Occupational Hazards: Lawyers and Economists

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

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

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

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

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

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

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

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

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

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

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

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

Posted by Neil H. Buchanan at 09:00 AM | Comments (6) | TrackBack

My Day of Jury Service

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

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

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

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

Posted by Dave Hoffman at 07:59 PM | Comments (2) | TrackBack

Oddities from Docketland

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

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

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

"Any character assassination will activate Instrumentality Rule and pierce the corporate veil of the United States and all agencies,"
and
"All testimony will be without immunity - piercing the corporate veil and Instrumentality Rule."

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

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

A letter of marque? Avast mateys!

Posted by Dave Hoffman at 01:08 PM | Comments (1) | TrackBack

Do We Need an Internet Ed. Class?

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

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

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

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

Image Source: WikiCommons
Author: strngwrldfrwl
License: Creative Commons Attribution ShareAlike 2.0 License.

Cross-posted at Madisonian

Posted by Deven Desai at 10:13 AM | Comments (4) | TrackBack

Ranking State Courts

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

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

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

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

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

(H/T: Legal Theory Blog)

Posted by Dave Hoffman at 04:56 PM | Comments (2) | TrackBack

The Neuroimaging of Persuasion: Selling Babies

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

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

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

And from later in the article:

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

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

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

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

Posted by Dave Hoffman at 02:11 PM | Comments (1) | TrackBack

Tipping Points and Viral Law

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

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

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

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

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

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

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

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

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

Posted by Dave Hoffman at 04:57 PM | Comments (3) | TrackBack

What Copyright Law and Plane Crashes Have in Common

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

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

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

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

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

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

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

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

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

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

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

Posted by Bruce Boyden at 04:05 PM | Comments (7) | 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

If It Bleeds, It Leads

In an interesting twist on the old adage of broadcast journalism, "if it bleeds, it leads," CNN.com has quietly modified the news categories on its home page, to replace "Law" with "Crime". When you follow the "Crime" link, you find somewhat greater diversity of coverage, now under the heading of "Crime and Justice".

Perhaps tellingly, though, consider the two teaser headlines on the home page, as I'm typing this post:

"Blood near Marine's likely grave, sheriff reports"

"O.J. Simpson headed to Las Vegas jail cell"

"Crime" is clearly a lot easier a sell than "Law". What might that forebode, though, for the general public's notions of law? What long-term consequences can we expect of a consumer-driven orientation of the mass media to covering "crime" versus "law"? Perhaps few. Perhaps CNN.com is simply a place to go for entertainment and titillation anyway. In that case, it doesn't much matter whether the coverage is of blood spatter or of the Supreme Court. But if this is supposed to be "the news" - somehow, the idea of "All the News That's Fit to Print" comes to mind - I have to wonder.

Posted by Robert Ahdieh at 08:10 AM | Comments (1) | TrackBack

How Should Courts Handle Cultural Dissensus on Summary Judgment?

That's the deep question unanswered by last year's Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority's view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court's position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can't be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

Our results showed exactly that. Dissenters to the Court's view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield's work on “status collectivities," we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects' reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger." The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron's characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I'll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?

Posted by Dave Hoffman at 03:00 PM | Comments (2) | TrackBack

Law Talk: George R. R. Martin

In today's episode of Law Talk, we hear from George R. R. Martin, the prolific author of the "high fantasy" series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I've previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) "The American Tolkien."

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead's distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren't a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn't one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here's the interview again. Warning: it's a big file!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the "Law and Hard Fantasy" Interview Series, see:

• Fantasy’s Apocalyptic Turn
• The Law and Hard Fantasy Interview Series
• An Interview with Pat Rothfuss

Posted by Dave Hoffman at 12:26 PM | Comments (28) | TrackBack

An Interview with Pat Rothfuss

I'm very pleased to bring you the first-fruits of the Law and "Hard Fantasy" Interview Series: a talk with author Pat Rothfuss.

Pat is the author of the new epic fantasy trilogy, The Kingkiller Chronicle. Book one, The Name of the Wind, follows the adventures of a boy named Kvothe as he learns to be an arcanist, something like an alchemist mixed with a wizard, at the "University." The story is largely told by Kvothe in retrospect. It's autobiographic fantasy, if such a genre existed. The book has been highly praised, and for good reason. I read it early in the fall, and liked it more than any fantasy debut I can remember picking up in several years.

I hope you will find the interview interesting. I'll warn you: Pat has a flair for ... earthy ... language, so you are on notice if that kind of thing offends you. My questions are in bold.

I've claimed elsewhere that most "high fantasy" - multi-volume books that intend to tell large stories about pre-modern worlds - contains remarkably little civil law. The agents of the criminal system, like the hangman and the sheriff, are present, but not the civil law courts. Do you agree with this basic description?

Yeah. That's pretty fair.

Can you imagine creating and writing explicitly about a world where magic and a litigation-based, common-law system, co-existed?

Absolutely. In fact, I've written such a world. You don't see much of it in this first book, but there is a working common-law system in my world. I don't think that the rule of law and magic are mutually exclusive at all.

The problem I'm thinking of is that law really self-conceives as a scientific, proof-based, system. Even in rules-based magical system, reality inevitably gets warped.

Hmmmm..... Good point. But honestly, I think that when that happens in most books, it's because the writer is being lazy. Think about England in the 1500's. People believed in magic and the courts still churned along. John Dee claimed to talk to angels. Alchemists were everywhere. People really believed they could transmute metal, and hell, maybe some of them could. That doesn't mean that there aren't still laws against fraud or theft...

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?

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.

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."

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….

I'm curious because the realistic fantasy movement seems, if taken really seriously, to require authors to do a really backbreaking amount of research on wildly diverse fields of knowledge, only a fragment of which will make appearances in the text in more-than-cameo roles.

There’s a lot of truth to that. I wasn’t really aware there was a movement though. I’m just really curious about a lot of things and I bring them all into the book to varying degrees. If you’re a geek like me, and you’re curious about everything, it’s not really much of a burden. In fact, it’s mostly a great excuse for me to dabble a little at everything I’m interested in.

You are an academic...

Woah. Hold on. Those are fighting words where I come from. I'll accept the fact that I work in academia, and that I'm a teacher. But I'm not an academic. Ask anyone.

How is the University Kvothe attends governed? Do the professors have tenure? If not, how is their intellectual freedom protected?

No tenure. The nine masters, each the head of their own discipline, are also the head administrators of the University. Who would fire them?

As for intellectual freedom... How was the intellectual freedom of the Oxford Dons protected two hundred years ago? It wasn't. Or rather, their protection came from the fact that if someone came into Oxford and said, "How dare you teach my child evolution!" they'd laugh their asses off at you. An education was what they said it was, and if you wanted it, you got it from them. They were in control.

Now of course that means that, effectively, they were a self-policing community. And that means that the internal politics were undoubtedly vicious and brutal. I'd have to do more research before I was willing to bet money on it, but I'm guessing that most of the challenges to intellectual freedom came from the academics themselves in those days, not from the outside world.

Do you hate grading exams as much as I do?

I tell you, grading exams is a picnic in the park compared to grading papers. Especially freshman composition papers.

It's not that the writing is particularly bad, some of it ends up being surprisingly good in fact. The problem is that in order for the grade to mean anything, you have to give clear, detailed commentary on the paper, not just a grade. Formative feedback integrated with the assessment. It takes forever and it's exhausting. Sometimes I'll take an hour on a single paper.

What do you do to procrastinate?

Good lord. What don't I do? I read. I'll play videogames if I have them available. I'll do dishes. I'll paint the house.

Sometimes I'll even do online interviews about my fantasy world....

Fantasy (as a category) has exploded in the last decade or two. But most books are pretty bad. I know you've been reading fantasy for a long time, and are a real fan.

First off, I'll have to step to fantasy's defense here. This is a case of "nobody beats up my little brother but me." While I'll be the first to agree that a lot of the fantasy novels out there are pretty bad, it's not a problem that's exclusive to fantasy. Have you picked up the average literary fiction novel lately? Sweet mercy, I'd rather bite out my own tongue.

Hell, even a lot of the classics are pretty bad. Nobody would publish Great Expectations today. And if they did, it wouldn't sell because it's an awful read. That book was pure shite.

My point is that the majority of books in most genres are less-than-delightful. It's not just a problem with fantasy.

So how do you choose which series to invest your time in?

I ask around. Sometimes I read what's popular, because honestly, if a bunch of people are reading it, there's probably something worthwhile going on in there. That's not the best strategy though. I mean, a lot of people out there watch reality TV...

Otherwise, I find authors I like and find out what they read for fun. Then I give that stuff a try. I trust authors more than reviewers for the most part. Not because reviewers don't know what they're doing, but because my tastes more frequently line up with those of other authors, especially those who value the same things I do in my writing: character, language, and story.

Some authors of fantasy books (Goodkind, Pullman, Rowling) appear embarrassed about their affiliation with the category (possibly because in most bookstores, fantasy is sandwiched between the romance and the young adult sections). James Rigney's (aka Robert Jordan) death was significantly less covered than other best-selling authors.

Some fantasy authors are wankers who desperately need a swift kick in the ass. If I wrote a book with a cowboy in it, and a shootout, and a cattle drive, and a whore with a heart of gold. Then I'd have written a western. It doesn't matter what I say; it's still a western. Same is true if you write something with wands and wizards and dragons and magic. You've written a fantasy novel. Deal with it. Learn to cope.

Should fantasy strive towards respectability?

I'm not a big fan of respectability. Will being respectable feed me? Will it keep me warm at night? Will it fill my life with joy? No. In fact, I'll bet a dollar and a doughnut that if I made respectability my goal. My life would suddenly become very flat, stale and unprofitable.

People forget that respect is not the end goal. It is not a quality possessed of an object in itself. Respect is the result of a value judgement other people make about you or something you produce. If my books are solid, full of good story and character, fun to read with good language, then people will enjoy them. Then, maybe, they might come to respect me as an author.

If fantasy writing as a whole strives for quality and achieves it, then the genre will gain respectability. But respectability isn't a means. Respectability is a symptom of quality. We should strive for quality.

Back to the book, at one point we learn about a loan that contains self-help provisions that would be unenforceable in modern courts. How does the existence of this kind of clause in your contract relate to your imagined system of enforcing contracts? [Here, I wrote Pat a long and pedantic description of liquidated damages clauses which I will excise.]

Oh. I see. That’s interesting. I wasn’t aware of that. So how come my credit card gets to charge me extra money if I make a late payment, and that buy 10 CD’s for a penny place is currently trying to get me to give them 100 dollars and a pint of my blood? Is it because non-payment on my part is considered a part of the contract, rather than a breach of it?

To answer your question. The steps that Devi [the creditor] takes don’t reflect much on the legal systems in place in my world. What Devi is doing completely outside the law. In most cases what she is doing is against the law. (Operating as a moneylender without a license.) And in other cases what she is doing is VERY against the law. (Malfeasance, in the old sense of the word.)

One of the things that's surprised me over the last couple months is how many people have missed the fact that Devi is a loan shark. A criminal. I think it’s because she doesn’t fit the stereotype very well. She’s young, pretty, female, articulate and well-educated -- but she’s still a criminal. She doesn’t have Kvothe sign anything because a document would be useless to her; she’s operating outside the law. They don’t really have a contract in the legal sense, they have... an agreement. Implicit in that agreement is “If you try to screw me out of my money or skip town, I’m going to make your life extremely difficult.”

I keep thinking back to the Sopranos. I only watched a few episodes, but in one of them, a guy borrowed a bunch of money and lost it in a poker game. When he can’t pay the mobsters back, they systematically go about pillaging his life to get their money out of him. It’s the same sort of arrangement, really. The main difference is that Devi is much more genteel about how she threatens people.

Anyway, what I’m getting at is that the steps Devi takes to ensure repayment of her loans are extreme. Not because there are no official avenues of legal recourse available, but because those avenues aren’t available to HER.

Is that what you were getting at?

Sort of! I guess that leads to my next-to-last question. In your books, how does "right" and "wrong" map onto what is lawful?

Oh. Good question. Boy... Depending on the country... maybe... 50%? That's a rough guess. They do have rule of law for the most part, but it's a pretty flawed, corrupt system, and most people know it.

Complicating the issue is what system of law they're falling under. There is church law, and common law. Several other social institutions, like the University, create and maintain their own system of rules and punishments. I think the University's system is actually pretty tight, maybe 80 or 90% for them. But what they're dealing with is somewhat limited in scope, most of the things they legislate devolve from the primary assumption that harming others is wrong. That's pretty safe ground.

However, one of the rules is the charge of "Conduct Unbecoming an Arcanist." What does that mean? Well obviously it means just about anything they want. That means that the masters at the university have free reign to trying to enforce their own arbitrary moral judgements on the students. That's where justice always begins to crumble out of any legal system.

Finally, are lawyers today's arcanists?

In the specific sense, absolutely. Rhetoric is one of the main branches of study of the University, and the people who study that are probably training themselves to work in some way with the law.

But in a broader sense the answer is still yes. By nature arcanists gain their power through understanding arcane knowledge. I chose that word because it has vaguely magical overtones, but at it's heart, the word "arcane" means that which is secret or mysterious. My arcanists study several very particular, specialized branches of knowledge that give them control over certain elements of the world. Lawyers do the same thing, just in a very different way.

Great Stuff! Thanks so much to Pat for his thoughtful answers. If you haven't read The Name of the Wind yet, go ahead and buy it. If you find this entire post obscure but have the sneaking suspicion that you are dating or related to a fantasy geek, the book is just the right size to make a good looking wrapped gift. And look for Book Two, The Wise Man's Fear, in the Spring of 2009. Maybe when it comes out, we can have Pat come back for a second part of his interview. I can teach him all about the battle of the forms under the Uniform Commercial Code, or, better yet, the perfect tender rule. Or Raffles!

Posted by Dave Hoffman at 07:35 PM | Comments (6) | TrackBack

Introducing: The Law & "Hard Fantasy" Interview Series

Earlier this summer, I wrote a post titled Fantasy’s Apocalyptic Turn, about the development of the "hard fantasy" movement in modern fiction. As I commented:

[I]t is worth briefly thinking about the relationship between epic fantasy and law. Although the legal aspects of fantasy role playing games are now well-marked out, there has been little work (outside of the Potterverse) on how fantasy authors imagine legal rules' role in society. If epic fantasy is read largely by adolescent boys, this missing attention makes a great deal of sense. You don't see law review articles about Maxim. But, if fantasy, or hard fantasy, has become a literature for the rest of the population, it is worth thinking about the complete and total absence of civil law in these books, and the light touch of criminal law more generally. Is it impossible to imagine lawsuits and magic coexisting in the same society?

This post got some folks blogging - in agreement and dissent.

I'm still interested in the relationship between epic fantastic fiction and law, and I realized that if I really wanted to know about how law makes it way (or doesn't) into fantasy novels, I might as well ask some actual authors about it. So, I got in touch with a few writers who I consider to be among the best practitioners of "realistic" epic fantasy, and I've put questions to them. Now in doing so, I realize that I'm in danger of over-intellectualizing books that require a certain amount of suspended belief to be digested. Worse, really digging into these stories calls to mind E.B. White's quote about frogs and humor. Indeed, as the picture to the right illustrates, law's relationship to magic has the potential to be pretty gruesome.

But it's worth a try. Over the next several months, I'll be bringing you several author responses. Some terrific folks are already on board, including the reigning king of the movement, George R. R. Martin, and I'm hoping for more responses to trickle in. But our first guest is a newcomer to the genre, Pat Rothfuss, author of the new, acclaimed, novel The Name of the Wind. I'll be posting my interview with Pat (hopefully) later on in the weekend.

(Image Source: Examination of a Witch, Thompkins H. Matteson, Wikicommons)

Posted by Dave Hoffman at 03:39 PM | Comments (3) | TrackBack

Why did the US try to Undermine EU Safety Regulation?

As a website relates, "Mark Schapiro's new book Exposed: The Toxic Chemistry of Everyday Products investigates how corporations intent on thwarting stricter environmental and health guidelines here in the U.S. are forced to meet new demands by the European Union." An excerpt from the book compares the U.S.'s oft-toothless Toxic Substances Control Act to the EU's scheme for Registration, Evaluation and Authorisation of Chemicals (REACH). Schapiro notes that "REACH amounts to a revolution in how chemicals are managed, and in how production decisions around the world will be made from now on."

As REACH was being crafted, the U.S. decided to intervene decisively:

[A]s REACH was being debated in the European Parliament from 2003 to 2006, the U.S. government and the nation's industries teamed up to undertake an unprecedented international lobbying effort to kill or radically weaken the proposal. The assault came from an assortment of government and industry offices.

A memo that circulated at the State Department's Bureau of European and Eurasian Affairs denounced REACH as too "costly, burdensome, and complex" for industry to follow. . . [A] Commerce Department brief warned, "hundreds of thousands of Americans could be thrown out of their jobs." U.S. Trade Representative Robert Zoellick submitted a protest to the World Trade Organization asserting that REACH amounted to a "non-tariff" barrier to foreign exporters.

Though REACH promises to become a world standard, the U.S. may soon see itself in the position that Larry Summers recommended for LDC's: "our nation's steady retreat from environmental leadership means it may soon become a dumping ground for chemicals deemed too hazardous by more progressive countries." Schapiro suggests that the bottom line will be an relative increase in European power and quality of life: "American consumers are more at risk than their European counterparts[;] the European Union is . . . gaining the upper hand in regulating the behavior of multinational corporations; and [the EU] is thus amassing more economic power."

Posted by Frank Pasquale at 12:05 PM | Comments (0) | TrackBack

Corporate Governance, the Rule of Law, and Glimpses of the Infinite

Non-sequitur alert. Try to figure what the next two segments have to do with each other. I will get back to you about it below the fold.

* * *

The other day I posted what at the time I thought was a grumpy comment to a post by Jennifer O'Hare of Villanova over at Conglomerate. The gist of her post was whether the failure of a corporation to have a "succession plan" for the CEO position could be laid at the doorstep of the board of directors in the form of liability for breach of fiduciary duty - I suppose either the duty of care or the duty of loyalty in the sense of the more recent Delaware decisions. The genesis for Professor O'Hare's post was a report in the Wall Street Journal that only 50% of public and private corporations had "succession plans." I remind my students from time to time that I'm an ex-corporate shill, and to take any view I profess with that in mind, so readers here are advised similarly.

* * *

I seem to have gotten fixated over the last few weeks on the words "Justice" and "Rule of Law." This all started back in July at the Law & Society Association annual meeting in Berlin, first at an "Author Meets Readers" session about Brian Tamanaha's Law as a Means to an End, and later at a roundtable on which I was honored to participate about the New Formalism. Larry Solum organized both sessions, so it's appropriate to hearken back to my paraphrase at the time of his words capsuling the issue: "We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism." Or to put it in the context of the sociology of Niklas Luhmann (about which there was a concurrent series of sessions going on): it's only within the legal system that the participants operate under the delusion there is Justice or Rule of Law. From the outside looking in, the paradox is obvious: we want to believe there is either a transcendent or immanent, but more importantly, objective right answer, even while we argue from subjective and instrumental positions. The only way the legal system works is with a kind of doublethink; believing in this dialectic that objective truth can somehow arise out of the clash of instrumental interests (to which, of course, Brian Tamanaha objected).

We are, like everyone else, in the faculty appointment job talk part of the year, and I have now heard the idea of Justice and Rule of Law discussed several times in different contexts. One set of job talks had to do with the idea of juvenile justice. Juvenile lawyers (and in our case, juvenile legal clinicians) have to deal with two competing concerns, the best interest of the child, and the obligation of zealous representation in delinquency trials. To put it more plainly, confession may be good for the soul, for healthy development, and for the making of good citizens, but it's bad for the juvenile defendant and his lawyer.

The idea surfaced again in a job talk about school desegregation, and the fact that Brown v. Board of Education (Brown I) was cited in support of three different positions in the recent Supreme Court case on school desegregation (i.e. colorblindness, integrationist, and a hybrid view). The candidate had an interesting thesis: that Brown has a colloquial or popular meaning apart from its technical legal holding. I like that idea, but it seems to me all it is saying is that Brown has become a shorthand reference for "Justice" or the "Rule of Law" in the context of racial equality. So it's no more surprising that everybody cites Brown than than everyone insists, in an instrumental way, that its view is the one consistent with justice or the Rule of Law.

* * *

Well, I have some street cred on the subject of corporate governance, and almost none on juvenile justice or school desegregation, but I am still fixated on these paradoxes in the ideas of Justice and the Rule of Law. So below the fold, I'm going to ramble a bit about corporate governance, the paradoxes of the Rule of Law, and glimpses of the Infinite.

I have a book in front of me by John D. Barrow, "professor of mathematical sciences at the University of Cambridge and a Fellow of the Royal Society," entitled "The Infinite Book." (I should note this book is worth reading if only for the following sentence fragment: "'make me one with everything' as the mystic said to the hamburger vendor".) There is a diagram pointing out a fairly obvious paradox of limits and asymptotes: you can make polygons with an infinite number of sides, but they merely approaching being a circle.

It seems to me we can make an infinite number of rules, but analogously, they merely approach being Justice or the Rule of Law. This is not, by the way, a distinction between rules, on one hand, and principles, on the other, because we can also make an infinite number of principles, and, again, they merely approach being Justice or the Rule of Law.

I wrote an article a while back that tried in a different way to get at the mystery of the way rules approach but do not reach the Unconditioned, a concept that exists even in secular philosophical reasoning. (Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise, in Law, Culture, and the Humanities, 3:82 (2007)). I wanted to pose the idea of rule as reification of something either transcendent or immanent, and the paradox or antinomy implicit in that. I had in mind the idea of "singularity" which is how the cosmologists refer to the state of the universe just before the Big Bang. At the point of the singularity, there are no contradictions, morally, physically, or metaphysically (the Kantian idea of God as well - no tension between virtue and happiness). But then things pop and immediately reify. Hence, you find religious traditions fighting the idea of reification into rules or rituals, and instead searching for the singularity. The big monotheistic religions do it, but badly, and schism over aspects of the reification. So instead we have Kabbalah, or the Tao, or Unitarianism.

The fact is that we sense the singularity (Charles