encounters as well. As the Times article notes, today's heckler, whether online or offline, often wants credit for the takedown. Although some psychologists have suggested a connection between online expressive behaviors and offline disinhibition, one cannot of course establish a direct causal relationship. Nevertheless, there is at least a plausible argument that behaviors like the disinhibited online takedown are seeping into our offline expressive culture. Is this necessarily a negative effect? After all, heckling is a longstanding and even in some sense venerable First Amendment tradition. In today's often minutely stage-managed public domain, some interruption and disruption may be a salutary thing. But there are important differences between heckling a speaker and taking her down. Takedowns undermine basic First Amendment values like tolerance for diverse viewpoints and respect for a speaker’s ability to deliver her message. In an offline expressive culture in which there may be no “audience” of listeners but only a subjectively entitled, increasingly narcissistic, and vociferous group of speakers, such basic First Amendment values will be difficult to preserve.

Is there a connection between these two negative effects? Possible personal networking difficulties and behaviors like the takedown suggest a culture that may ultimately be less socially adept, at least in the traditional sense. As or more importantly, we may be witnessing the gradual decline of critical aspects of our offline expressive culture -- the ability to connect with others in real time and space and to listen respectfully, in silence, to what others have to say.

Posted by Timothy Zick at 10:45 PM | Comments (5) | TrackBack

Shunning Duke's Faculty

A little while back, former Judge, and law school Dean, Joseph Bellacosa (St. John's) proposed that members of the public shun the 88 Duke faculty members who sponsored an advertisement in the early days of the Nifong investigation implicitly condemning the accused lacrosse players. Bellacosa argued that

[A]lthough the group [of faculty members] can't technically be charged with crimes - though abandoning your young and endangering youth sure do come close to real definable crimes - there are ways these professors can be held accountable. The identities of the 88 professors should be posted in significant ways and places, including in the media and on the Internet, so that they may be known for what they have done.

The likely howls of protest from the tenure police, university guild apologists and free-speech absolutists notwithstanding, the professoriat should not be shielded from appropriate public condemnation for their misconduct. Their dormant consciences and sensibilities should be reawakened to the abhorrent nature of the actions they inflicted on their own students.

I am regrettably late commenting on Judge Bellacosa's article, and so this post may be stale. But still. What the heck is going on here?

Finding the original ad put up in 2006 isn't so easy. A follow-up statement by Concerned Duke Faculty member has dead links, and Duke's African-American studies department has removed the page from its server. Fortunately, this blog post pdf'd the ad, which I’ve copied to the right. Unfortunately, Bellacosa doesn’t say, and I don’t understand, exactly what was so wrong about this statement. There are some rumors that the students whose voices are being spotlighted are composites. That would be bad, but not a deadly sin. And the heart of the ad - the statement by the professors themselves - seems to me to consist of a set of vague generalities that verge on truisms, and aren't objectionable:

"Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with everyday."

Regardless, we’re supposed to shame and shun the signatories to the ad. Why?

Posted by Dave Hoffman at 11:13 AM | Comments (11) | TrackBack

It Took Me Years to Like . . .

As a recent victim of Sudden iPod Death Syndrome, I've returned to my antiquated Dell MP3 player. It's a bit of a throwback to the four years or so when I bought it. . . . and I'm tired of most of the pop songs on it. But one album I never liked at the time strikes me as fantastic now--Radiohead's Hail to the Thief. I found it pretty much unlistenable when I bought it.

What changed? When I took a poetry course from Helen Vendler, she once said: "If you don't like a poem now, wait for 10 years, and re-read it." That may sound a bit smug on the computer screen, but I think you'd have been as impressed as I was if you were there. She tended to declaim like the Iris Murdoch of Judi Dench's Iris--always from a minimalist lectern surrounded by hundreds of square feet of empty polished parquet floor.

In any event, I'd love to hear about any book or music it took you years to like. I think the experience is a nice phenomenological confirmation of the problem of affective forecasting.

From the abstract of the article by Jeremy Blumenthal:

I review here the empirical data demonstrating that individuals predict emotions inaccurately, and spin out the implications of this research for a number of substantive legal areas. The data show potential flaws in the way civil juries assign compensatory awards, and in our approach to certain aspects of sexual harassment law. The findings have profound implications for the presentation of victim impact statements to capital juries, but also undercut some abolitionist claims regarding the suffering that death row prisoners experience.

And a final note on Radiohead. . . if you find Hail to the Thief too harsh, try Optimistic....a nice piece of minimalist social criticism along the lines of "the big fish eat the little ones."

Posted by Frank Pasquale at 10:56 AM | Comments (5) | TrackBack

Politics, Private Space, and Total Persuasion

A lunch today with a colleague at another school, coupled with an article in the Wall Street Journal, has brought me to back to a topic I blogged about back in January: Total Persuasion. As I suggested, there are analogies to be drawn between the government's defunct secret possibly ongoing program to gather reams of information about its citizens and corporations' desire to grab consumer mind-share by every persuasive avenue possible. Indeed, we're rapidly approaching a time when it will be exceedingly difficult for the law to draw lines between advertising and not-advertising; between fraud and persuasion; and between censorship and consumer protection.

These claims are easy to overdraw, so let me give you an example and a theory to help set the stage for the discussion. In today's Journal, John McKinnon has a interesting article about Sara Taylor's decision to leave her job as the White House's political director to join the private sector. Taylor is an expert in microtargeting, a marketing technique developed by corporations to segment their consumer markets by mining data to learn more about the structure of consumer’s preferences. According to McKinnon, microtargeting was "honed" by political operations to "more effectively zero in on voters' emotion triggers," and uncover groups of voters that are susceptible to future efforts. Taylor sees a "big future" for taking such political lessons back to the corporate world by "helping corporations focus on potential customers' . . . feelings about buying a product or service."

There are some roadblocks in this prosperous path, as the article points out. Most salient, businesses are "more constrained in the claims they can make" than politicians, presumably by the law of fraud (in its various guises). But there is a solution to this problem: encourage consumers to make their own persuasive advertising by creating "social networks around products and brands . . ." In the future, we should anticipate that such social persuasion will become an increasingly prevalent aspect of corporate marketing efforts, just as politicians have worked to co-opt social networking sites for their own ends.

Why? Because consumers have fewer defenses to social persuasion, and aren’t cynical about it yet. Moreover, social persuasion is probably less subject to legal sanction in the general case (indeed, it may be immune under circumstances where the same language if spoken by the corporation would be actionable). It is also, obviously, cheaper to produce. The downside (loss of control over message) is probably something that corporations will learn to live with. (I thank my lunch companion for pointing this problem out to me!)

What's wrong with a society in which most speech that you hear is designed to persuade you to consume? When framed that way, some might immediately respond: nothing! After all, no one is being compelled to any particular purchase. If the consumer market is efficient, and consumers had a taste not to consume, wouldn't savvy marketers satisfy the taste with a unpersuasive campaign? (The idea is silly on its face, but isn't it sort of what Saturn and Berkshire Hathaway were/are up to?) Even assuming that the consumer product market is somehow irrational, marketers would presumably compete to satisfy whatever inefficient desires are extant.

But I doubt that market rhetoric is going to provide satisfying answers to whether the law should work to hinder a total persuasion society. I haven't fully thought this issue through, but my starting point is an essay by Jonathan Franzen called Imperial Bedroom, in his book How to Be Alone. Franzen attacks privacy advocates for focusing on privacy as just problem of being from free from others' (corporations, the government, space aliens, the U.N., etc.) prying eyes and grasping hands.

Instead, the real loss of privacy in modern society is the "public sphere." He argues that Americans increasingly do not differentiate between public matters and private ones, that there are few places where "codes of dress and behavior are routinely enforced, personal disclosures are penalized, and formality is still the rule." Elsewhere, private life is "brutally invading" public spaces, through the media, cellphones, public conversations about private matters, and, in short, a "pajama-party world."

Franzen contrasts this world with a "genuine public space," a place where "every citizen is welcome to be present and where the purely private is excluded or restricted." He suggests, interestingly, that legal spaces are among our few remaining public places: courtrooms and jury pools, along with art museums and some workplaces, are the rare place where discussions about personal matters are generally missing. (Incidentally, one of unforeseen losses in my move from law practice to the academy is that this public-sphere workplace model is less present. There are compensations for this loss, to be sure, but it is felt.)

There is a connection between total persuasion and the loss of public space. This connection is deeper than the mere fact that public places are being renamed in service of persuasion. I’m not the first to note that the problem with persuasion's ubiquity is that it makes us unable to walk in public without feeling like a targeted consumer. To the extent that our fellow citizens are harnessed to this persuasive effort, this lack of noncommercial space will be all the more keenly felt.

Is the right to be un-persuaded, to develop preferences that are all yours, one that the law recognizes? Not currently, although the movement to get advertising out of school suggests that there is a something to this. Stay tuned.

(Art Credit: Kenney Mencher, Austen's Persuasion, 2005)

Posted by Dave Hoffman at 08:50 PM | Comments (3) | TrackBack

Ten Smiles Per Hour: Tax on the Dour?

Taking a break from weighty topics like world hunger, Peter Singer reflects on an Australian City's decision to encourage cheer among residents:

[T]he city of Port Phillip . . . has been using volunteers to find out how often people smile at those who pass them in the street. It then put up signs that look like speed limits, but tell pedestrians that they are in, for example, a “10 Smiles Per Hour Zone.” . . . . Mayor Janet Bolitho says that [smiling] . . . . encourages people to feel more connected with each other and safer, so it reduces fear of crime – an important element in the quality of life of many neighborhoods.

Singer backs the effort, based on some "happiness research" mentioned in my last post: "promoting friendship is often easy, cheap, and can have big payoffs in making people happier. So why shouldn’t that be a focus of public policy?"

I was reminded of Quentin Crisp's classic comparison of England and America: the former combines a generous welfare state with icy social mores, while the latter has sunny individuals and comparatively stingy social provision. But we shouldn't discount the role of happy cultures in creating happy people; as Barbara Ehrenreich has noted, perhaps the rise in rates of depression "can be connected with the decline in opportunities for pleasure, such as carnival and other traditional festivities."

Some theorists of discrimination might argue that government intervention to change a sticky norm of unfriendliness amounts to a tax on the dour. Why are they being forced to affect sentiments they don't authentically feel? But I think the problem has less to do with "faking it" than with the systematic substitution of, say, well-founded dread with carefree bonhomie. Consider U.S. teens' expectations of future earning power:

American teens believe ... that when they get older they will be earning an average annual salary of $145,500. Interestingly, boys expect to earn an average $173,000 a year and girls $114,200 ... The fact is, only about 14 percent of U.S. households have incomes between $100,000 and $200,000, reports the U.S. Census Bureau. The median household income in the United States is actually $46,326.

Perhaps the boys' keen understanding of current fiscal policy has led them to anticipate a hyperinflation.

Admittedly, the optimal level of cheer (or optimism) in a society is impossible to assess in the abstract. But I think Port Philip's strategy may ultimately backfire. It threatens to set in motion a Gresham's law of public gladness, whereby bad smiles drive out (or at least devalue) the good. Perhaps a certain seigniorage of cheer will increase gross happiness in the short run. But in the end, it may well set us on the road to a situation like that described in Vaclav Havel's essay on the grocer in Power of the Powerless. Grinning done as public duty may be indistinguishable from a grimace.

Photo Credit: Flickr/TobyLeah.

Posted by Frank Pasquale at 02:52 PM | Comments (10) | TrackBack

The Death of Fact-finding and the Birth of Truth

Today's Supreme Court decision in Scott v. Harris is likely to have profound long-term jurisprudential consequences. At stake: whether trial courts, or appellate courts, are to have the last say on what the record means. Or, more grandly, does litigation make findings of fact, or truth?

The story itself is pretty simple. Victor Harris was speeding on a Georgia highway. Timothy Scott, a state deputy, attempted to pull him over, along with other officers. Six minutes later, after a high-speed chase captured on a camcorder on Scott's car, Scott spun Harris' car off the road, leading to an accident. Harris is now a quadriplegic. He sued Scott for using excessive force in his arrest. On summary judgment, the District Court denied Scott's qualified immunity defense; the Eleventh Circuit affirmed.

Justice Scalia, writing for the majority, noted that the "first step is . . . to determine the relevant facts." Normally, of course, courts take the non-moving party's version of the facts as given. [Or, to be more precise, the district court resolves factual disputes in favor of the non-moving party.] But here, the videotape "quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals." Notwithstanding a disagreement with Justice Stevens on what whether that statement was accurate ("We are happy to allow the videotape to speak for itself." Slip Op. at 5), the Court proceeded to reject the nonmoving party's version of the facts. To do so, it relied on the ordinary rule that the dispute of facts must be "genuine": the Respondent's version of the facts is "so utterly discredited by the record that no reasonable jury could have believed him." (Slip Op. at 8).

Let’s get a bias out of the way. At the Court's suggestion, I watched the video. I lean toward Justice Stevens' view: "This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as 'close calls.'" Such a dispute over a common story immediately highlights the most serious problem with the Court’s opinion: we all see what we want to see; behavioral biases like attribution and availability lead to individualized view of events. Where the majority sees explosions, Justice Stevens sees "headlights of vehicles zooming by in the opposite lane." (Dissent at 2, n.1 - and check out the rest of the sentence for a casual swipe against the younger members of the court.) It brings to mind the Kahan/Slovic/Braman/Gastil/Cohen work on the perceptions of risk: each Justice saw the risk of speeding through his or her own cultural prism.

But even if I agreed with the majority on what the videotape shows, the Court’s opinion is disruptive to fundamental principles of American Law. Justice Stevens suggests that the majority is acting like a jury, reaching a "verdict that differs from the views of the judges on both the District court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are." (Dissent at 1). There are several problems with such appellate fact finding based on videotape that the Court ignores.

First, if we take seriously the idea that experience in evaluating evidence brings skill, then appellate judges are likely to be worse at evaluating video evidence than trial judges. Certainly, there is no reason to think they are better. So, imagine a world in which the police routinely videotaped their searches and seizures of homes, and all resulting conversations with suspects. (It isn’t too hard to imagine.) Trial courts would make rulings on the admissibility of evidence based on that videotape, supplemented, perhaps, by testimony from the police and accused. Assuming that such videos would be put into the record, what kind of deference should an appellate court give a trial court on such judgments after this opinion? Current practice accords the trial judge deference because she is “in the room,” and “smells the same air” as the testifying parties. But that approach would seem to be significantly undermined by the Court’s formalation of the purpose of litigation: to determine what “actually happened.” The Scott rule starts to make trial courts into something like magistrates: useful for moving paper and effecting settlement, but ultimately not decision makers.

Second, Scalia's opinion demonstrates its weakness by telling the reader to make their own independent evaluation of the video evidence. Opinions should stand on their own feet. In world where all opinions were freely available online to all citizens, complete with video embedding, we might not care. That world, of course, is coming, but only for those who can afford computers and broadband connections. This characterizes almost every reader of this blog, but only a minority of the rest of the population. To take only a small example, consider prisoners in the state jail. Prisons strictly control internet access, and time, on the theory that the law in the books is an adequate substitute for constitutional purposes. If most courts begin throwing questions from the page to the tape, will prisoners gain a constitutional right to computer access?

But this project is misguided anyway. The majority as much as turns its back on the courts’ ordinary role to determine legal facts, instead of the truth of the "event." We don't read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. The court’s opinion has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.

(H/T: Orin Kerr; More commentary at SCOTUSBlog, which notes that "this decision is a constitutional holding more than it is an essay about facts, and very likely will be applied by lower courts beyond its specific factual setting."; Marty Lederman has charactistically great comments here.)

(Photo: Garrison Photography, courtesy of SXC.)

Posted by Dave Hoffman at 01:41 PM | Comments (22) | TrackBack

Self-Handicapping and Managers' Duty of Care

I have recently posted my symposium essay Self-Handicapping and Managers' Duty of Care on SSRN and Selected Works. You can read the abstract when you click through, so to convince you to download the essay, I'll give you a taste of the introduction:

Authors commonly introduce their works in symposium issues with a few disclaiming words. They identify their scholarship as a “symposium essay,” not an “Article”; a “sketch” of an answer, not a fully-fleshed out argument. Casual readers might conclude that law professors are unusually humble and resist trumpeting the novelty and sophistication of their scholarship.
Social psychologists might instead believe that symposium authors seek to avoid reputational sanctions for publicizing arguments they have not fully dressed. Scholars try to signal an excuse for underdeveloped pieces: “I haven’t worked as hard on this paper as I would have if it were a ‘real’ article.” The goal of this excuse-making is simple: disappointed readers will attribute blame away from the author’s perceived acuity and professional reputation.
This is a symposium essay about the psychology of creating such pre-excuses for failure. Rather than focus on academics, I will examine the failings of overconfident corporate managers . . .

The piece grew out of a post I wrote here over a year ago, and will appear in the Wake Forest Law Review's Business Law Symposium Issue.

Posted by Dave Hoffman at 11:28 AM | Comments (0) | TrackBack

The Athenian Model

The USA Today reports that shirking jury duty is an worsening problem. In response, local registrars are becoming punitive:

Tulare jury candidates who fail to show are warned that they could be found in contempt of court. If they do not respond, a second letter is sent, warning that a warrant will be issued for their arrest . . .
In Danville, Ill., a 19-year-old woman was found in contempt of court and sentenced to 14 days in jail for failing to appear for jury duty.
In Topeka, no-shows have been fined up to $100 a day.
In Grand Rapids, Mich., warrants were issued recently for the arrests of 56 people who failed to go to court and explain why they couldn't serve.

It's a trend. A foolish one. Why are folks always reaching for sticks, when there are carrots near to hand?

Seriously, jailing citizens for failing to be civic minded is, I think, a bad way of encouraging compliance. Why not try shaming, as the Athenians did with their famous red rope?

But, backwards.

Jurors ought to be given a public reward that will encourage norms of civic engagement. Like, say, a bumper sticker ("I love my state so I served on a jury."), a t-shirt ("I'm not too sexy for jury service"), a newspaper advertisement ("Pennsylvania salutes its jurors . . . "), or a red ribbon. Such small rewards will have the incidental positive effect of making people happier with the experience itself. Jail time, by contrast, will only reduce civic support for the jury system, and will be unlikely to be enforced at levels sufficient to really deter shirking. And, tangible rewards are better than the empty rhetoric that currently marks the legal system's approach to the reward-punishment problem:

"Conscientious service brings its own reward in the personal satisfaction that an important task has been well done. The effectiveness of our system of justice is measured by the integrity and dedication of the jurors who serve in our courts."

Posted by Dave Hoffman at 10:30 AM | Comments (14) | TrackBack

Xoxohth 1.1: The Past and Present

[This is Part I, Section 1, of the project I announced here. The goal of today's installment is to set out the history of the XO board, and briefly describe its present statistics.]

Hugs and Kisses, Hope this Helps

The genesis of XO was less gripping, bloody, tortured, significant and miraculous than the Exodus, a tale which it otherwise resembles in important respects.

The community started as a group of posters at the Princeton Review Discussion Board [PR]. Some individuals began at PR in 1997-1998, as they were applying to college, and continued posting in that forum after matriculation. The reason that people spent time - sometimes 20 hours a week or more - at PR will become familiar:

Before I started law school, I posted on the former incarnation of xoxo (which was then run by the Princeton Review) because it was a wide-open and mostly unmanaged discussion. In one sitting I could have the most sober and serious conversations as well as the most silly and immature b******* sessions, all with the same group of people. The other, more "mature" boards were by comparison intellectual wastelands, partly because they were so "sober" and "mature." All the really smart people shunned those boring boards in favor of pr (now xoxo).

But not all individuals were looking for information: some were actually, weirdly, (slumming) older alumni.

The standard foundation story holds that in March, 2004, PR switched to a new software format that users found irritating because it (1) enabled IP tracking; (2) discouraged use of multiple aliases; (3) discouraged abusive language through moderation and banning; and (4) eliminated the "'tree' format and switching to a vBulletin-type format that was heavily despised by most users." See here and here and here for some posts from the period. One emailer explains:

The only moderators were Jeff Adams, a Princeton Review employee, and TPR Droid, who was a long-time poster that Jeff hired to moderate the board when he wasn't around. Anger at TPR Droid's moderation style was one of the main reasons for the initial rift -- while Jeff was even-handed with deletions and bannings, many people felt Droid had an agenda since he would ban people for criticizing his favored posters, or delete racist threads directed at Jews and Christians while refusing to delete equally hateful threads about Muslims.

A group of users decided to leave PR as a group. However,

The law boarders didn't know about the existence of xoxohth. [A user with the handle Rowan] organized an AIM chat and people were brainstorming ideas of how to re-create the board. I think rk even drafted a letter looking for corporate sponsorship . . . In the very beginning, the law and college boards were one. During those heady first days, all personal wars were called off - Edgar Martinez, Julia, RWA, LawyerBird got along - but soon order was restored and things returned to normal.

Obviously, the domain name had been purchased before problems on the PR board became exigent. According to a WHOIS search, the purchase of the xoxohth domain occurred on January 29, 2004. The buyer was Jarret Cohen, now in business in Pennsylvania. As you can see from this screenshot of the early board, it was intended to be a replacement for the PR community. Contrary to Eugene's speculations, xoxohth is not a dungeons and dragons reference. It seems to stand for xoxo (hugs and kisses) plus hth (hope this helps).

It is also worth noting that there was an early worry that the former PR community would split into a college (XO) faction and a law faction, located at the JD2B board. A source comments:

[W]hen Marshall [Camp, JD2B's owner] found out the xo board existed, he not only deleted the JD2B message board, but prominently linked to the board on his site and actively sent traffic our way; basically we were treated as JD2B's unofficial messageboard.

That site probably accounted for 50-75% of our referring URL traffic in the early days

Organizational Control

Cohen's - alias Rachmiel - and another user known as Boondocks (from the comics strip?) coded the initial software for the board, which (of course) was unmoderated. Boondocks, I am given to understand, is an African-American man who, though one of XO's founders, forewent an administrative role after the first two months of the board's existence.

Instead, in about May, 2004, Anthony Ciolli, a Penn Law student, became partners with Cohen. My sense is that Ciolli - alias “Great Teacher Onizuka” (manga comic reference?) - and Cohen split the board's revenues 50/50, and share operational control over the permissions on the site.

Some Statistics

Most users joined the board around March 18, 2004. By June 13, according to a Boston Globe article, the site received “upward of 10,000 posts a day.” In the early days, XO lacked an off topic filter, nor did it segregate into law and college groups. It has since diversified into multiple communities, with some self-filtering for topical discussion.

In my original post, I relayed estimated unique monthly hits for all of the relevant boards under the Autoadmit/Xoxohth domains to be " 350,000 to 500,000." Emailers from all sides expressed considerable skepticism about these data. But I have received reliable evidence supporting the traffic numbers - indeed, it looks like there were about 700,000 unique visitors to the board this past month. Granted, this is application season, so (like the political boards) a 12-month-average is a better way to think about traffic. On that long term horizon, the site has a ratio of first-time to returning visitors of about 2:1. There are, I'd estimate, a group of around 100,000 readers who visit the site on a regular basis. In terms of posts, as I explained earlier, there are something like 6,000 posts a day on the law board, with an additional 5,000-6,000 on the other boards on the site.

Again, this makes the XO board a significantly more popular source of information about law schools and the legal profession than any other law blog, excepting Volokh, whose hit profile it roughly matches.

Next Up: Why do people spend so much time on XO?

Notes and Sources:

1. Some of the information in this post came directly from Anthony Ciolli. I am grateful for his, and Jarret Cohen’s, cooperation to date. I am also grateful to have received many emails from users (and critics) of the XO board. I'm not 100% confident of all of the story I've laid out above, but I'm sure that you will continue to draw attention to my errors.

2. If you have any special insights about XO, you are free to send them to me via email. Unless you tell me otherwise, I will assume that I can quote and attribute any emails.

3. There have been several discussions of this project on the web. For example, check out this XO thread, complete with a fake me, correcting an impression that I am as prestigious as Solove. Way to go, fake me! Also, don't miss this great comment:

"Why do I get the feeling like I'm soon going to feel that I've spent the past few years living in the Bio-Dome?"

Also check out this thread, in which a poster writes:"even for law profs, writing about vulgarity on student message boards is embarassing." Ah, a blog-skeptic. Who can't spell. Join the crowd! Finally, don't miss William McGeveran's post on the project at Info/Law. Bill's comments are open. Mine are not, on the theory that they are likely to be immoderate.

Posted by Dave Hoffman at 06:36 PM | TrackBack

Rock, Paper, Scissors ADR

Via Howard B., I came across this judicial order requiring parties to a lawsuit to engage in a game of "Rock, Paper, Scissors" to settle a discovery dispute. Perhaps the lawyers ought to buy the strategy guide before playing?

Of course, this isn't the only time in recent years that real-world decisions have been turned over to the RPS