Bepress Selected Works

The Berkeley Electronic Press is developing a new, personalized, scholarship distribution network: Selected Works. The idea is simple: the press hosts a webpage that showcases the author’s work, permits visitors to perform full-text searches, and enables distribution by email and RSS to interested readers. I suppose the tagline would be: “a better, more personalized, SSRN page.”

The service kindly has allowed me to beta-test the product, and you can find the result here. Check it out, sign up to receive notices when I upload new content (including the articles I’m currently working hard to finish) or new functionality (I’d like very much to get together a syndication of various blogs I read). Shucks, sign up if you just want to be one of the folks I email in the middle of the night when I’m working on a paper and need a synonym for “pathbreaking.”

Big picture issues: (1) the ultimate success of services like this one will make it harder for law reviews to sell their catalogues, meaning that current students will need, ever more, to the foot the bill for the production of legal scholarship; (2) a bigger, cheaper, pipe demands more, though not necessarily better, content; and (3) these two trends can’t work together forever.


The behavioralism of eating


The New York Tmes reports on Prof. Brian Wansink, who directs Cornell’s Food and Brand Lab and who also has a new book out. The article describes a series of lab results that show that issues of framing and cognitive bias seem to influence people’s eating habits. For example, we eat more if the same food is put in larger containers, and we tend to underestimate our consumption.

While some might see such results as a call for a legislative response, the article describes a series of food-industy responses and personal strategies that can address these biases and possibly reduce obesity. Some of the responses, such as plating dinners in the kitchen, are interesting. First, in my experience, this is a practice that I’ve observed in many Japanese households, though I’m not sure its for dietetic reasons. Second, as a method of dealing with “two selves,” it is reminiscent of some of the writing of Nobel laureate Thomas Schelling, in which he suggests placing the alarm clock as far away from the bed as you can, or winning a game of automotive “chicken” by ripping the steering wheel off and throwing it out the window.


Frank Pasquale Joins Our Team

pasquale.jpgWe are delighted that Frank Pasquale will be joining us on a permanent basis. Frank guested with us a while ago, and now he’s back for good.

Frank is a professor of law at Seton Hall Law School. He holds a BA from Harvard, an M.Phil. in Politics from Oxford University (as a Marshall Scholar), and a JD from Yale Law School. Prior to joining the Seton Hall faculty, Frank clerked for the Honorable Judge Kermit Lipez of the United States Court of Appeals for the First Circuit, served as a fellow at the Institute for the Defense of Competition and Protection of Intellectual Property in Lima, Peru, and was an attorney at Arnold & Porter in Washington, DC. Frank focuses his scholarship on intellectual property and health law, and he has a broad-ranging interdisciplinary approach that draws from economics, philosophy, and social science.

His recent scholarship includes, The Law and Economics of Information Overload Externalities, Vanderbilt L. Rev. (forthcoming 2006); Toward an Ecology of Intellectual Property, forthcoming in the Yale J. Law & Tech. (forthcoming 2006); Breaking the Vicious Circularity: Sony’s Contribution to the Fair Use Doctrine, 55 Case W. Res. L. Rev. 777 (2005); Beyond Napster: Using Antitrust Law to Advance and Enhance Online Music Distribution, 8 B.U. J. Sci. & Tech. L. 451 (2002) (with Kimberlee Weatherall and Matthew Fagin); and Two Concepts of Immortality: Reframing Public Debate on Stem Cell Research, 14 Yale J.L. & Human. 73 (2002). His recent works-in-progress include Rankings, Reductionism, and Responsibility (about search engine regulation) and The Law and Economics of Information Overload Externalities.

Frank will begin posting next week. Welcome, Frank!


Supporting Racially Inclusive Schools

blackwhite kids.jpgYesterday, briefs supporting school districts’ authority to adopt race conscious student admissions plans in public schools were due to the Supreme Court. The plans in both cases, Meredith v. Jefferson School District and Committee of Involved Parents v. Seattle School Board, were upheld in their respective circuits — and are extraordinarily important to anyone who is concerned about racial integration in our public schools. As the NAACP Legal Defense Fund stated in its website today, these cases give the Court an opportunity to preserve some measure of integration in our public schools, or to end the era of Brown. In interests of full disclosure, I co-authored a brief with my colleague Michelle Adams on behalf of the National PTA arguing that education in a multi-racial context is a compelling government interest. Our brief, and the many other amicus briefs submitted in the case, are available here.

Many of the multiple amicus briefs focused on the specific benefits to children from primary and secondary education in a multi-racial setting. These briefs assume that the parties have the burden of meeting the strict scrutiny standard — thus establishing that the use of race this context serves a compelling interest and that the means are narrowly tailored. Others, however, argue a very different point. As Michelle Adams noted here in June when the Supreme Court took these cases, in Judge Kozinski’s concurrence in the 9th Circuit, he disputed that strict scrutiny applied in the context of non-magnet public schools. He suggested that any admissions plan that does not involve competition between racial groups and does not favor one race over the other does not carry any sort of racial stigma — and therefore that strict scrutiny need not apply. NAACP LDF presents this argument most thoroughly and completely in its amicus brief

These cases will undoubtedly garner a great deal of attention, both because of the importance of the issues to public schools throughout the country, and also because they will give us a sense of how the loss of Justice O’Connor and the ascension of Chief Justice Roberts and Justice Alito will affect the Court’s decisionmaking on race issues more generally.


Extraterritorial effects of non-enforcement of the antitrust laws


The League Championship Series are starting, whether the Mets have any starting pitchers or not. But today’s baseball news concerned the importation of a quality starter from Japan, Daisuke Matsuzaka. Matsuzaka was the MVP of the inaugural World Baseball Classic this year, a kind of World Cup for baseball.

What does this have to do with law? Matsuzaka, unlike say, Hideki “Godzilla” Matsui, does not have 10 years in Japanese baseball, and so he is subject to an agreement between Japanese baseball and American Major League Baseball (MLB), in which MLB teams will submit silent bids for his services to MLB’s league office, and then the highest bidder will get exclusive rights to negotiation with Matsuzaka. The amount of the winning team’s bid will go to Matsuzaka’s former team (the Seibu Lions) as a transfer fee. And then, since he will be unable to take bids from any other team, Matsuzaka will probably take less from his new American employers than a free agent would.

It seems to me that Matsuzaka might well be better off if, free from this system, he could negotiate a higher salary as a free agent by receiving bids from several American teams, and then just buy himself out of his contract with Seibu — an efficient breach. Indeed, the fact that MLB and the Japanese leagues agreed on this system after the high-profile move of Hideo Nomo seems to imply that it takes $/¥ out of Matsuzaka’s pocket, and puts it in theirs. But this appears to be a case where baseball’s antitrust exemption in the U.S. has been extended outside our borders by contract with the Japanese leagues. While no one cries for baseball millionaires, it may be worth noting that while other countries sometimes take offense at U.S. antitrust law sprawling into their economies, tolerance of anticompetitive practices can also have extraterritorial effect.


Wanting the Wrong Answer: The Ironic Benefit of Student Participation

teacher1.jpgIn a post today, Kaimi responds to a fequent student criticism of law school pedagogy. That criticism is that many students don’t learn much from hearing other students speak in class. In large classes (not seminars), many students think that time is wasted when so much class time is devoted to other students talking. They feel that they are taking the class to learn from the professor, not from other students.

Kaimi’s response is that student participation functions as an “accountability mechanism” to ensure that students have “actually done the reading.” But more importantly, Kaimi, writes, “[f]acilitating student participation allows many students to learn more effectively.” He notes that students learn in different ways, and some learn best through active participation.

I agree with the mix of learning approaches. My classes all now involve a mixture between lecture, Socratic-style participation, and problem-method participation.

But I’m not sure Kaimi has really answered the student’s skepticism. Students often view the Socratic participation process as inefficient. Why not have the professor just lecture the answers? This way, some students think, they will get the correct answers faster and not have to wait while classmates struggle with the material until the right answer emerges. In a large class, Socratic participation seems like a very inefficient way to help the students who learn best by participating. After all, with many students, the average student participates about 2-3 times per semester — not frequently enough to get much benefit.

However, there is a benefit to having some Socratic participation as opposed to all lecture. And this benefit requires me to reveal a deeply-guarded secret of law school pedagogy: Law professors sometimes want the wrong answers.

Of course, professors don’t want wrong answers stemming from lack of preparation (these are not wrong in the right way), but they want certain wrong answers because the right one might be counterintuitive or very tricky and they want to explore why the wrong answers are wrong first.

Even when a student is not participating, it can be helpful to hear another student answer the questions. This gets other non-participating students thinking about how they will answer the questions. In a lecture, it is easy to just sit back and soak in all the information. But when students listen to other students participate — especially when other students are struggling to answer the questions — they are thinking about how they would answer them. And it is this thinking that is helpful. So there is a benefit to not having the answers come too quickly.

There are times when I’m exploring hard issues that I want to take a bit of time and explore a few false starts before getting to the right answer. I think that this can reinforce the lessons learned — and it can demonstrate to students why particular alternative answers are not the best ones.

Thus, ironically, the benefit of Socratic participation is its inefficiency in getting to the right answers quickly. What many students discount as wasted time — exploring wrong answers, waiting while another student struggles to articulate a concept or argument correctly — is actually very valuable time. It often doesn’t get memorialized in the notes students take in class. The time is often forgotten. But it is important time to allow the concepts to ferment in the students’ minds. Sometimes the seemingly inefficient teaching method can be the most effective one.


Participation and pedagogy

I’ve been following some of the discussion over at Prawfs about student participation, and I’ve noticed one recurring criticism from student commenters. It goes along this line:

As a student, I haven’t really benefitted from hearing other students speak in class. Therefore, student participation is [worthless, overated, just intended to boost a professor’s ego].

This criticism resonates, because it contains a certain amount of truth. However, it is ultimately misguided.

First, the way that this criticism reflects truth: It’s indeed likely that many students will not learn a great deal of the material from hearing other students talk in class.

This is due to a number of factors. First, there is a simple informational asymmetry. The students don’t know the most about the material; the professor does. Second, there are the limitations of the classroom environment. Perhaps given some time and some open space to work with, one’s classmates could articulate things that would help in learning. That’s one of the ideas behind study groups, and they can be very effective. But in a classroom, the student’s role is often to answer questions like “what’s the holding in Hadley v. Baxendale?” And let’s face it, there’s only so much that any student can do with that kind of framing. And finally (as will be discussed later in this post), students learn in different ways, and some students won’t learn from hearing others discuss the material.

So if many students don’t learn from hearing other students talk about the material in class, why elicit student comments? There are at least two reasons.

Read More


Law School Teaching: Paternalism or “Live and Let Live”?


There is an interesting discussion raised over at PrawfsBlawg about how law professors should enforce student preparedness in the classroom. Mike Dimino (law, Widener) (guesting at PrawfsBlawg and a former guest blogger here at Concurring Opinions) described a chronically unprepared student and noted the strong punishment he intends to deliver: “[I] plan to call on the lazy student every day for the rest of the semester (or at least a suitably lengthy period short of the whole semester) plus decrease his grade one step for poor class participation, but I suspect such treatment is not nearly severe enough (plus it wastes the time of other members of the class).” In a follow-up post, Mike noted that enforcing preparedness “is a lesson in professionalism, encouraging students who would otherwise slack off to expend the effort necessary to learn.” He argued that “student unpreparedness fosters an attitude of apathy that lowers the expectations of everyone and makes it impossible to teach to the high end of the class.”

I must disagree with Mike. I wonder how strong the correlation is between being prepared for each class and performance on the exam or being a good lawyer. We often assume this, but do we have good data to back it up?

My attitude toward teaching has changed throughout the years. I began in a much more paternalistic way. I had a vision of what the ideal students should be doing and I tried to force it upon them. I wanted all students to be highly engaged in class, to be on the edge of their seats, to be paying 100% attention, to be pouring their hearts and souls into the class. But part of me wanted students to be prepared not just for their own benefit but for my own ego. After all, I was trying very hard to make class interesting and worthwhile, and the unprepared student hurt my image of myself as a teacher.

Now, my view has changed. I try to encourage students to be prepared and engaged, but I don’t try to force them. There will always be students who are diligent and ones who are not diligent. I don’t think it is my job to try to force upon students a sense of diligence or work ethic. That needs to come from within. If students are preparing for class out of fear, the “diligence” is forced and illusory. I doubt that those students will be diligent in real life situations without the fear. Instead, diligence must be generated internally. The student must find motivation from within to do the work. As a teacher, I can try to encourage the development of this motivation, but I can’t force it.

I use an on deck system, so only a few students are on call each class. I care about student preparation for the days they are on call, and I will enforce it. But I do so for a different reason — not because I want to force them to be diligent but because I asked them to do a small task and they haven’t done it. With the on deck system, I’ve asked the students to assist me and the class with the day’s material. So if they are unprepared, they have let me and the class down.

So although I don’t go so far as adopt a “live and let live” attitude, I don’t believe in being too paternalistic either. I don’t always know what’s best for students. I don’t think it is effective or wise to force my vision of the ideal student upon students. What I try to do is encourage students to be engaged and interested in the material.


Project Posner

project-posner.jpgProfessor Tim Wu (law, Columbia) has created Project Posner, a searchable database of over 2100 judicial opinions by Judge Richard Posner. Here’s the website description:

The purpose of this site is to make freely and easily available to the public Richard Posner’s largest and greatest body of work — his judicial opinions. The database contains opinions from 1981 to 2006. It will not contain the most recent opinions.

Why this site? While Posner’s books and popular writings are easily available to the public, his opinions are difficult or expensive for the public to access, let alone search. This site, for the first time, collects almost all of his opinions in a single searchable and easily readable database.

For lawyers and those interested in law, Posner’s opinions have a particular substantive value. One thing that distinguishes the opinions is the effort to try and get at why a given law actually exists, and an effort to try and make sense of the law. That can make them more useful than most case reports.

In addition, the opinions often develop the American general and state common law. Posner is among the judges who feels free to take the rule of Erie as more suggestion than injunction.

Finally, some of the opinions are funny.


It was a dark and stormy night

Ronald Dworkin famously compared judicial interpretation of legislation to the writing of a chain novel. I recently noticed an attempt by a few blogosphere types, led by Orin Kerr, to apply the same model to legal scholarship. The combined article is being blogged; its current text reads:

Intellectual property is neither intellectual nor property. Or at least that’s what some people think; in reality, a moment’s reflection will reveal that this is completely wrong. More correctly, a moment’s reflection will reveal that the courts consider this completely wrong. But they, too, are quite wrong. It was a dark and stormy night.

(And you thought that the discussion highlighted in Dave’s research-agenda post was unorthodox . . . ).

It’s a fun little goofy idea. And, of course, there are areas in which open-source and collaboration can work really well. An easy example is the analysis-of-multiple-states’-laws-about-X piece, where one professor can write on one state’s laws while another professor covers another state.

But a sentence-by-sentence open-sourcing of an article seems problematic. It just seems too easy for one or more of the participants to try to insert funny or incongruous sentences. And just one out-of-place sentence could destroy the continuity of an argument. Help! I’m being held prisoner in a fortune-cookie factory.