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Hello!

Just a quick note to say that I’m happy to be serving you fresh legal blog entries. No lard or preservatives will be used. And if there’s anything I can do to improve your dining experience, just let me know.

I thought I’d start with a tasty Second Life dish that is making the rounds. For those who don’t know, Second Life is a virtual world in which millions of people do virtual work, go to virtual dance parties, build and sell virtual things, and, well, spend a lot of their real lives in front a computer doing all that.

I’ve never played Second Life and don’t really want to. Nor am I really interested in the legal considerations that normally get Second Life into the news (questions like: “What is virtual property?” and “Can I be taxed on my virtual income?”) Indeed, I think the best thing about Second Life is that it inspired the clever parody site, Get a First Life.

So why am I going on about it?

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Can NVivo Qualitative Empirical Software Help Manage Oceans Of Research?

One of the real challenges for a legal scholar (and probably researchers in many other social science disciplines as well) is figuring out what to do with all those interesting articles you read. Do you make notebooks organized by topic? If so, what happens when a piece has something important to say on multiple topics? Do you create index cards, or their digital equivalents, with relevant quotes? Or, like me, do you find yourself rediscovering the wheel several times – putting an article aside in stack on day one, and rediscovering it on Lexis or Westlaw four months later when you’re searching for a different issue?

I find that keeping control of existing literature, a critical process for those who publish in law reviews (which demand a footnote to support even the most mundane statements), turns out to be a burdensome and sometimes unsuccessful pursuit. As a result, I’m very intrigued by the idea of using NVivo to help.

What is NVivo? It’s a leading qualitative empirical research software. Yes, Virginia, I did say qualitative. As many folks know, one of my biggest beefs with Empirical Legal Studies is that some of its followers have marginalized qualitiative research – so much that many people with only a passing awareness of ELS believe that all empirical work is quantitative. That discussion is for another day, however. The point is that qual researchers use software to help them keep track of their data…which is to say, their texts. My understanding of NVivo – formerly known as NUD*IST – is that you can take texts (like law review articles) and drop them into the software. You can then create coding fields, and mark selected text as part of such fields. (A discussion of the capacities of qual software is here.) For example, if one were studying the way that courts discuss victims in rape cases, and had created a sample for investigation, one might load the selected cases into NVivo. As the researcher creates particular fields – for example “victim dressed provocatively”, “victim drinking”, “victim previously worked as prostitute” (as well as “circuit court”, “appellate court”, “female judge”) – she can then mark text in each case that would fit into the field. This allows her, at a later point, to do targeted searches for particular marked themes – and also allows her to subdivide by the traits of the cases. Thus, she can identify all the decisions by female judges that identify females as victims, and break them out by year.

I wonder whether many legal scholars who don’t do qualitative work could benefit from this software simply by using it as a way of containing, coding and organizing all the articles they read in the course of their literature review. I haven’t heard of anyone doing this, but it seems like it might make a lot of sense – particularly for somewhat disorganized researchers. It might not take advantage of all the power of NVivo, but it could be the equivalent of the smartest filing system ever created.

Does anyone have experience with NVivo, or other similar software (like Atlas), that might shed light on this? By the way, many schools have site licenses for this software, so many of those interested in trying this out can do so without spending a dime.

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Introducing Guest Blogger Donald Braman

braman-don1.jpgI’m delighted to introduce Professor Donald Braman, my colleage at George Washington University law School. Don teaches Criminal Law, Evidence, and a seminar on the Culture Wars. He holds a PhD in cultural anthropology and a JD, both from Yale. Don is a member of the Cultural Cognition Project, and coauthor of various articles and papers investigating the effects of culture on law and policy, including Cultural Cognition and Public Policy (with Dan Kahan).

Don’s publications include a book, Doing Time on the Outside (Michigan 2004), which investigates the effects of incarceration on family and community life.

Some of his recent articles include:

* Cultural Cognition and Public Policy, 24 Yale Law & Policy Review 147 (2006) (with Dan Kahan)

* Criminal Law and the Pursuit of Equality, 84 Texas Law Review 2097 (2006)

* Punishment and Accountability: Understanding and Reforming Criminal Sanctions in America, 53 UCLA Law Review 1143-1216 (2006)

* More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. Pa. L. Rev. 1291 (2003)

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Prizes, pieces, and property rights

David Leonhardt’s Economix column today suggests that prizes may be a useful way of stimulating innovation. His primary example is Netflix.com’s million dolar prize for any one that can improve its movie suggestion algorithm by 10%. The current best team is at 6.75 percent. Netflix may be better positioned than most companies to be able to offer prizes that will provide the winners reputational benefits that may exceed the value of the prize itself, but Leonhardt may still be right that prizes are an often overlooked means of accomplishing corporate goals.

The Netflix.com prize is an example of “crowdsourcing.” The web site Innocentive contains many such crowdsourced offers. If, for example, you can develop a pressure sensitive adhesive for re-sealing flexible bags for salty snacks (the adhesive must not adhere to potato chips or hands reaching in to take out chips), you can make $50,000 (plus the eternal gratitude of me, a Doritos connoisseur). An advantage of this approach over conventional sourcing is that the project sponsor does not need to assess the quality of those who may work on the project.

Why do we not see more crowdsourcing via prizes? See my comments after the jump.

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Upcoming UCLA Con Law Conference, & My Paper on Prisoner/Student/Employee 1st Amdmt Claims

A few days ago I finished drafting my paper for this Friday’s UCLA Law Review Symposium, Constitutional “Niches”: The Role of Institutional Context in Constitutional Law”. You can download my paper here; it’s very much a draft, and I’ll be busily working on the final version over the next two or three weeks, so I’d love any feedback!

For anyone interested in the topic and in/near L.A., the conference looks like a really tightly-packed day of Con Law bigwigs: Fred Schauer (whose work I really admire, though my paper notes an exception to one of his theses); Cynthia Estlund (the conference’s resident employment law bigwig); John Yoo, formerly of the Bush Admninistration (will he offer more “tortured” interpretations of executive power and detainees’ rights against torture?); Dawn Johnsen, formerly of the Clinton Administration (most likely to have her torture authorized by John Yoo?); and many others, but this list already is getting too long. Don’t ask how I got into this crowd — I’m just happy to be there; Paul Secunda and I feel like we’ll be the kids at the grown-ups’ table!

I haven’t written a real abstract yet, but here’s an informal one:

The paper notes Fred Schauer’s criticism that First Amendment law gives too little consideration to how speech rights should vary in different institutions (e.g., government institutions sponsoring arts or election speech; obscenity/pornography being judged similarly whether in print, on the internet, over the phone lines) — but the paper notes one area in which institutional context appears to be given too much consideration. Specifically, would-be speakers located within certain government institutions — students in public schools, employees in government workplaces, and prisoners — have far lesser speech protection; rather than apply heightened scrutiny to speech restrictions, courts substantially defer to those institutions’ speech restrictions and actually apply different legal “tests” in each of the three contexts. Courts rarely explain why different tests apply in these areas, so the article, partly based on economic analysis, (1) tries to discern, as a descriptive matter, the reasons courts apply less speech-protective tests in these contexts and (2) criticizes those reasons as exaggerations of the uniqueness of the three institutions (schools, prisons, and workplaces), or at least finding that those reasons vary in persuasiveness among the three institutions. Ultimately, the article concludes that courts should apply not institution-specific legal tests, but standard heightened scrutiny, to speech rights claims in these institutions, just as it does under the Equal Protection Clause.

Tech Law Prof as Prognosticator

fortune teller.jpgMy appearance on David Levine’s Hearsay Culture show recently showed up on iTunes–somewhat ironically given my repeated criticisms of the great and terrible Jobs. As I listened to part of the show, I was struck by how much the legal analysis of search regulation was dependent on future business and technology developments. If Google’s dominance in the market continues to grow, then one range of regulatory regimes seems necessary. But if there are diverse successful search engines, a wholly different approach is plausible.

The whole exercise reminded me of Warren Wagar’s fascinating book, A Short History of the Future, which tries to envision the next 200 years of world history. Projecting tech trends that far out must in part be in an exercise in fantasy–but on the other hand, the very process of doing so is a humbling reminder of how much events depend on utterly contingent developments that came before.

For that reason, perhaps, the old “long-form” scholarship of the big law-review article may be becoming increasingly ill-suited for rapidly changing areas of technology. Perhaps that’s why the recent Wu-Yoo debate on net neutrality, or Wu’s even more recent take on the future of indie movie gatekeeping, is so refreshing. It makes little sense to develop a vast architectonic theory for a mandala of protean corporate players.

On the other hand, we can’t let the mere mutability of the tech landscape cow us into passivity. There is no neutral baseline in these fields–they are already so saturated with government intervention in the form of IP rights, regulation, etc., that it makes no sense to characterize any given “noninterventionist” move as promoting the unalloyed efflorescence of the market. Whoever wins any given battle among content providers, intermediaries (like search engines) and network operators (like phone and cable co’s), the result will be due to a lot of prior lobbying and shaping of the law–whatever stance legislators and regulators take heretofore.

Photo Credit: LongView/Flickr, “Pike’s Fortune Teller.”

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The Hottest Internet Startup of 1960

Some legal research the other day unearthed a hilarious-in-retrospect account of the first online legal research service — a (pre-)internet startup from almost 50 years ago whose success-and-seediness story is eerily similar to those of more recent tech startups:

Law Research Service is a child of the computer age. In 1960, Hoppenfeld, a lawyer with some background in computer technology, perceived that computers could greatly facilitate legal research. He concluded that a practical system could be developed in which thousands upon thousands of court opinions would be fed into a computer, so that when a legal problem was submitted to the machine it would then select and retrieve all the relevant precedents . … [L]awyers would … pay an annual subscription and a small fee per inquiry. … Similar ideas for marrying computers to the law have been put forth but it seems that LRS was the first such legal information retrieval system to be tried commercially.

Sanders suggested a public offering which would raise not only enough money to cover the LRS’s debt … but would permit LRS to expand its computer library to cover decisions of the federal courts as well as those of the New York courts then already on tape.

Globus v. Law Research Service, 418 F.2d 1276 (2d Cir. 1969) (emphases added to the phrases that made me smile). I just wanted to share this as a nifty piece of legal history trivia, not so much comment on it… but I do have two quick points to make in the “more things change, the more they stay the same” department:

(1) The reported case was a now-familiar type of securities fraud lawsuit: alleging shady practices to raise capital for a tech startup.

(2) Between the financing problems and the “small” fee per inquiry business model: Is there something in the genetics of tech startup visionaries that they assume they can provide huge quantities of information to the masses without much means of actually making money?

Trans-Scientific Facts on Endless Trial

late doctor.jpgIs there a doctor shortage? Judging from the fact that physician salaries in the US are much higher than in comparable OECD countries, and given that leading trade associations and experts finally are calling for the training of more doctors, you might think so. Consider the Association of American Medical Colleges’ position, reported in the Chronicle of Higher Education:

Instead of a glut, experts now fear the nation will face a serious shortage of physicians just when the aging population will need them most. That stunning about-face began in 2002 with an admission by the Association of American Medical Colleges and other groups that the surplus projections by health-care analysts and policy makers may have been a mistake. “It is now evident that those predictions were in error,” the association stated last year in a report that called on medical schools to increase their enrollments by 30 percent by 2015, both by expanding existing schools and creating new ones.

When I made that point at a health law workshop in 2005, some skeptics quickly piped up: “That’s contestable. Some people think there are way too many doctors.” Neighsayers pop up in the Chron. article, too:

David C. Goodman, a professor . . . at Dartmouth Medical School, [says that] “[r]ather than spending more resources on training more physicians, we should be focusing on building more-efficient delivery systems.” . . .Simply graduating more physicians will not ensure that care is getting to the people who need it most, the Dartmouth researchers argued. Most will probably crowd into regions of the country that already have large numbers of doctors, rather than moving to rural areas or inner cities where more medical care is needed. A larger number of graduating physicians also does not guarantee that the physician work force will be appropriately distributed among specialties.

As if the government couldn’t use its subtantial role in funding medical education to condition support on schools’ addressing such issues.

Such advocacy appears increasingly irresponsible as the US imports more and more medical personnel away from less developed countries (for example, “604 out of 871 medical officers trained in [Ghana] between 1993 and 2002 now practice overseas.”). Yet reporters, ever-eager to give the appearance of objectivity, continue “balancing” overwhelmingly dominant positions with half-baked contrarian challenges.

The endless debate over the physician shortage reminds me of a classic administrative law issue–the “trans-scientific fact,” or factual judgment infused with values and assumptions about future policy. Certainly the statement “there is a doctor shortage” can never be as objective as, say, “the earth orbits the sun.” But when someone challenges it in the face of massive consensus to the contrary, don’t they have the obligation to at least respond to the most basic arguments undermining their position? And don’t journalists have an obligation to ask these types of questions? Without that kind of substance, objectivity becomes mechanical, a mere tool for the “social construction of ignorance.”

Photo Credit: Flickr/sarcasmo, “Doctor Come Lately.”

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Law, Revelation, and the Power of Interpretation

MormonsInJail.jpgI realize that this is antediluvian in blog time, but last Friday Paul Horwitz had a very interesting post at Prawfs about teaching the Mormon Cases in his Law & Religion class. The Mormon Cases, of course, are the series of the decisions issued by the U.S. Supreme Court at the end of the nineteenth century holding that various laws designed to punish Mormons for polygamy — criminal sanctions, disenfranchisment, and confiscation of property — did not violate the Free Exercise Clause. These cases hold a special place in my heart, in part because it was in first studying them that I became interested in law and second because of my family and religious history, I can’t help but think of these cases as my constitutional patrimony. (Paul’s post also reminds me that I really need to get my paper on the Reynolds case finished and sent off to the law reviews!)

His provocative suggestion is that profs who teach these cases ought to include in their materials the Revelation that Wilford Woodruff, then president of the Mormon Church, published in 1890 announcing the Church’s abandonment of polygamy. He writes:

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Real Estate Appraisals and Copyrighting Facts

As reported by the Washington Post, an interesting intellectual property dispute is brewing in the real estate appraisal business. On one side are traditional real estate appraisers, who charge several hundred dollars for an appraisal that typically involves an onsite inspection. On the other side are online appraisal services that, relying on their databases and some algorithms, offer lenders an instantaneous appraisal at a small fraction of the cost.

The traditional appraisers are upset because the online services may be extracting information from their appraisals and using that information to improve their databases (and thus the accuracy of their online appraisals). Taken to its logical extreme, as online appraisers get better databases by capturing data from the traditional appraisers’ inspections, traditional appraisers will destroy their own industry.

Not surprisingly, the traditional appraisers are looking for ways to preserve their market niche, and intellectual property doctrines can be great tools to hinder marketplace competition. So the WaPo article mentions that the traditional appraisers are considering their copyrights in their appraisals. After all, traditional appraisers put in their sweat of the brow, so shouldn’t they be rewarded? (The article provides some good quotes reflecting this paradigm).

We know how this argument goes. Copyright doesn’t protect the labor invested to generate facts. Appraisers probably can copyright the report in its entirety, and they may even be able to copyright their specific price estimate (see, e.g., CDN v. Kapes), but there should be no way for appraisers or anyone else to obtain copyright protection for a home’s basic specifications (e.g., square footage, age, number of rooms). As a result, copyright law does not provide appraisers with any effective way to restrict online databases from extracting facts from their reports. Thus, if traditional appraisers are looking for a tool to restrict competition from online factual databases, copyright law may not be very helpful.

Even if copyright law isn’t availing, traditional appraisers have other tools at their disposal, including:

* providing services that online database providers can’t, such as the increased accuracy associated with the onsite inspections.

* restricting access to the appraisals. Right now, it appears that the biggest online database service gets some data by providing an online tool for appraisers to submit their reports to lenders—thus, allowing them to extract facts from appraisals that cross the network. Traditional appraisers could try to discourage lenders from using this delivery service, thereby making it harder or impossible for the online service to see the appraisals. Alternatively, if they keep using this delivery service, traditional appraisers could negotiate a contract that limits the service’s ability to extract facts. (The contract is probably some standardized click-through agreement, but it’s negotiable in theory).

* if traditional appraisers really think they are losing money, they could just increase their fees to lenders to cover the lost value (good luck!).

But despite these options, the long-term prognosis may not be very good. A good appraisal always will need an onsite inspection, but just about every other aspect of the appraisal business can be replicated or eliminated through online mechanisms. Thus, it could be that the Internet is disintermediating the appraisal industry, and no amount of rear-guard intellectual property saber-rattling will change that fact.