Category: Sociology of Law

Scientists Manques?

Ever wonder why Richard Posner has gotten so interested in pragmatism? Well, James R. Hackney’s book Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity suggests that he’s right to be looking for a post-scientific discourse for the style of law & economics he advances. Here’s an abstract of Hackney’s work:

The current dominant strand of legal economic theory is what is commonly referred to as law and economics (but more appropriately labeled “law and neoclassical economics”). [This movement] gained its claim to objectivity based on the philosophical premises of logical positivism and the analytic philosophy movement generally. . . . In understanding the claim of objectivity in the law and neoclassical economics movement and why that claim can no longer be sustained (in part due to new conceptions of science and developments in philosophy) it is crucial that legal-academics have a fuller understanding of developments in science and how they shape our general cultural ethos.

Hackney synthesizes a wide variety of CLS and socio-economic critiques to show how “law and economics often cloaks ideological determinations—particularly regarding the distribution of wealth—under the cover of science.” Toward the end of the book he tentatively points a way forward for the discipline, urging greater humility about theoretical claims and greater reliance on empirical work. In other words, the cure for scientism is genuine science.

I have some sympathy with this perspective, and new awareness of “uniformity costs” in both law and legal scholarship backs up Hackney’s position. But the problem of “scientism” may extend beyond law and neoclassical economics…

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Don Imus and Megan Kanka In A Soundbite Nation

Over at BlackProf, Darren Hutchinson has a good post about the understandably strong response to the comments of shock-jock Don Imus. Here’s a taste:

How do persons concerned with racial justice convince people to examine structural racism with the same level of intensity as they devote to incidents such as Nappy-Gate? When idiots like Imus (and Lott and all the other racists du jour) have moments of Freudian slippage, Sharpton, Jackson and others respond; the idiots apologize; and the racist “moments” pass. Victory! But what about the next day? Racism in its structural and individualized forms persists. Is it possible to capitalize on moments like these to bring attention to issues far more dangerous and pervasive than Imus (like conjoined poverty and racism)? Does intense focus on idiot du jour racism, rather than structural racism, make the latter even more obscure and beyond remediation?

I think this is an extremely important point. Events like the Imus fiasco have multiple pathogenic results. They make millions of people feel good about their petty racisms because “I never would have said anything that stupid and offensive.” They create excellent opportunities for individuals and institutions who promote, or benefit from, racism to speak out against Imus and publicly document their supposed opposition to racism, thus innoculating them against future criticism. Most of all, they obscure potent forms of institutional discrimination by creating the impression that Imus-like comments are the prototypical form of racism that we should all worry about.

Ironically, I fear most the suggestion that events like this reduce racism because they generate an important public debate about race. Any public debate happening in the aftermath of Imus seems to be a sideshow obscuring the main event – institutional racism that lacks fingerprints or soundbites, and operates silently and effectively throughout America’s day to day. The Imus affair reminds me a bit of the aftermath of Megan Kanka’s brutal abduction and killing. As bad as that individual case was, the public debate and legislative response – targeting the comparatively rare child sexual abuser who victimizes strangers- completely obscured the much more significant child sexual abuse problem in America: sexual assaults by close friends and family members and, in particular, step-dads and their equivalents. (Robin Wilson’s article remains a critical piece of this literature.)

As a general matter, if CNN can’t describe an issue in 60 second or less, it’s not a problem our society can acknowledge or address. Deep seated societal racism cannot be captured in a clip. Don Imus can be. The consequences? We learn that Imus = racism. Punishment and apology follows. And a relieved nation moves on.

5

Preaching in the Court House: An Experiment in Blog Advertising

At last January’s AALS meetings, Larry Solum gave advice to new scholars on the use of SSRN, suggesting that it was a good idea to post short, initial versions of an article as a way of generating interest and invitations to workshop one’s piece at other schools. Perhaps blogs can be used in the same way. Hence this post.

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Xoxohth 1.2: The Whys and Wherefores

[This is Part I, Section 2, of the project I announced here. (Part 1.1 is here.) The goal of today’s installment is to present a diversity of views on why people spend time on Xoxohth, drawing largely on the voices of posters themselves.]

inkblot.cgiI’ll start by acknowledging an uncomfortable fact. This project suggests, and perhaps even reinforces, that critique of academic life often bandied about by the popular press: I’m asking a minor question, focusing on the uninteresting choices of marginal members of society, and using a methodology of debatable validity.

I felt bad about this for a while. And then I realized that the next best use of my time is grading: a similar process, but with higher perceived stakes.

Forward. The issue for today is why people continue to spend substantial amounts of time on XO. The question arises from the obvious point that students and lawyers have many ways to spend their time. Most of those ways are unlikely to lead to professional embarrassment if publicized, and may even enable individuals to build reputations for probity and acuity. It is odd, then, that hundreds or thousands of students and lawyers devote significant chunks of their free time to talking anonymously on XO. What gives?

It seems to me that there are a few motivations in play: entertainment, a search for information, the need for community, and the pleasures of transgression. Before we begin, let’s get some reader input. What motivation do you think drives XO’s traffic?

Why Do People Spend Time on XO?
The Community
The Transgression!
Information (Giving and Getting)
Entertainment
Other
  
Free polls from Pollhost.com

Now that we’re done with the scientific polling, let’s look at the qualitative data.

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9

Dateline Perverted Justice: Pedophilia That The Market (And Judith Butler) Can Appreciate

The NY Times has an interesting article today about Perveted Justice, the group that Dateline has adopted as a highly profitable vehicle for purveying mass anxiety about child sexual offenders. As many people have noticed by now, Dateline has neatly repositioned itself as an ongoing documentary about the battle to ferret out internet pedophiles. Perverted Justice volunteers troll the web, trying to draw in adults who seek hook-ups with kids. Dateline then sets up shop, waiting to capture these faux-meetings on video.

The article notes that this is lucrative business for everyone. Perverted Justice gets $70,000 for every hour of Dateline content. Clearly NBC is raking in the bucks, drawing over 9 million viewers per Pedo-Dateline, as opposed to their usual net of 7 million viewers for other Dateline episodes. And Dateline already has six more “episodes” of Pedo-Dateline in the pipeline for 2007. In Threatened Children and Random Violence, Joel Best explored how child protection activists have developed both economically and politically by tapping into longstanding public conern over child abuse – and particularly child sexual abuse. (Phillip Jenkins has offered related insignts in his book, Moral Panic.) Yet the explicit commercial trade in this anxiety – always present to the degree that such sex panics provide fodder to the daily news outlets – has never been clearer than here.

At the same time, the Times piece notes that some people are concerned that the very act of publicly pursuing and villifying these individuals effectively creates a new form of sexualized text, because by putting the transcripts of these conversations online, the group puts “out for unfiltered, unrestricted public consumption the most graphic sexual material that they themselves say is of a perverted nature.” Judith Butler, in Excitable Speech, makes the point that prohibition and desire are intertwined:

Prohibition pursues the reproduction of prohibited desire and becomes itself intensified through the renunciations it effects… .The prohibition not only sustains, but is sustained by, the desire that it forces into renunciation.

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Law & Technology Theory

prometheus.jpgI just wanted to plug a new forum that Gaia Bernstein, Jim Chen, and I recently launched–Law & Technology Theory. The big question we’re addressing is whether our experience of past regulation of technologies teaches generalizable lessons for future policy. Gaia has nicely summarized some of the key issues we’ll be considering:

Whether [a theory of law & technology] should have broad principles that apply to all technologies or whether it should offer narrower principles relevant to different categories of technologies?

[Can we] formulate a theory that differentiates on the basis of the social values or institutions a new technology destabilizes?

Our “virtual symposium” will host an international group of scholars with a wide range of theoretical commitments. We’ll be publishing the proceedings in the Minnesota Journal of Law, Science, and Technology this Spring. We hope you’ll consider reading and commenting as the discussion progresses. (Some of us will also be at the IASTS conference in Baltimore this February.)

By the way, on a completely untheoretical note, I have to say that the travel time involved in this symposium is great–zero! By developing a forum somewhere between a blog and a conference, we’re trying to promote a new kind of academic exchange. We hope it ends up being a bit more inclusive than the average conference circuit, which can be inhospitable to those who have a tough time traveling.

Art Credit: Elsie Russell, Prometheus (1994).

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Xoxohth 1.1: The Past and Present

[This is Part I, Section 1, of the project I announced here. The goal of today’s installment is to set out the history of the XO board, and briefly describe its present statistics.]

goldencalf.jpgHugs and Kisses, Hope this Helps

The genesis of XO was less gripping, bloody, tortured, significant and miraculous than the Exodus, a tale which it otherwise resembles in important respects.

The community started as a group of posters at the Princeton Review Discussion Board [PR]. Some individuals began at PR in 1997-1998, as they were applying to college, and continued posting in that forum after matriculation. The reason that people spent time – sometimes 20 hours a week or more – at PR will become familiar:

Before I started law school, I posted on the former incarnation of xoxo (which was then run by the Princeton Review) because it was a wide-open and mostly unmanaged discussion. In one sitting I could have the most sober and serious conversations as well as the most silly and immature b******* sessions, all with the same group of people. The other, more “mature” boards were by comparison intellectual wastelands, partly because they were so “sober” and “mature.” All the really smart people shunned those boring boards in favor of pr (now xoxo).

But not all individuals were looking for information: some were actually, weirdly, (slumming) older alumni.

The standard foundation story holds that in March, 2004, PR switched to a new software format that users found irritating because it (1) enabled IP tracking; (2) discouraged use of multiple aliases; (3) discouraged abusive language through moderation and banning; and (4) eliminated the “‘tree’ format and switching to a vBulletin-type format that was heavily despised by most users.” See here and here and here for some posts from the period. One emailer explains:

The only moderators were Jeff Adams, a Princeton Review employee, and TPR Droid, who was a long-time poster that Jeff hired to moderate the board when he wasn’t around. Anger at TPR Droid’s moderation style was one of the main reasons for the initial rift — while Jeff was even-handed with deletions and bannings, many people felt Droid had an agenda since he would ban people for criticizing his favored posters, or delete racist threads directed at Jews and Christians while refusing to delete equally hateful threads about Muslims.

A group of users decided to leave PR as a group. However,

The law boarders didn’t know about the existence of xoxohth. [A user with the handle Rowan] organized an AIM chat and people were brainstorming ideas of how to re-create the board. I think rk even drafted a letter looking for corporate sponsorship . . . In the very beginning, the law and college boards were one. During those heady first days, all personal wars were called off – Edgar Martinez, Julia, RWA, LawyerBird got along – but soon order was restored and things returned to normal.

Obviously, the domain name had been purchased before problems on the PR board became exigent. According to a WHOIS search, the purchase of the xoxohth domain occurred on January 29, 2004. The buyer was Jarret Cohen, now in business in Pennsylvania. As you can see from this screenshot of the early board, it was intended to be a replacement for the PR community. Contrary to Eugene’s speculations, xoxohth is not a dungeons and dragons reference. It seems to stand for xoxo (hugs and kisses) plus hth (hope this helps).

It is also worth noting that there was an early worry that the former PR community would split into a college (XO) faction and a law faction, located at the JD2B board. A source comments:

[W]hen Marshall [Camp, JD2B’s owner] found out the xo board existed, he not only deleted the JD2B message board, but prominently linked to the board on his site and actively sent traffic our way; basically we were treated as JD2B’s unofficial messageboard.

That site probably accounted for 50-75% of our referring URL traffic in the early days

Organizational Control

Cohen’s – alias Rachmiel – and another user known as Boondocks (from the comics strip?) coded the initial software for the board, which (of course) was unmoderated. Boondocks, I am given to understand, is an African-American man who, though one of XO’s founders, forewent an administrative role after the first two months of the board’s existence.

Instead, in about May, 2004, Anthony Ciolli, a Penn Law student, became partners with Cohen. My sense is that Ciolli – alias “Great Teacher Onizuka” (manga comic reference?) – and Cohen split the board’s revenues 50/50, and share operational control over the permissions on the site.

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Xoxohth, Civility, and Prestige: Part I

xoxo.jpgXoxohth claims to be the “most prestigious law school admissions discussion board in the world.” According to its marketing materials, it controls 70% of the online “market” for “higher education and career discussion”, with around 6000 posts a day on various topics. One of its founders reports that the site receives 350,000 to 500,000 unique visitors every month, making it significantly more trafficked than any other law blog, with the exception of Volokh. (By comparison, we get 60-70K unique hits a month.)

But.

Among many legal scholars and administrators, there is a shared impression that discussion at XO is overrun by sexist, racist, anti-semitic, and just plain foolish talk. The well-known Leiter-XO engagement (see here) is just one example, but it isn’t alone. Based on correspondence, I have learned that multiple law school deans and assistant deans have dealt with the Board when trying to mediate online disputes involving their school’s students. XO has been threatened with legal action (at least twice) involving alleged defamation on the board, although the site is not, to my knowledge, involved in pending litigation. Some wish the entire XO discussion board was a hoax (although others think it may be providing a public service) and some, well, some are mad as hell:

If this is what other lawyers are going to be like, I want out. They make us all look like utter a[*******]. People should avoid law school because it sucks, not because of these jerks.

I’ve written a bit about the Board before, in the context of a US News citation dispute, and since then, I’ve been in contact with one of the Board’s administrators, Anthony Ciolli, a 3L at Penn Law. I think the board is pretty fascinating, primarily because its anonymity enables, and its format records, discussions among rising lawyers that are frank and heterodox (in legal culture) with respect to race, gender relations, and professional development. It isn’t the only forum for such discussions, but it may be the largest.

In subsequent posts, I will be exploring three basic questions about XO.

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3

Pay the Poor to Be Citizens

money.jpgA colleague suggests that there might be a relationship between a series of seemingly random observations:

  • A sudanese cell-phone billionaire announced a prize for good governance, to be awarded to current African leaders when they step down from office. According to news reports, “each leader awarded the prize will receive $5 million spread over 10 years after leaving office. If still alive when the initial prize is exhausted, prize-winners will receive another $200,000 annually until they die.”
  • The Arizona Voter Reward Act, which would establish a $1,000,000 prize whose proceeds would go to a randomly-selected voter, is on November 7th’s ballot. The state’s Chamber of Commerce is opposed: Harvard’s Info/Law project is more open minded. Most think the law would be plainly illegal preempted by federal law even if passed.
  • Jury pay rates are embarassingly low, if meant to be compensatory. Some jurisdictions are funding pilot projects to study if pay raises will increase compliance with jury service.

Here is the question for debate: is there any meaningful way to distinguish the African prize (which many legal commentators no doubt would celebrate) from the voting and jury service problems? Or, more provocatively, are the powerful the only people who we will allow to make money from being good citizens?

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