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The Role Law and Literature Should Play in a Law School

Some may ask what role should liberal arts style courses play in law school where we are increasingly focused on bar exams and practice ready skills.   It may take me a while to unravel that answer with the gusto and the framing it deserves.  I think anyone that regularly teaches Law and Literature has been asked some variant of this question.  The course doesn’t have the safe luxury of “well its on the bar exam,” or even the more sardonic return of “well, but of course it underlies much of legal thought and practice.”  See, e.g., Law and Econ, Law and Social Theory, and Legal History.

Let me make a bold proclamation.  The law and literature course, perhaps more than any other, asks students to wrestle with their subjective views of the law.  It’s interesting, in a course that deals with Constitutional Law, for example, there is the finality of how the court approached the problem (whether we agree with the outcome or not).   In Law and Literature on the other hand, the course encompasses the views of the professor, the authors, and their fellow students as they encounter these views.  Sometimes worlds are created in which those concrete legal frameworks are disembodied (See, e.g., Margaret Atwood’s The Handmaid’s Tale).  Sometimes, the fictional worlds embrace the world as we know it, and offer stunning critique to its foundation (See, e.g., Harriet Beecher Stowe, Uncle Tom’s Cabin). That’s not to say that other courses, (take a UCC course), is not rife with highly charged emotional queries (notwithstanding my critique, my explanation for whether the disposition of collateral equates to proceeds is a highly charged event!).  It is saying that in a time where the ABA is prompting law schools to create standards that push the law school experience towards so-called objective standards of evaluation (see revision of section 302 in the ABA standards), the role of encountering, critiquing, explaining, and understanding different subjective understandings of the law is critical.   We should not be afraid to encounter nor express our subjective views in the context of critical dialogue.

My view is that Law and Literature is a course that offers students not only the opportunity to understand themselves better but to learn to dialogue about the subjective views of law.  A few years ago, Yale Law School offered a course titled “The Book of Job and Suffering.” Unfortunately, at many law schools such a class would never be taught for fear that the subject strayed too far from what law schools are suppose to do — at least not under that title.  However such a course is precisely the kind of law and literature course we should be teaching. Isolating the critical component that suffering may play in the narrative for law students, I imagine, was a powerful experience for those students and the professor.  Powerful because they all have suffered something, I’m sure, though undoubtedly it was uneven.  Students learn to dialogue about themselves and the text in a group where each other’s respective experiences help frame and isolate the way the text moved within the group.   At one and the same time, students in a law and literature class learn about themselves, as members of a group, a class and as an individual.   This is the idea of Law and Literature that James Boyd White framed so well — the engagement of the reader with the text forcing the reader to accept or not accept the writer’s framed world. [Perhaps Boyd’s best framing of this encounter is his book This Book of Starres: Learning to Read George Herbert, in which Boyd wrestles with the text as reader primarily].

This role of teaching students about themselves is critical if not necessary to shaping who they are as counselors and advocates for their clients.  Of course they are things we should care about as shaping lawyers. But should we have to isolate them into an ABA objective or standard.   In a way, it cheapens the process to do so.

I fear that courses like Law and Literature, in which students engage in thoughtful discourse, may find themselves replaced with others that fail to live up to the promise of helping students understand themselves in a legal environment and instead only focus on the particulars of interacting in the legal environment.   There is nothing wrong with a movement in legal education that attempts to focus institutional resources to critically examine whether the law school is best preparing students for the modern legal environment.  But, that doesn’t mean that our students [or our faculty] are better off without having the dialogues and communities that law and literature help promote and shape in the law school environment.

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Vaccination Negligence

I thought I’d offer some thoughts on an issue that is starting to get attention:  Should parents who choose not to vaccinate their children against standard childhood illnesses (measles, mumps, whooping cough) be held liable if their child makes someone else’s child sick with one of these diseases?  For purposes of this discussion, let’s make two assumptions.  First, the choice not to vaccinate was not made for religious reasons.  (That presents a more complex problem.)  Second, there is no contributory negligence (in those jurisdictions) or significant comparative negligence (in jurisdictions that bar recovery when plaintiff is more negligent than defendant) by the parents of the sick child.

The most plausible factual scenario goes something like this.  Plaintiff’s child is too young to be vaccinated fully against a disease or cannot be vaccinated for some unavoidable reason.  This child is exposed to defendant’s child, who is old enough for full vaccination but was not given vaccine and is a host for the disease.  The choice not to give vaccine is made because of concern about the risks that vaccines pose, the belief that they increase the chance of becoming autistic, or some other non-religious reason.Now the question that will generate the most controversy is whether parents are negligent for not vaccinating their child under these circumstances.  I want, though, to focus on how the causation issue would play out.  How would a plaintiff show that exposure to defendant’s child was the cause of the disease?

Here we face an ironic problem.  One thought behind vaccination is “herd protection.”  The idea is that if everyone in a given population who can be inoculated is inoculated then it is far less likely that those who cannot get vaccinated will get sick.  (You can argue that those who are not vaccinating are free riding on those who do.)  When it comes to legal liability, though, herd protection favors those who choose not to vaccinate.  The more children there are like that, the harder it will be for a plaintiff to show but-for cause with respect to any individual child.

How should courts deal with that?  Is the answer that these claims should be viable when a plaintiff can prove that only one child could have exposed his or her child to measles?  Or should we shift the burden of proof to defendants?  Is this a Summers v. Tice situation (at least if we could narrow culpability to a few children)  That question depends, in part, on how bad we think not vaccinating is.  Generally the more egregious the wrong, the more likely we are to extend the scope of causation to hold the wrongdoer liable.

Anyway, I’m sure this will be litigated at some point, and it’s a topic to watch.

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What Did They Put in the Water of PA’s Prosecutors?

Pennsylvania’s Supreme Court Justice receiving hard-core pornographic emails? Check.  Another Justice using that fact as an opportunity to call for his long-term rival’s resignation? Check. My friends: the problems of Pennsylvania’s legal culture, in one nicely-wrapped, festering, package. And now, the made-for-Above-the-Law story is getting worse:

“Attorney General Kathleen G. Kane’s unprecedented move to expose the swapping of pornographic e-mails on state time has so far cost four men their jobs, put another at risk of being stripped of his state post, and left three others deeply embarrassed.

All of them may be collateral damage.

So far, Kane has not landed a major blow on the man who sources say has long been her main target: former state prosecutor Frank Fina.

In fact, she’s been muzzled from doing so …

Fina is a career prosecutor known for high-profile public-corruption cases at the Attorney General’s Office. He now works for Philadelphia District Attorney Seth Williams.

Numerous people with knowledge of their quarrel – including sources close to both – have said Fina participated in the exchange of X-rated e-mails.

According to the same sources, Kane was intent on making that fact public.

She wanted to expose what she believed was an entrenched misogynistic culture in the Attorney General’s Office when Fina was a ranking prosecutor and before she took charge, people close to her say.”

According to the story, Fina obtained a gag order preventing the Attorney general from evening mentioning his name by going to a suburban judge overseeing a grand jury, on the theory that “Kane’s office was using the threat of tying him to the sexually explicit e-mails to intimidate and silence him and others.” But today’s story (seemingly by sources close to the Attorney General) would appear to sap the vitality of that gag order, which may now be extinguished. And enterprising journalists might fairly ask Philadelphia’s District Attorney what he thinks of Fina’s conduct, and whether the DA has asked his employee if Fina indeed sent and received hard-core pornographic emails to colleagues and to Justices on Pennsylvania’s Supreme Court. This scandal, already so damaging for the reputation of Pennsylvania’s bench and bar, may get worse.

 

 

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FAN 35.2 (First Amendment News) — Former NSA Director counsels against going after James Risen

Hey, I knew we were playing up against the line.

. . . I don’t understand the necessity to pursue Jim.

– General Michael Hayden

On Sunday October 12th, James Risen of the New York Times appeared on 60 Minutes. He was interviewed by Lesley Stahl. Below are some selected excerpts from that installment of the CBS news program.

Stahl:  Will you divulge your source?

James Risen on 60 Minutes with Lesley Stahl

James Risen on 60 Minutes with Lesley Stahl

Risen:  No, never; I’m not going to talk.

Stahl: Sometimes you get yourself in trouble.

Risen: [Chuckles] Yea, the government has been after me for a while now. . . .

Stahl: What was your first reaction when you realized that the New York Times was onto the NSA story?

General Michael Hayden: First reaction was this is not good news. . . . [The NSA surveillance practices] were warrantless but not unwarranted. It would have been irresponsible for NSA not to have done this in the immediate aftermath of the attacks of 9-11. . . . Hey, I knew we were playing up against the line. . . . Jim is going to go to jail, why? Because Jim wants to protect his sources. . . .

Stahl: What kept you from walking out [when your editors initially held back your story]? Read More

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The Future, Heaven, and Limbo Have Been and Will Always Be Apple Stores

If you saw Sleeper, Heaven Can Wait, or the last of the Harry Potter films, you might notice that they all have scenes that look quite like an Apple Store. White, seemingly floating desks, some robots, a sense of what it is all about. The likely reason is the design gurus of the 1970s like the stark white, sharp lines look. Steve Jobs was a student of that era and it informed Apple, The Sequel from iPods to the stores (the first Apple movie was design tools, the second was “we design, you buy”). As for Harry Potter, why fight the future and the masters? Tap into that vibe and viewers will be happy to know that even limbo, afterlife (whatever that was) is much as it has always been. White, simple, soothing, yet confusing too.

I wonder whether the Chinese group that copied the Apple Store perfectly could argue that the trade dress was generic?

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3D Printing and Quality Ears. Ears? Expensive Monitors Really

It turns out that musicians wear customized earpieces called monitors to hear the music they make at a concert and to protect their ears from the speakers. A company called Ultimate Ears Pro is in this line of business and uses 3D printing for its next step in creating the devices. As Digital Trends explains the shift is not lowering cost but is increasing the quality:

“Bringing this process in required a tremendous investment in capital, time, resources and training.” Dias explains, which is why 3D printing hasn’t lowered the price points for the devices, as we had imagined. In fact, the company apparently had to take a hit just to keep the pricing the same. Apart from throwing down a hefty load for equipment and software, all of the craftsman who had been working with UE Pro’s in-ear monitors in the traditional method had to completely relearn their craft to work with the new 3D printing technology. As difficult as the process was, the company believes it was necessary to create a revolution in “speed, fit, quality, and comfort” for UE Pro’s monitors.

The company has been mainly serving professional musicians, but is now reaching music lovers too. UEP started from work for Van Halen’s drummer and then its opening act at the time, Skid Row. The desire to keep the quality up is where 3D printing comes in. The turn around time is abut half but given the customer-base, professionals and upscale music lovers, the quality improvement. As Ryan Waniata put it in his article, designers “can be more brazen with their sculpting, allowing them to create a fit for each user that is virtually perfect. And when it comes to in-ears, it’s all about the fit.”

The process still require several other steps including taking a mold of your ear. But the head of UPE mentioned something Gerard and I discussed in Patents, Meet Napster: 3D Printing and the Digitization of Things. Scanners may soon allow someone to get a scan at a store or make the scan themselves.

It’s not magic, but each step may move us to a world of bespoke earpieces for almost everyone. An upgrade for an iPhone or Samsung phone may be supercool headphones, customized and as good as rock stars, which, after all, is what Apple claims we can all be, at least in our heads.

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There She Is, Your Homemade AR-15

I cannot give a talk about 3D printing without addressing the question of homemade guns. As Gerard and I pointed out in Patents, Meet Napster: 3D Printing and the Digitization of Things, this is America and making guns at home is legal. The issues many faced was whether the gun would work well, fail, or possibly misfire and harm the user. These issues are important as we look at the shifts in manufacturing. Many of us may prefer authorized, branded files and materials for home made goods or prefer to order from a third party that certifies the goods. That said, some gun folks and hobbyists are different. They want to make things at home, because they can. And now, Defense Distributed has made the “Ghost Gunner” “a small CNC milling machine that costs a mere $1200 and is capable of spitting out an aluminum lower receiver for an AR-15 rifle.” That lower is the part the the Federal government regulates.

Accoridng to Extreme Tech, Defense Distributed’s founder Cody Wilson, thinks that “Allowing everyone to create an assault rifle with a few clicks is his way of showing that technology can always evade regulation and render the state obsolete. If a few people are shot by ghost guns, that’s just the price we have to pay for freedom, according to Wilson.” This position is what most folks want to debate. But Gerard and I think something else is revealed here. As ExtremeTech puts it, “This is an entirely new era in the manufacturing of real world objects, in both plastic and metal. It used to be that you needed training as a gunsmith to make your own firearm, but that’s no longer the case.” That point is what motivated me to write about 3D printing and look deeper at digitization and disruption.

The first, short, follow-up on these ideas is in an essay called The New Steam: On Digitization, Decentralization, and Disruption that appeared in Hastings Law Journal this past summer.

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Sports, Player Protection, and of course, Money

The attention to the way football head injuries affect players at all levels of the game is good. Whether the game as it is loved today can persist, I leave to others. But as the NFL has asserted that it wants to protect its players, the question of injury and health beyond head injuries struck me as a good one. I love football. I grew up with hard-nosed, crazy players (Raiders fan even during the abysmal last twenty plus years of dubious management). But with the evidence that these Sunday circuses put players at so much risk, I hope that the league and fans can find ways to mitigate the long-term harms of the sport. As Arian Foster recently pointed out, Thursday night games are not geared to protect players. Quite the opposite. They generate large revenue and are not going away. Yet it seems that a solution is at hand.

Use the bye-week teams to play on Thursday nights. With some juggling, the teams could be set up so that if a team is on a bye week, they play on Thursday, and then they again would have nine days rest. That should make for fewer injuries overall and a better post-season. Others may have written about this option (and a good friend had made this argument in the past but not to me). There may be fewer Thursday night games. But smart folks at the NFL should be able to figure out how to maximize the games, while still making money for the league and the players. Some may ask whether all long-term injuries can be mitigated. I doubt that. Still, if lawsuits persist, football, soccer (more contact and head injuries than one might think), and many contact sports may have to shift their rules or find that they can’t attract the best athletes. Hmm a world of basketball, extreme sports, and curling. Maybe I could get into that.

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Now That’s Innovation: Punkin Chunkin – He Chunked It!

Several Thanksgivings ago, John Scalzi and I had returned to his house after a lovely meal at his in-laws and melted into his couch as food coma rendered our brains incapable of thought. Required channel surfing followed. We hit upon the Punkin Chunkin contest (before the Myth Buster folks tagged in). The coverage lacked quasi-reality show production. It was pure unadulterated silliness. We had no idea what it was, but the first images of a launched pumpkin exploding in the air and the phrase “He chunked it!” had us rolling in laughter.

I have watched the T.V. coverage since then and despite the rubbish narrative/competition/inner thoughts of the contestant shift, I still love the event. Each category is great. The way contestants study the previous winners’ work; create, test, and iterate; and invest in expensive rigs or squeeze huge results from limited resources makes me think, “Now that’s innovation!” And it seems quite American. Junk yards, scrap iron, applied engineering, contests, bragging rights, open fields, and a big ole party (chili and I imagine beer) to see what’s what is all very American to me. It may not be the America’s Cup, and I am not sure that we will need siege engines in the near future, but the spirit is in the right place. Take your ingenuity, build something fun, and share it.

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And I’m Back – Deven to GA Tech, Scheller College of Business

I joined the Scheller College of Business at Georgia Tech in August. Some have asked (or speculated as law professors seem to do) about my choice. As those who know my past might see, I go where I think the best work is possible. My scholarship dives into business and technology literatures. GA Tech is excellent in both areas. I took the interview and the position with the hope that I could go deeper into these fields. And, as I hoped, it is great here. Peter Swire is my office neighbor. My group in law and ethics is smart and fun. Throw in friends like Stu Graham, and excellent professors in marketing (can you say more branding?), strategic management, information technology management, operations management, organizational behavior, accounting, and finance, and it is a field day. Folks here are pursuing data analytics, IT and supply chain, behavior and identity shaping by branding, and more. Chats have already pointed to me books and articles for my next set of papers. And that is just at Scheller. I am connecting with the engineers and public policy folks too. Not to mention that friends at Emory, GA State, and Georgia law are near, and I am overdue to visit them. So why move? The opportunity and resources make it a high quality problem place: so much to do and so many people with whom to connect that picking is difficult.

With a summer hire and move, blogging has not been active. Plus, I find that I am bursty (if that is a word). A few ideas pop up and blog posts fly. Then things seem less interesting for a bit. In any event, I think I have a few posts up my sleeve. See you in the funny papers, err blogosphere, as Hawkeye Pierce would say.