Author: Miriam Cherry


Herding Cats (Mindfully): New Faculty Flow Blog

My colleague at Saint Louis University, Anders Walker , has started a new blog that ConOp readers may find of interest.  Named “Faculty Flow,” this blog is reflective of Anders’ position as our new Associate Dean of Research.  But this is more than just a blog for administrators; in fact, with recent posts on post-tenure review and the Harvard/Stanford/Yale Junior Faculty Forum, Faculty Flow should be of interest to anyone who is interested in producing scholarship of excellence.  Welcome to the blogsosphere!


A More Optimistic View on Automation and Jobs

Frank’s earlier posts about technology and employment (or lack thereof) raise many provocative questions for me, given that I write about “Virtual Work.”   The issue of automation and job loss is certainly not a new one.  I remember, as a child of the 1980s, reading news stories concerned with robot labor and overseas work.  While those concerns dealt with manufacturing, the new concern is the professional and high skilled jobs that are at risk.  And so, as Frank points out, the old mantra of learning new skills is not helpful in this context as meta-solution. 

If technology is exacerbating the job loss trend, will technology also help us find a solution?  As Frank notes, the dark side of virtual work is the one represented by micro-tasking and micro-labor – breaking tasks down to their lowest common denominator and farming the work out in a crowdsourced race to the bottom, often among third world denizens.   It’s true, my research assistant and I failed to make minimum wage on crowdsourcing websites, and performing tiny tasks quickly on a piecework basis is not anyone’s dream career.

But there’s an optimistic side, too.  I am hopeful that new technologies will create jobs and perhaps allow workers to have more humane work schedules through productivity gains.  I’ve written earlier about how, through gamification, technology could make many boring jobs more fulfilling, perhaps even fun.   Indeed, the promise of virtual work is that it might free us from drudgery and lead to more fulfilling work.  As John Adams wrote in a 1780 letter to Abigail Adams, “I must study politics and war that my sons may have liberty to study mathematics and philosophy. My sons ought to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce and agriculture, in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry, and porcelain.”  I would make a similar analogy for virtual work:  it has the potential to free us to become more creative.

In my view, then, technology is not the problem, per se.  The problem is that our economy, as currently constituted, is based on consumption, production, and spending – no matter how bad that unchecked consumption might be for any number of constituencies, including the environment.  As for job growth, I’d like to see more job growth in the areas of technology, green, and sustainable businesses.


Teaching an Employment Law Class in Second Life

My last post on pedagogy before turning to other more random subjects…  A few years ago, I taught a seminar and was able to conduct two of the class sessions in Second Life.  My classes since then have been larger, so I have not been able to replicate the experience (yet), but I found it valuable for a few reasons.  First was the subject matter.  We were studying employment discrimination, and we had spent a significant amount of time talking about identity performance at work – gender roles, covering, branding – as well as unconscious bias.  The students had to pick their avatars, and they could choose how they would look in Second Life.  I made my avatar look like the way I look when I show up to class – yes, that’s me, with the red curly hair and the business suit.  But I told the students to make any choice they wanted.  After all, on Second Life, you just click a button and your hair changes color.  Maybe you want to be taller.  Or a different gender.  Maybe you’d rather be a dinosaur than a human. 

So part of the experience was just selecting an avatar and then discussing why the students picked the avatars that they did.  The next part, though, was seeing Second Life as a place where work could be performed.  The students learned how we could talk to each other, either by talking into a microphone or by instant messaging each other; they saw how we could share documents.  Finally, we went to different sites that had advertised that they were hiring virtual workers.  In short, the students got to appreciate the potential of what I have in my academic writing termed “virtual work.”  

 We were not in the same room during the second class session – I took attendance by avatar that day – and so some students were in the classroom, others were at the computer lab, and others were at their apartments.  I ran the class session from the privacy of my office.  Because we knew each other and had a rapport in real life, we were able to connect with each other online and enjoy a fun and interactive classroom experience.


Learning Contracts through Current Events: A Book Review of Prof. Lawrence Cunningham’s Contracts in the Real World, Stories of Popular Contracts and Why They Matter

 In Contracts in the Real World, Stories of Popular Contracts and Why They Matter, fellow blogger Prof. Lawrence Cunningham explores the terrain of contract law through current events.  His decision to use the contracts of modern celebrities to illustrate contract law principles is an inspired choice that will appeal to today’s law students and contract law experts alike.  The book guides the reader down the well-trodden path of the common law’s chestnuts, but makes the doctrines come alive by applying them to modern, celebrity-laden contexts.  Happily, the book reads much like Marvin Chirelstein’s classic primer – it is easy-to-read and clearly written.  Cunningham adds rollicking celebrity stories to the mix, simultaneously educating and entertaining readers and encouraging us all to ponder the ability of current doctrine to address the increasingly complex issues caused by rapid technological innovation.

Along the way, readers will meet many celebrities, from intellectuals such as poet Maya Angelou and the late Dr. Martin Luther King, Jr., to the controversial and fame-seeking, like Paris Hilton, Donald Trump, and Charlie Sheen.  Professor Cunningham also deftly analyzes some of the notable contract law issues arising from the global financial crisis and the Bernie Madoff scandal.

From the start, the stories immediately grab the reader’s attention, turning ancient questions of consideration into a lively discussion of the ownership of Martin Luther King, Jr.’s archives.  The chapter provides insight into the ambiguous language surrounding King’s papers left with Boston University, the school that awarded him the degree making him “Dr. King.”  Cunningham then turns to offer and acceptance, particularly mutual assent and offers made in jest, based on Leonard v. Pepsico, the recent “Pepsi Points” for a harrier jet case.  The chapter finishes with mutual assent, by reviewing the peerless ship case, Raffles v. Wichelhaus, and then applies the concept of objective intent to several internet contracting cases, including Specht v. Netscape and ProCD v. Zeidenberg.

Chapters Two and Three focus on defenses, including unconscionability, public policy, mistake, impossibility, and infancy.  While Chapter Two begins with an ordinary case as an example, it quickly returns to more celebrity-friendly terrain.  Raising issues of the bounds of the law and unconscionability are the attempted blackmail of David Letterman, a palimony lawsuit against rapper 50-Cent, and two octogenarian sisters agreeing to split gambling winnings.  The Baby M case, with its multi-dimensional discussion of contracts against public policy, completes the chapter.  Chapter Three begins with mistake as applied to a divorce where a portion of the divided joint assets disappeared in Bernard Madoff’s notorious ponzi scheme.  Other stories in this section use celebrity contracts to great effect; impossibility includes Donald Trump’s attempts to cancel a contract via a force majeure clause, while Craig Traylor of “Malcolm in the Middle” takes center stage in illustrating infancy.  The chapter ends with the contracts and defenses in the AIG bonus scandal and stadium sponsorship contracts involving Enron and Citi.

Chapters Four and Five turn to remedies.  Celebutante Paris Hilton plays a leading role in the discussion of damages, as she was alleged to have breached contracts for various promotional appearances for a movie and hair extensions.  Mitigation and the lost volume seller both receive a thorough and interesting treatment via the Washington Redskins’ pursuit of breaching season ticket holders, despite that they could presumably resell some of them.  Restitution focuses on the development of The Sopranos and whether one of the contributors of ideas had a right to a share of the profits.  The chapter ends with the off-contract remedies awarded when rock singer Rod Stewart was unable to perform in Las Vegas due to vocal chord problems.

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Teaching Business Associations by Swimming with the Sharks

For the past couple of weeks I’ve been posting about gamification and prediction markets.  But I wanted to shift my focus this week to teaching and pedagogy because I’m busy reviewing some materials that I think will make my fall courses more timely and interesting.  Teaching the introductory Business Associations class is enjoyable – as students spend the semester gaining a better understanding of many financial and legal concepts, it is a very rewarding enterprise.  While I enjoy it, some of the doctrines in business law are technical, require glosses on a statute, or are otherwise difficult for students to grasp because of the finance concepts involved, so making the doctrines relevant, timely, and engaging can be a challenge.  When there’s an opportunity to tie in some of the more technical details with popular culture or media, I like to jump on it.

 For those of you not familiar with the television show, “Shark Tank” features various entrepreneurs pitching their business ideas to a panel of “sharks” – well-known and successful venture capitalists who are looking to invest their own money into a business.  (There is a disclaimer that says that the sharks are investing their own money, presumably to avoid running afoul of the securities rules on public solicitations).  The sharks rotate, but they have a variety of expertise and also a variety of colorful personalities.  Sometimes the sharks pass on the investment and the entrepreneur leaves the stage sheepishly; other times they jump on an investment and compete for the opportunity to partner with the entrepreneur, with high fives ensuing.  With most of the pitches, the entrepreneur is asked about revenue stream and opportunities for future growth.  The sharks also inquire about what the business is worth and what equity share the entrepreneur is willing to part with. 

I have the feeling that showing a few clips from “Shark Tank” makes the cases that we are reading more accessible to students.  Since the businesses presented on the show are usually small and have business plans that can be understood by the viewing public, the investments are ones that the students can get their heads around easily.  They understand the transactions presented on the show, and understand intuitively why one might not want to sell a large share of their company.  I’m planning to show a couple clips from the show at the start of the fall semester, along with a “role play” where some students play entrepreneurs, others play attorneys and a third group plays venture capitalists.


What went Wrong with Healthcare?

No, I’m not talking about the de/merits of the substantive decision on healthcare, or our overall healthcare system, both of which I am only marginally qualified to discuss.*  No, rather, I’m concerned with why so many predictions about the decision were incorrect.  I’m not talking about individual media pundits, or people who wrote blog posts with predictions.  Rather, I’m talking about the erroneous decisions of the prediction markets.  In the days leading up to the decision, I was checking the wisdom of the crowd on both Josh Blackman’s Fantasy Supreme Court and Intrade (for the record, Intrade was much more wrong (75% chance that the law was unconstitutional), but both were wrong). 

I’ve written before about prediction markets and the Supreme Court, and how I think these markets might provide us with a valuable service.    There’s a value in having predictable outcomes to cases.  Holmes, I think, would support my view that predictability is akin to the rule of law.  So why did this amazing new technology not work properly in this instance? 

I don’t have a clear cut answer – yet – but I think some of it has to do with the way the prediction contracts were phrased, the oral argument, and the difficulty of predicting one person’s actions.  First, prediction markets are crude tools that give us a “yes” or “no,” and not very good at trying to get at the reasons behind a ruling.   Second, the oral argument was a turning point for many participants in the markets, even though there has been some discussion in the theoretical literature indicating that oral argument has little, if any effect, on actual outcomes.   So it could be that participants were misled by a factor that was illusory, and once people started saying that the law might be overruled, it touched off an irrational feeding frenzy.  Another possibility would be that prediction markets do not do particularly well with decisions that are left up to one person.  After all, there is such a thing as free will.  Just because we have prediction markets, it doesn’t mean that we can read someone’s mind.  That’s why the prediction markets failed so badly to predict W’s nomination of Harriet Miers to the Supreme Court.  It’s difficult to get into the mind of the president or his administration.   Without inside information, the crowd is basically all equally uninformed.   And so it was difficult – very hard for the crowd to predict – Robert’s decisions or reasons for voting as he did.  I’ll be thinking more in the coming days about how prediction markets could avoid the trap they fell into with this decision.

*I say only marginally qualified because I teach contracts, business associations, and employment law, with a twist of all things tech and global, not constitutional law or health law.   I have, however, read the decision, which puts me head and shoulders over a large number of television commentators yesterday  (“I haven’t read the decision yet, but assuming that the court said X…”).  Finally, speaking of “getting it wrong,” this post would not be complete without a big ole turkey to Fox and CNN for reporting the holding incorrectly.


This is My Last Post about Gamification and it is Not Serious (Gamification Post #7)

I think we could all use a laugh, while we wait for the health care decision and see whether, like some cosmic groundhog day, we will be doomed to repeat the 1930s.  A couple of months ago, Paul Secunda and I wrote a parody called “The Law Review Games” : a mash-up of the law review submission process and “The Hunger Games.”  It got some attention from Above the Law.  While not particularly relevant to the gamification I have been talking about (other than the fact that the title involves the word “games”), I figured I’d post it for anyone who missed it.  Enjoy!


Tiebreaker for the Olympic Games (Gamification Post #6)

Here’s a fun thought problem on a Monday afternoon, concerning the tie for third place in the US Olympic Trials.  What is the better way to solve the tie for the one remaining spot on the team, toss a coin or run it off again?  The competitors are being allowed to choose. According to my colleague at Saint Louis University, Eric Miller, the rules of games can tell us something about fair judging:

My claim is that the officials have a permission to use either method. What they’ve done is avoid deciding by delegating the decision over what method to use to the runners themselves: another permission (though of a different type). Judges don’t often have the option of delegating in this manner. But either method, coin toss or run off, is (in my view) equally supported by reason (and equally unsupported). The problem for judges (and other institutional decision-makers) lies in the fact that we normally want them to provide reasons, and, moreover, reasons that both support the winners and disfavor the losers. That is not possible where there are ties (or incomparabilities or incommensurabilities).

What do you think is the best way to break the tie?


Who Benefits When We Game?: A Call for Transparency and Disclosure (Gamification Post #5)

As I noted in my last post, one form of the gamification of work involves work that does not feel like work to the people that are performing it.  As an example, the Games with a Purpose (GWAP) website explains that “When you play a game at GWAP, you aren’t just having fun. You’re helping the world become a better place.  By playing our games, you’re training computers to solve problems for humans all over the world.”  I tried the “ESP” game, in which I was supposed to agree with a partner on a description of a picture (photo-tagging).  I also participated in the “Gender Guesser” game.  These types of beneficial games are exactly what Jane McGonigal has in mind when she talks about an “Epic Win” – harnessing the fun of gaming to improve our actual reality.

However, I had some concerns with both games I played.  The reasons for asking users to do the photo-labeling were not transparent.  In fact, users are not told who, if anyone, would benefit from the time they spend on tagging.   The website claims that playing the ESP game would give a search engine a “better idea of what’s in those images.”  But which search engine?  Does GWAP make a profit from helping search engines?  When I was playing, was I working for Google?  A different search engine?  Helping a computer scientist improve his or her research?  In the GWAP chat room, I attempted to ask some of these questions about who exactly we were helping with the game, but received no reply.

Two problems for the gamification of work, then, are transparency and disclosure.  At a minimum, users/workers should be informed about who they will be working for, volunteering for, or otherwise helping.  This is important since many users might not even know that they are actually working; and it is important that this information is transparent.  Arguably, some people might want to play a game that helped computers process information faster, but might be strongly against gaming that had the ultimate result of reinforcing gender stereotypes, for example.  While some might enjoy participating in a game that also helps us search for signs of intelligent alien life, some might find a game that improves the surveillance of borders – to monitor other aliens – problematic.  The point is that each user should such information available in order to make a fair and full choice as to how their time – volunteer or paid – will be used, according to his or her own more, political, and value judgments.