Category: General Law


Posner’s Expertise

Justin Wolfers, Mark Thoma, Brad DeLong and Menzie Chinn, among others, slam Richard Posner’s recent post attacking Christina Romer for abandoning her academic values.  The attack on Judge Posner is two pronged: (1) he doesn’t know the basic techniques/assumptions of macroeconomics; and (2) he either hasn’t read, or doesn’t understand, Romer’s academic work. Wolfers (who I admire greatly) is typically blunt. My running commentary on his comments are in brackets.

“Having recently re-read much of the modern literature on fiscal policy [note the invocation of authority!], I found myself underlining several of his claims that either reflect an incomplete understanding of the issue or are simply at odds with the current views of mainstream macro [suffer not the witch to live!]. Yet they are stated as simple truths, with no hint of qualification [if Justin wants to be outraged by simplification, he should read this]. And he cites not a single number nor builds a serious theoretical argument in support of any of his conclusions. “

Since lawyers often feel that economists and political scientists writing about law and legal institutions are similarly autistic/naive/under-appreciative of the literature, my first reaction to such complaints is: get over yourselves.  But more mature reflection prompted a slightly more generous thought: see what we mean?


Does Time Magazine Approve of Cheating and Lying?

I was troubled to read Joel Stein’s column, captioned “Cheating Rocks,” in the August 17 issue of Time. (The online version of the article has the heading “Cheating: It’s All-American — And It’s Great!”)

The upshot of Stein’s column seems to be that cheating in various circumstances should be acknowledged as acceptable. Stein starts his “Cheating Rocks” column by discussing the (misplaced, in his view) public outrage against steroid use by athletes, and Stein seems to suggest that steroids and other “cheating” tactics in sports should not be scorned, since they enhance performance which makes sports more interesting. While I do not agree with that position, I imagine Stein might have been offering it partially tongue-in-cheek.

What was not tongue-in-cheek, however, was Stein’s later admission in the column that he assisted his father years ago with what is likely unlawful tax fraud of some ilk, and Stein indicates that he continues to think deceit and cheating is acceptable.. Specifically, Stein says in his column:
I have long been an advocate of cheating. It started when my dad fooled an IRS auditor by comparing different vintages of phone book, finding and out-of-business furrier and getting me to use my Apple IIe to create a fake receipt to prove a false fur-coat donation.

Stein admits to helping to deceive the IRS, and Stein offers no regrets about it. Stein then writes – seemingly with approval – about high school cheating. This all gives me pause.

To be clear, my concern is not about Stein himself or Stein’s ethics. I am sure Stein is a lovely person, and I personally have no stake in how he views cheating or dishonesty. Rather, I have concerns about the fact that no senior person at Time Magazine put the kibosh on Stein’s “Cheating Rocks” column. Does Time Magazine really want its writers to publicly admit to being comfortable with being dishonest? Surely that undermines reader confidence in the material being published.

I am not suggesting that Stein himself fabricates things in his writing. My impression is quite the opposite – Stein seems to be a well-respected and well-published writer who does stellar work. What I am suggesting instead is that I am perplexed by the fact that the higher-ups at Time did not raise an eyebrow at a column in which a Time writer appears to admit comfort with dishonesty and lying.

Maybe I am a bit sensitive about issues of dishonesty and cheating, given that I research and write on corporate and attorney ethics. Maybe I am jaded, having consulted on too many cases where comfort with fudging and a bit of cheating turned into full-blown options backdating.

Whatever the reason, the column did not sit well with me. Even if we all agree that the column was partially in jest, it still would have given me pause, were I a Time executive.

As a final note, I found it ironic that, two pages before the “Cheating Rocks” column, there was an article about Bernie Madoff (the article is actually about books written about Madoff). The article notes that “Madoff screwed his investors.” The word “screwed” is so overly judgmental, given that cheating seems not to be a big deal to folks at Time….


Rolling the Dice in California

William F. Buckley, Jr. once famously said that “I’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.”  Voters in California may get a chance to test that idea.  “Repair California” is seeking to put an initiative on the state ballot that would call for a state constitutional convention and (try to) limit its mandate.  More important, the initiative would provide that the delegates be chosen randomly from the adult population of the State. That’s right — random selection.

It’s the ultimate form of campaign finance reform.


David Gray on “Publishing Ethics”

dgrayToday, I would like to share a post by my colleague and former guest blogger David Gray on publishing ethics.  Here is his post:

My thanks to Danielle for granting me this one-time-post-guest spot to pose a few questions to the Co-Op community about law review submission practices. What follows is from me, and should in no way be attributed to Danielle.

I am at best a neophyte, so apologize straight away if this is ground that has been covered elsewhere, but I have been thinking a lot lately about normative issues germane to the process for placing articles in law reviews. I have seen and read with great interest a number of blogs, websites, and SSRN postings relating to practical and strategic considerations, but have yet to see a sustained discussion of what, if any, rules of conduct or decorum we ought to respect along the way. After the jump I stumble through some of my sketchy thoughts and solicit views, advice, and anecdotes from authors, law review editors, and others in a much better position than I am in to inform this discussion.

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Laughter and Forgetting, Misery and Memory?

1154980_old_photoA recurrent theme in Dan Solove’s  important work is the privacy risks attendant to the ever-faster and powerful ability to collect, use and distribute information about us.  Digital dossiers trace and analyze our every move; millions of digital bits help tailor online and offline advertisements, educate employers and insurance companies, and otherwise impact countless decisions about us everyday.  

At the same time, we erect our own digital dossiers about ourselves.  Our iPods teem with favorite songs; hard drives (and handy flash drives) store pictures and videos of loved ones.   This prompts a question about our ability to move past painful episodes, both socially and legally.  Mixed-tapes, love letters, and photos once got lost in the shuffle: tapes melted in glove compartments, letters got tossed in various moves, and photos were torn up.  Yet today digital natives may be more likely to collect, keep, and ruminate over stored music, emails, videos, and photos than past generations.  And even if the young delete those reminders, online sellers and advertisers have long memories–their data-mining programs remember your former (and now painful) love of Led Zeppelin, Chaplin movies, and other shared (and now discarded) passions.  

Will this generation and their successors have a more difficult time moving on from difficult experiences?  Will they remain anchored, and held back, by them?  Aside from the psychological effect of sticky digital memories, will the inability to forget impact law?  Will persistent reminders of painful episodes make us more likely to seek legal action where we otherwise might have moved on?  Or will rapidly-changing technologies render software obsolete, thus having the same effect as the heat in one’s car or a move ensured the discarding of once treasured items?

Stock Xchange Image


“Banning Laptops in the Classroom: Is It Worth The Hassles?”

In the December 2007 Journal of Legal Education, Kevin Yamamoto published his aptly-titled piece (“Banning Laptops in the Classroom: Is It Worth The Hassles?,” describing his experiment with banning laptops in his upper-level classes. I suggest that all faculty members who have ever wondered whether laptops do more harm than good for the classroom experience read this article. I found it eye-opening. Ultimately, after careful analysis, Professor Yamamoto concluded that banning laptops in his tax class was a positive and beneficial exercise that a majority of his students supported, such that he planned to continue banning laptops.

I have also contemplated banning laptops in the classroom, for two main reasons. First, my experience leads me to believe that students who are transcribing classroom discussions are less engaged than students who are listening to the discussion and jotting down notes by hand. As a practical matter, it is very difficult to type everything a professor says while simultaneously processing what the professor is saying. Second, I am concerned that students who are surfing the ‘net or using their computers for purposes unrelated to the class are distracting those around them. When I have been asked to evaluate the teaching of my junior colleagues, I sit in the back of the classroom, and I find students who are overtly surfing the ‘net to be horribly distracting, with the flashing pages and such.

In addition, it is not a bad idea for students to maintain some proficiency with taking notes by hand. The reality is that lawyers in practice tend not to use laptops when taking notes at meetings with clients or deal conferences or depositions. My own recent experience as an expert witness confirms this. If we are brainstorming or preparing for testimony or some such, we all work with yellow pads. When I meet with clients, I sit face to face with them and take notes on paper, as opposed to opening my laptop, putting it between us, and tapping away with minimal eye contact.

That said, I have not yet gone so far as to ban laptops in class because I am concerned that there might be legitimate overriding reasons for using computers of which I am not aware. (Professor Yamamoto’s article works through some of the objections to banning laptops, which makes his article particularly good, but I imagine there might be more than he presents.)

It is ironic that we have come so far in this age of technology, yet sometimes the technology itself has downsides that outweigh the upsides. Perhaps other faculty members who have successfully banned laptops in the classroom will post their comments on this thread.


Who is Homer Plessy?

In my research for the William Jennings Bryan book that I’m writing, I’ve learned something interesting. There is no credible public domain picture of Homer Plessy, the named party in Plessy v. Ferguson.  There are pictures that claim to be of him, but they cannot be verified because in many instances people have taken photos of other prominent African-Americans and called them pictures of “Homer Plessy.”  So be careful if you are doing work in this area.


Some Thoughts About Meteors and the Hugos

Perseus_Hevelius_2BFor time to time, I like to remind folks that they should look up from work and take note of the world around them. Today, or rather tonight, is just such a time to do that. Yes, it is Perseid meteor shower time! I remember a particularly spectacular one around when Star Wars or Empire came out. To me it was film come to life. The best time to see the shower is hard to pin down but prognosticators have picked between 4 a.m. and 5 a.m. ET (1-2 a.m. PT). For the truly hardy or awe-seeking, 11 pm to dawn both tonight and tomorrow is suggested. The moon and cloud cover may play havoc with the chance to see the shower (as will light pollution). And remember to take some warmer clothes. I know it is summer but sitting around in the great outdoors even in summer can require a layer and maybe a knit hat for warmth.

And if while watching this dazzling light display, the stars should go out, we may be experiencing Spin. Spinis the Hugo-award winning novel by Robert Charles Wilson. My friend Doselle Young recommend it to me, and I must say I loved it. Wilson writes beautifully. The prose and the story grabbed me and kept me reading well into the night. It turns out I was at the WorldCon when Wilson won because that was the same year John Scalzi won his Campbell Award (he also won his second Hugo but this time for Best Related Book). So I guess I’ll read Neil Gaiman’s The Graveyard Book a few years from now.

Image: WikiCommons, Public Domain


Violence Specialists

In the terminology of a recent book by two economists and a political scientist, “violence specialists” are those who use violence professionally. Violence and Social Orders is a grand theory of human societies (the book’s subtitle is “A Conceptual Framework for Interpreting Recorded Human History”) expounded in rather dry, matter-of-fact prose. The matter-of-fact tone makes the phrase “violence specialists” particularly striking. In a contemporary society like the United States, the authorized violence specialists include the military and police forces. But we don’t tend to speak of our military and police in this way. Indeed, it might be more common to hear police and military personnel described as potential targets of violence than as agents of violence. The police, and the troops, are often praised as “those who put their lives on the line.” And we say, abstractly, that police and military forces keep us safe or protect the public, but the rhetoric of safety and protection tends to obscure the violent means by which safety is ostensibly secured. Given our usual ways of speaking, “violence specialists” is an attention-grabbing phrase.

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Google Books and the Limits of Courts

GoogleBooksThe Google Books litigation has inspired a lot of commentary on the web. As an early October fairness hearing approaches, a consensus appears to be building: the proposed settlement is too important and complex for a court to approve in its current form. Agent Lynn Chu has complained that “No one elected the[] ‘class representatives’ to represent America’s tens of thousands of authors and publishers to convey their digital rights to Google.” Pamela Samuelson, by all accounts one of the leading academics in American intellectual property law, has this to say:

The Google Book Search settlement will be, if approved, the most significant book industry development in the modern era [emphasis added]. . . . The Authors Guild has about 8000 members. OCLC has estimated that there are 22 million authors of books published in the U.S. since 1923 (the year before which books can be presumed to be in the public domain). Jan Constantine, a lawyer for the Authors Guild, is optimistic that authors and publishers of out-of-print books will sign up with the Registry, but there are many reasons to question this.

For one thing, the proposed settlement agreement implicitly estimates that only about 750,000 copyright owners will sign up with the Registry, at least in the near term. Second, many books are “orphans,” that is, books whose rights holders cannot be located by a reasonably diligent search. Third, many easily findable rights holders, particularly academic authors, would much rather make their works available on an open access basis than to sign up with the Registry. Fourth, signing up with the Registry will not be a simple matter, since the Registry won’t just take your word for it that you are the rights holder. You are going to have to prove your ownership claim.

The non-representativeness of the class is one ground on which it is possible to object to the proposed Book Search settlement. Other reasons to object or express concerns will be explored in subsequent articles. Objections must be filed with the court by September 4, 2009.

A suitable platform for hosting public discussions of the deal only launched a few weeks ago, thanks to the diligent efforts of James Grimmelmann (who is also organizing an academic conference on the issue in October). The proposed settlement raises a number of issues, which may only be addressed by extensive regulation of the project — or a public alternative dedicated to serving those marginalized by the current proposal.
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