Monthly Archive: November 2007

Prawfs/Co-Op Law Blogger Happy Hour at AALS

bigapple.jpgI just wanted to announce that the annual AALS law blogger happy hour (that PrawfsBlawg and Concurring Opinions sponsor) will run 8:30 to 10:30 on Thursday, Jan. 3, at the fireplace room of the Library Bar at the Sheraton. Here are the details:

Thursday, Jan. 3, 2008, 8:30-10:30PM

Sheraton New York Hotel & Towers

811 7th Avenue (at 53rd Street)


Fireplace Room within Library Bar

For all the night owls (or dilatory ducks) out there, I’m pretty sure festivities will continue in the Library Bar outside the fireplace room after 10:30. Should be a fun event!

As a resident of almost-but-not-quite-New-York, I’ll also be doing a few posts in December on 1) transportation options in NYC and 2) good restaurants at various price levels. If anyone wants to suggest some restaurant ideas, feel free to comment below.

Photo Credit: Wallyg.

Yoshida Battles the Pink Jellyfish

pinkjellyfish.jpgThe WSJ has a great story on a jellyfish invasion in Japanese waters:

Fisherman Ryoichi Yoshida pulled in his nets before dawn one morning, hoping for lots of yellowtail and mackerel. But the fish were overwhelmed by a heaving mass of living pink slime. The creatures, called Nomura jellyfish, can measure six feet across and weigh up to about 450 pounds.

Fish poisoned by jellyfish tentacles die with their mouths agape. That mars their appearance and reduces their value by as much as 20%. “When their mouths are wide open, it means they’ve died going, ‘I’m in pain! I’m in pain!’ ” explains Mr. Yoshida.

The jellyfish could lead to an international incident–either over Chinese industrialization, or global warming:

[A] computer model of ocean currents suggests the jellyfish are breeding off the Chinese coast near the mouth of the Yangtze River. One theory is that pollution, perhaps linked to industrialization in China, is helping create more algae in the sea. The algae are food for plankton, which is food for jellyfish. . . . [But the] dean of the Ocean University of China [says] “Floating jellyfish are mostly in the Sea of Japan….That’s Japan and Korea’s problem.”

One fear among scientists is that the creatures are multiplying in a “jellyfish spiral.” Shinichi Uye, a leading jellyfish researcher at Hiroshima University in western Japan, thinks overfishing off China has led to fewer plankton-eating fish, leaving more plankton for the jellyfish to suck up. This growing army of jellyfish then also eats fish eggs, resulting in even fewer fish.

If China is helping to generate giant pink jellyfish, it will be interesting to see if any international body can do anything to control the problem. On the other hand, the new popularity of “vanilla-and-jellyfish ice cream” shows that the industrious can turn even the most noxious pests into a blessing in disguise.

Photo Credit: Flaming Lips, Yoshimi Battles the Pink Robots.


Models and Games

This seems like an auspicious occasion to announce that, following in the Larry Solum model of developing a paper from blog post to short idea piece to full-blown article, I’ve posted on SSRN the complete version of what was known in a prior iteration as “Aboutness, Thingness. . . .” The last thing to go was the old title, and the second to last were the first several paragraphs of the old introduction, I suppose because the words are like children, these particular words had been around since I first put fingers to keyboard, and, if truth be known, I thought they were really clever. But these are all aspects either of self-deception or unwillingness to make choices, and who of all people inspired me but Katie Holmes (or at least her character in Wonder Boys, Hannah Green) who observed to Michael Douglas (as Grady Tripp) that writing was about making choices and he had made none in the manuscript of his second novel.

The gist of the piece, if I were to put it blog-colloquially, is how some modes of making sense of cause-and-effect, particularly in the realm of human behavior, just plain miss the boat. In natural science, an example would be trying to explain dog behavior and conditioning at the level of physiology. That level of explanation might suffice for a physiologist who is interested in measuring muscle contractions at feeding time, but it doesn’t tell the microbiologist much, nor does it do much to explain at the level of operant conditioning. In the social sciences, the distinction would be (courtesy of historian Thomas Haskell), the difference between explanatory cause and attributive cause. If you ask the thug why he beat the old man, an answer that involves neural pathways and muscular contractions may explain cause and effect at one level, but it doesn’t make sense in the same way this answer does: “because I wanted his wallet full of money.”

The part of the piece with which I had the most fun was where I applied the foregoing to the 2003 Yale Law Journal article by Alan Schwartz and Bob Scott on contract interpretation. In a nutshell (but you will have to read the piece to see why), my claim was that their mode of explanation simply missed the boat in the same explanatory versus attributive way.

The article is Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists. The abstract follows the fold.

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What Does It Take For a Judge to Jail 46 People in His Courtroom?

judge3a.jpgFrom CNN comes this bizarre story of a judge in Niagara Falls who had 46 people in his courtroom thrown into jail. Why? A cell phone rang and interrupted his court proceedings:

A judge in Niagara Falls, New York, has apologized for jailing nearly four dozen people over a ringing mobile phone in his courtroom, his attorney said Wednesday.

In removing City Court Judge Robert Restaino from office Tuesday, the state Commission on Judicial Conduct called his decision to lock up 46 people after no one claimed ownership of the phone “a gross deviation from the proper role of a judge.” . . .

“We conclude that respondent’s behavior … warrants the sanction of removal, notwithstanding his previously unblemished record on the bench and the testimony as to his character and reputation,” the panel ruled.

According to the commission report, Restaino was presiding over a domestic-violence case when a ringing mobile phone interrupted proceedings. When no one took responsibility for the ringing phone, Restaino ordered that court security officers search for the device.

About 70 defendants were in the courtroom that day to take part in a monitoring program for domestic violence offenders. When no one admitted to owning the phone, Restaino heard the remaining cases and then recalled the cases of defendants who had already been released to question them about the phone, according to the commission report.

After all the defendants denied having the phone or knowing who it belonged to, Restaino sent 46 people to jail. Fourteen who were unable to make bail were handcuffed and jailed for several hours.

According to the report, Restaino decided to release defendants only after learning reporters were inquiring about their incarceration.

I guess inconsiderate cell phone man has met his match.


Sharing Information for Anti-terrorism or for Domestic Crime?

informationsign2.JPGThe Associated Press reports that after 9/11 43 so-called fusion centers were established to improve information flow in part of an anti-terrorism strategy, but according to the Government Accounting Office only two centers, one in Kansas and one in Rhode Island, focus exclusively on antiterrorism. “Other centers focus on all crimes, including drugs and gangs GAO found [sic].” As the article details the centers operate via state police or other law enforcement agencies and often are in the same buildings as federal agencies.

Perhaps most odd is that each center is supposed to be independent and not controlled by the federal government but the Bush administration now has guidelines encouraging a more general sharing of information about criminal activity under the theory that terrorists need funding and will use criminal activities as sources of income. Of course the system raises privacy concerns and even if one thought that using information gathering and sharing techniques with some reduction in privacy was justified to fight terror, the system is now being used under the theory of preventing anything that could cause harm, an immature idea.

Ironically, the article also notes that information technology problems currently hinder the ability to have a Tom Clancy-style, perfect tech center. In addition, the bureaucracy sounds like an updated version of the Keystone cops as reports are often duplicated, staff is hard to find and train, and clearances take time to process and are often not honored by federal agencies. Nonetheless, it is probably better to assume that these glitches will be reduced if not essentially eliminated and that the larger privacy issues will increase in their impact and importance as the systems become more efficient. Put differently, is there a reason to fully realize the Digital Person? For it seems that although better systems to fight crime could be a good thing in the abstract, when the threat is not a more fully realized version of an attack on our society, the sacrifice in terms of freedom is massive. One book to read on an era with similar issues is Secrecy: The American Experience by Daniel Moynihan. Its reflection on Cold War policies in the face of real threats and how the policies made little sense offer an analog to some the issues faced today in the terror context.


Accommodating Breastfeeding Mothers

mermaid.jpgBefore my guest visit at Concurring Opinions ends, I want to comment on a case that received media attention in September and October: Currier v. National Board of Medical Examiners. The Massachusetts appeals court granted a preliminary injunction ordering the National Board of Medical Examiners (NBME) to allow Sophie Currier additional break time so that she could pump breast milk during a medical licensing exam. The Supreme Judicial Court denied the NBME’s request for further judicial review. This was undoubtedly a victory for Currier, but what about for other breastfeeding mothers?

Over at, Dahlia Lithwick asked why more female columnists did not comment on Currier. She speculated that women are so beaten down by the Mommy Wars that they chose to remind quiet; or that some women silently wondered why a mother of two small children would start a medical residency; or that many women believed that because they breastfed and worked without accommodation, Currier should as well. I’ve found it difficult to discuss Currier, but not for any of the reasons that Lithwick suggested. I usually applaud policies and legal results that help women balance families and careers . But here I’m concerned that Currier’s legal victory will ultimately undermine the goal of widespread accommodation of breastfeeding employees.

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Concurring Opinions Makes the ABA Journal’s Top 100 Law Blog List

I’m very pleased that Concurring Opinions has been selected for the ABA Journal’s Blawg 100. According to the ABA Journal’s site, it is listing “the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal.”

The ABA Journal is also asking readers to vote for their favorites on their list, and we’d be delighted if you voted for us. Click the graphic below to go to the voting page.


Just How Independent? Blogs, Judges, and Courtroom Behavior

scales2.JPGWhen one encounters the local, local rules, the ones that a judge may put in place just for her court, or watches the withering comments a counsel receives or worse yet suffers under such reprimands, the image of judges as irrational or dictatorial law makers seems correct. Unfortunately that image probably undercuts the deference judges deserve if not the respect the bench requires. A New York case and a Florida-based blog present some light on the topic. The New York Law Journal reports that a city judge went into a two hour tirade to find one person whose cell phone went off in his court and then took 46, yes 46, people into custody. The Commission on Judicial Conduct has recommended the judge’s removal from the bench. “‘In causing 46 individuals to be deprived of their liberty out of pique and frustration, respondent abandoned his role as a reasonable, fair jurist and instead became a petty tyrant, abusing his judicial power and placing himself above the law he was shown to administer’.” The judge in the case attributed his behavior to stress in his personal life, but only one commissioner thought the argument merited a sanction less than removal.

In Flordia the chief judge of the Broward County circuit court has stepped down in part because JAA Blog has documented the bad behaviors of judges under his supervision including “a judge arrested for smoking pot in a park, another judge making an off-color sexual remark and another judge allegedly taking a loan from a defense lawyer appearing before him.” The National Law Journal reports that several blogs in South Florida document the in courtroom and out of courtroom deeds of judges. Some argue that the blogs provide a spotlight on how the courts work and have effected change. Others note that some of the blogs allow anonymous posts “about judges routinely not showing up for work, judges and lawyers having affairs with each other and other salacious rumors.” Regardless, it appears that attorneys and judges are reading the blogs.

All of this attention on judges and courtrooms reminds me of the opening to Tarzan Lord of the Jungle the animated series by Filmation (click here for the audio file). It was a long intro but the key was “This is my domain, and I protect those who come here; for I am Tarzan, Lord of the Jungle.” A judge’s independence is supposed to be part of protecting everyone who enters the court. The examples above show that judges are after all human, but we expect them to be a little better than the average person. The blogs offer more information about acts in which judges should not engage and that could improve the bench. Yet, society’s willingness to gossip and smear almost anyone could easily further politicize the bench and interfere with the independence judges require to protect all who enter a court. At a more abstract level the trend in having more information about judges online raises privacy and autonomy concerns. Several people including Dan and his recent work The Future of Reputation examine this idea. An excellent article about the need for privacy and its relationship to autonomy is Julie Cohen’s Examined Lives: Informational Privacy and the Subject as Object which appeared in the Stanford Law Review.

[Ed. note previously I had thought the voice over for Tarzan was from the Ron Ely version of the show. A comment noted that this recollection was incorrect. The text now reflects the proper source of the memory].


Parody of Poetry of the Law

Thanks so much to Dan Solove, Frank Pasquale, and the rest of the distinguished group for allowing me to sully the Concurring Opinions cyberspace.

I was all set to introduce myself with something really serious (the posting on SSRN of a new piece) when I saw Nate Oman’s post on the poetry of law. I am always humbled by Nate’s thoughts on just about anything, because he is a scholar in ways I will never be. I thought not of great poetry (but if I had it would have been Robert Burns’ great piece on lawyers, To A Louse*), but of parody, including Jeremy Telman‘s regular limerick fare over at Contract Law Prof Blog. Two weeks ago, NPR’s Morning Edition did a story on BU law prof Mark Pettit, the “singing prof,” who puts contracts cases to the tune of popular songs. Not to be outdone, I spent most of that day writing a musical (and I’d like to think, poetic) version of Pinter v. Dahl, the securities regulation chestnut we just happened to be studying. For all of the non-securities lawyers out there, this is the case in which the Supreme Court stretched to the limit the use of the English language in finding a party other than the issuer to be liable under Section 12(a)(1) of the Securities Act of 1933. And, despite the fact that (to steal a line from the Tappert Brothers, Click and Clack, of Car Talk, also on NPR) man-eating sharks lose their appetite when they hear me sing, I sang it to my class.

So without further ado, and to the tune of the theme from The Beverly Hillbillies:

Come and listen to my story bout that guy Maurice,

California boy just a-waitin’ to be fleeced.

Then one day put some money in with Bill

Out in Oklahoma where the wildcatters drill.

Oil, that is, black gold. Texas tea.

Well, the next thing you know Maurice is on the dole,

Askin’ lots of friends he knows to throw cash down the hole

Said Beej Pinter is the guy you wanna see

And they each put some money in without an SEC

Filing, that is. Form S-1.

Well, now it’s time to figure out if anyone can claim

That someone not the issuer can bear part of the blame

For selling shares unregistered with no gratuity,

To share a heapin’ helpin’ of some liability.

Section 12(a)(1) that is. 33 Act. Write a check.

Y’all invest now, hear?

The question is how many times the act got recorded on cell phones.

* “O wad some Power the giftie gie us

To see oursels as ithers see us!”


Pain Assessment and the Law

Nature News reports on a study that found a correlation between certain brain wave measurements and pain intensity. The not-yet-published study will add to a growing body of neuroscience research that correlates the experience of physical pain with objective findings in brain images and other diagnostic media. This particular study was highly invasive, but a great deal of research involves non-invasive brain imaging. For example, a group of German researchers have reported finding tiny structural changes in the brain associated with chronic back pain using a technology called diffusion tensor imaging.

New pain assessment tools have tremendous potential to improve court and administrative proceedings that relate to personal injury and disability. Right now, juries are frequently called upon to assess damages for pain, even though many people exaggerate symptoms; some claims are entirely malingered. On the other hand, people can also have quite genuine claims for which they have little objective proof. And people with certain mental or motor difficulties may be incapable of telling us about the pain from which they nevertheless suffer. Juries and administrative law judges sometimes have little more to go on than hocus pocus. While we’re a long way from having technologies ready for the courtroom, it’s only a matter of time before courts are confronted with new neurotechnologies purporting to demonstrate the presence, absence, or intensity of pain symptoms.

I discuss these issues in more detail here and will present on these and other issues tomorrow at the University of Pennsylvania’s Neuroethics Talk Series.