14

My Problem With Laptops

quill.jpgProfessors often complain about students using laptops in class. Chief among the complaints is that students send e-mail and surf the web when they should be paying attention—and this is bad for the particular student and a distraction for others who can see this activity going on.

I’m not persuaded by that complaint. I can do more than one thing at once so I’m sure other people can too. Even before laptops students divided their attention between the professor and other activities—a newspaper, a crossword, reading a note. I also figure that if a student, especially in graduate school, isn’t paying attention then I’m not doing a very good job of teaching.

I also happen to like laptops.

So why this semester did I ban my first-year students in Constitutional Law from bringing laptops to class?

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46

Abolish the Bar Exam

barexam3a.jpgThe recent story in the WSJ that Kathleen Sullivan (law, Stanford) failed the Bar Exam raises anew whether the exam ought to be abolished. Before discussing this issue, I must note that I found the story to be a bit sensationalistic for the WSJ, as its main purpose seemed to be to mock Kathleen Sullivan. I was interviewed by the reporter of the story a few days ago because of my blog posts earlier this year (here, here, and here) arguing that Bar Exam should be abolished.

The reporter emailed me and wrote: “I’m a reporter with the Wall Street Journal. I’m researching arguments in favor and against the abolition of bar exams, and wondered if you might have time to share your thoughts on this matter with me today.” I spoke to him about my arguments, but he asked a few times if I could name any prominent professors or lawyers who failed. I told him I didn’t know of any and that even if I did, I would consider revealing this fact to be a bit tawdry, as failing the Bar Exam is considered an embarrassing fact. I didn’t see why it would be necessary to bring embarrassment upon a person for a story about the abolition of the Bar Exam.

I was quite surprised when I read the story, a bit peeved at not being quoted, and somewhat annoyed that the story seemed to be primarily cast as a way to showcase Sullivan’s failure rather than address the problems of the Bar Exam. The reporter did not mention Sullivan at all in my interview.

So since they didn’t make it into the story, I want to reprise my arguments against the Bar Exam. As I wrote in a post called “Bar None”:

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0

AIBOs as Test Objects

aibo.jpgSherry Turkle teaches psychology at MIT, and is one of the leading scholars in the social dimensions of digital culture. Her book, Life on the Screen: Identity in the Age of the Internet, was written in 1995 (an epoch ago in Internet years) but is still probably the most perceptive and well-written (in my opinion) treatments of the psychological dimensions of human-computer interaction. In it, Turkle quotes a statement by Emmerson that dreams and beasts are “test objects” — “two keys by which we are to find out the secrets of our nature.” Turkle adds computers as a new form of test object — she argues that in our attempts to negotiate the meaning of digital objects and spaces, we will face important decisions about who we are, individually and collectively.

As an interesting update to the “test object” notion, see this page from the University of Washington’s Value Sensitive Design Research Lab, and scroll down to the section on Human-Robotic Interaction. There is a wonderful set of papers on the way people relate to AIBOs — the electronic dogs that Sony manufactures. The AIBO is interesting because it is doubly a test object — a virtual dog. The researchers sample human interactions with the AIBO to assess how they differ from interactions with real dogs or inanimate (stuffed) dogs. For instance, do people perceive any ethical issues with regard to the treatment of a robotic dog? Most don’t, though some do. This is from a message board:

WHAT!? They Actualy THREW AWAY aibo, as in the GARBAGE?!! That is outragious! That is so sick to me! Goes right up there with Putting puppies in a bag and than burying them! OHH I feel sick…

But while (I think) most would agree it is silly to treat an AIBO even remotely like a dog, is there anything else to say about AIBO ethics? The authors state that AIBO owners seem to garner some of the psychological benefits of having a pet from a relationship with an AIBO — yet most feel entirely free to ignore it whenever is convenient or desirabe to do so. Which is interesting, considering that we’ll soon have generations of children growing up with richly interactive electronic companions as toys. What might they learn from the availability of such switch on/switch off “real” imaginary friends?

And if you want a legal-doctrinal spin on these questions, see Ian Kerr’s recent paper on e-commerce law: Bots, Babes and the Californication of Commerce: Are we tricked into buying things by electronic babes?

15

NYC Subway Searches Upheld: A Critique of the Court’s Decision

nyc-subway-search2.jpgIn a recently issued opinion, Judge Berman of the U.S. District Court for the Southern District of New York upheld New York’s subway searching policy. Back in July, New York began randomly searching people’s bags at NYC subways. I criticized the policy:

It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.

This landed me in a debate with co-blogger Dave Hoffman, with Hoffman’s views here and my reply here.

Now, in response to an ACLU challenge under the Fourth Amendment, District Court Judge Richard Berman concludes that the policy is constitutional. The court analyzes the checkpoints under a “reasonableness” balancing test, in which the governmental interest is weighed against the invasion of privacy. But in doing so, the court begins by already tilting the scale toward the government’s side — even before the balancing has begun:

Because the threat of terrorism is great and the consequence(s) of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know. (See Pre-Trial Amici Brief, at 14 (“[I]t would be inappropriate for courts to second-guess the judgments of law enforcement and other public officials who are charged with protecting the public and making difficult choices of resource allocation.”).)

I believe that this deference is inexcusable. The courts are charged with determining the constitutionality of the search policy, which depends upon reasonableness. The reasonableness of the policy, of course, depends upon balancing the efficacy of the searches against their intrusiveness, and if the court defers to the government in this regard, it is essentially rubber-stamping the goverment in this determination.

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10

What Does It Take to Establish Probable Cause?

search2a.jpgIn a concurring opinion in United States v. McClain, No. 04-5887 (6th Cir., Dec. 2, 2005), Chief Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit seeks to explain what “probable cause” entails. Under the Fourth Amendment, law enforcement officials often must have probable cause to believe that the place to be searched contains evidence of a crime in order to conduct a search. In describing the standard, however, Judge Boggs defines it as a ridiculously low threshold:

Finally, a word on “probable cause.” While courts have resisted mightily putting a number on probable cause, see Maryland v. Pringle, 540 U.S. 366, 371 (2003), at bottom a review of cases indicates that there must be some, albeit inchoate, feeling as to what kind of probability constitutes probable cause. My reading is that it does not require a belief that there is more than a 50% probability of evidence being found in a particular location. See, e.g., United States v. Gourde, 382 F.3d 1003, 1015 (9th Cir. 2004) (Gould, J., concurring) (collecting cases). If that were the case, one could never get a search warrant to search all three cars of a person for whom there was overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of the others. However, to be more than a hunch or a supposition, in my own mind, requires a legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or that evidence is in a particular location. Using this standard, my judgment would be that there was probable cause to believe that criminal activity was afoot in the house, based on the information on which the officers could reasonably rely that there was not a legitimate reason for activity in the house.

This strikes me as far too low a precentage. Just five to ten percent? It would be nearly impossible for law enforcement officials to fail to establish probable cause, unless they were just conducting a random search. If probable cause is just slightly more than five to ten percent, then what number would Judge Boggs give for “reasonable suspicion,” the lower standard for the police to engage in a stop? One percent?

Hat Tip: How Appealing

10

The return of the BAR/BRI pirates

Is it the end of the line for the great bar-prep near-monopoly?

A new New York Times story discusses the issue:

In complaints filed in the spring and summer, different groups of students charged that BAR/BRI has paid competitors to shut down and negotiated illegal agreements with potential competitors to divide the market. In particular, they cite a 2003 agreement with Louisiana State University, which until 2004 operated its own bar review course; under the deal, BAR/BRI promised to pay tens of thousands of dollars each year to the school, and the school promised not to run a competing bar review course.

It will be interesting to see how the allegations play out. I don’t know enough about the case to have any opinion on the merits, but I will be keeping an eye on it. Also, I’ll be wondering how it affects my own school, which is in the process of implementing a new bar prep course. (Advance word about the course is good, and I hope it works well). In any case, the story notes some of the reasons bar prep courses are so attractive:

Each state’s exam, typically the second day, usually consists of essays and multiple-choice questions that focus on the law in that particular state. The kinds of questions often require knowledge of topics that some students might not have learned about in school, adding to the allure of a review course aimed precisely at the topics on the exam.

Which raises its own questions. If BAR/BRI is doing an effective job of getting law graduates past the bar, are they really helped if it is shut down? The suit alleges that BAR/BRI overcharges its customers. But I’m willing to be overcharged a little for a system that works.

1

I can’t drive (over) 55.

Canada is testing technlogy that will make it difficult or impossible to speed:

The system being tested by Transport Canada, the Canadian equivalent of the U.S. Department of Transportation, uses a global positioning satellite device installed in the car to monitor the car’s speed and position. If the car begins to significantly exceed the speed limit for the road on which it’s travelling the system responds by making it harder to depress the gas pedal, according to a story posted on the Toronto Globe and Mail’s Website.

This seems wrong on so many levels it’s hard to list them all. It is very much within a nebulous zone as far as privacy. It is a very troubling kind of search-and-seizure (with immediate sanctions). It vastly increases the power of the nanny state, all to add a negligible benefit. (Oooh! People will be driving no more than 25 in a 25 zone! That’s high on my priority list! We can catch terrorists later.)

Worse, I have to wonder about the inevitable mistakes that will creep in. What happens when a software bug turns the freeway into a 35 zone? And how will a population of hanicapped cars mesh with the population of unhanicapped cars?

Finally, this one-size-fits-all solution ignores the very real instances in which speeding is acceptable. The system leaves no room for the proverbial rush-to-the-hospital-she’s-having-a-baby. Other medical emergencies are likewise ignored. If my wife or child is bleeding in the back seat with a severe wound, or suffering a seizure, or burning with a 106 degree fever, you had better believe I’ll be speeding.

Maybe even worse, this opens some drivers up to be easier targets for criminal activity. If I’m driving a handicapped car in a rough part of town or a sparsely-used section of highway, I may be targeted by carjackers or worse, who will know that I can’t simply put pedal to the metal to escape them. If they drive old-fashioned un-handicapped cars (which can exceed the speed limit, while I can’t), then I’ll be easy prey. (Would I have a claim against the government?)

All in all, it seems like a change that introduces an awful lot of negatives, just to cut down on speeding.

6

Property for sale: Great views, large lots, no Blacks.

Sound like a real estate ad from 1955? Try 2005. As reported in the Salt Lake Tribune:

Eagle Mountain is a burgeoning Utah County community, full of young families, new homeowners and white people. Lots and lots of white people.

The racial breakdown of Eagle Mountain was listed as a selling point on the Web site of home builder Bigg Homes. The site also included this comparison among others: “Black race population percentage significantly below state average.” “Significantly below” was in bold.

whites.jpg

The ad — which seems to be a likely violation of the Fair Housing Act — has been pulled. The developer is apparently “considering” firing its web designer, who put the information on the site.

The information is apparently accurate and drawn from state demographic data — Eagle Mountain has a black populace of 0.6 percent, significantly lower than the state average.

Economists have argued — Gary Becker, for example — that workplace discrimination is inherently inefficient and will eventually be driven out of the market. (There is a great back-and-forth between Posner and Donohue on the topic, from several years back). However, the Eagle Mountain case highlights a fact that no one seems to talk about much (except for Richard Epstein) — that there is in fact a market for discrimination. That’s one of the descriptive ideas in Epstein’s book Forbidden Grounds, and it’s absolutely right.

I disagree with Epstein’s subsequent normative argument — that since there is a market for discrimination, it should be allowed to exist — but he’s absolutely right to note that there is indeed a market for discrimination. People will sometimes pay for discrimination. They’ll do it in their housing — see Eagle Mountain — and they’ll do it in their employ. This is one reason why the optimistic Becker model — market forces will end discrimination — is incomplete.

As for the Eagle Mountain example, I’m curious as to how much this particular developer’s site reflects community norms in Eagle Mountain. I know one person from Eagle Mountain, and I’m going to drop him a line and see what he thinks of this. (I should note that he’s a very nice person, and is not, that I can tell, at all racist.)

3

The South Africa Marriage Case

simpsons_wedding.jpgOn December 1, 2005, the Constitutional Court of South Africa, in Minister of Home Affairs v. Marié Adrianna Fourie, ruled that laws denying same-sex couples the ability to marry violate the equal protection provision of the South Africa Constitution and the provision prohibiting unfair discrimination on the basis of (among other things) sexual orientation. The Court gave Parliament one year to fix the laws to extend equal marital rights to same-sex couples.

Loving v. Virginia (1967), in which the U.S. Supreme Court struck down Virginia’s ban on interracial marriage, is the most aptly named case in all of American jurisprudence. It’s equally appropriate that the lead plaintiff in the South Africa case extending equality in marriage has the first name of Marié.

There is much to admire about the South Africa Court’s decision. It represents the triumph of equality and compassion over exclusion and small-mindedness.

Whatever one’s views about the relevance of foreign legal decisions, there is something to learn from this one. The Constitution of South Africa and the post-Reconstruction Constitution of the United States were both designed to end institutionalized inequality. When South Africa tells us that full equality includes equal access to marriage, we should listen.

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