The Faculty Lounge

Andrew Klein Named Dean At Indiana-Indianapolis Law

Professor Andy Klein of Indiana University-Indianapolis School of Law has been named the school's dean effective July 1.  Klein, who holds a JD from Emory, has has served in the IUPUI Chancellor’s Cabinet as chief of staff since 2010.  In 2012, he also became the university's associate vice chancellor for academic affairs.  He joined the IU-I faculty in 2000, after teaching at Samford University's Cumberland School of Law.

Race and Infertility Care

Several research assistants and I spent last summer looking at websites from virtually every US fertility clinic.  One of the things we recorded was the race of any babies pictured on the first page of the clinics’ websites.  I have no background in critical legal studies or critical race theory, so I am probably not the best person to do this study, but I was looking at other advertising issues on the website, and I had read that minorities use assisted reproductive technologies at a much lower level than Whites, despite experiencing higher rates of infertility and even when states mandate fertility insurance (which should control for wealth effects).

 I was surprised by the results, which are included here.  It turns out that the picture of fertility care in America on websites is quite literally a picture of White doctors helping patients have White babies. 

Addictive Junk Foods

The New York Times has a very provocative article coming out in tomorrow's magazine about the junk food industry.  It is definitely worth a read.  The author draws parallels between the big food industry tactics and big tobacco.  This is an analogy made earlier by Kelly Brownell  Rudd Center for Food Policy and Obesityand his co-author Kenneth Warner in this article "The Perils of Ignoring History: Big Tobacco Played Dirty and Millions Died. How Similar is Big Food"? The Perils of Ignoring History.  One aspect of this story that may be a revelation to many people is the degree to which food has been deliberately engineered to engender what the article calls "the bliss" point.  What should be apparent is that the industry has spent, and continues to spend, billions of dollars on engineering these foods and fine-tuning their marketing pitches. And data mining allows them to be more fine-tuned than ever, as this article from Advertising Age suggests. Facebook to Partner with Acxiom.

A good deal of the advertising dollars spent by advertisers or these products are spent directing ads at children and teens, which, when one considers what is being pitched, doesn't make the analogy between tobacco and junk food seem that far fetched. See for example this quote from the AdAge article: "The targeting would hypothetically enable Coca-Cola to target to teenagers who've bought soda in the last month..."

I have long wondered why it doesn't bother people more than it seems to that so much money is spent pitching directly to kids,  since no one thinks children or teenagers are fully rational choosers (even if we pretend for sake of argument that adults are). So why is it okay to train this battery of persuasive efforts at them? And in many cases marketing efforts are clearly aimed at very young children. The figure of Ronald McDonald is an example.  Is Ronald McDonald the New Joe Camel?

However, just as this issue is getting more attention (again - it saw a good run in the 1970s in the FTC's ill-fated  "Kid-Vid" investigation),  the commercial speech doctrine has become so much more protective of advertising that any proposed restriction on advertising, even if it is to apply only to the most vulnerable group, children, is likely to fail First Amendment scrutiny. Indeed, some academics argued that even the mere proposal by an Interagency Working Group see here formed to try to propose industry self-regulatory guidelines on marketing of junk food to children, would fail the First Amendment because mere publication of such suggestions which did not have the force of law, might have a "chilling effect."  See here and here . It appears it was the government not the marketers, which was "chilled." FTC weakens proposals.  The irony is that given the state of the law, it might be easier to ban certain products, as mayor Bloomberg did, than it is to regulate the marketing of those same products. Yet, for those worried about the "Nanny state" a ban is arguably far more intrusive on liberty than a ban on marketing -- except the marketers' liberty. But the whole idea in protecting commercial speech was that it was supposed to further consumers' liberty, not advertisers. So this is a bit of a puzzle. 

The Ex Ante/Ex Post distinction

Lawrence Solum over at the Legal Theory Blog has this excellent discussion of the ex ante and ex post question as it comes up in analyzing best legal rules and depending on the orientation of the analyst as to whether we care most about outcomes (regardless of fault) or fault (regardless of outcomes). Ex Ante and Ex Post.  (These would be extreme ends of the spectrum).

But the ex ante/ex post problem also extend to the analysis of any issue where you are not sure what the right distribution of resources and investments are.  Ex post, when you know how a particular decision has come out, that decision tends to look inevitable and thus it is easy to criticize the choices made or not made as ones which ignore the "obvious" likely outcome. This is often termed hindsight bias (or Monday morning quarterbacking) and can make decisions seem easier than they were at the time they were made.

In contrast,  a lot of decisions require us to make assessments ex ante - before we know how it is going to "turn out."  And that is one of the problems raised in an earlier post on the value of  scholarship.  How can you calibrate the right amount to invest (even assuming you could come up with an accurate assessment of its cost, a proposition I am skeptical about), if you don't know how much of the "bad" stuff you have to support in order to get the "good" stuff.  And that also omits the even more problematic question about assigning labels like "good" and "bad" to something which  may defy easy calculation in market terms. 

There is an analog to this problem in advertising circles. The old joke goes:  "I know that 50 % of my advertising budget is wasted. I just don't know which half!"  For advertisers the ROI problem (return on investment) is both ex ante and ex post since, although they can track dollar returns from investments in certain advertising campaigns, they can never be sure that they know why a given campaign seemed to drive sales so successfully.  The annals of advertising lore are littered with examples of an advertiser trying to take a proven formula only to have it bomb. Hence the joke. But advertisers have one advantage over academics in any field - they are marketing a product which is sold in the market, not in the so-called "marketplace of ideas," one with a price in dollars (which of course may have little or not connection to its intrinsic worth in some other system of valuation) and advertisers can measure the sales number before and after a campaign. They may not be able to say for sure that it was the campaign that made the difference, but it is often a reasonable inference.

For the hapless evaluator of legal scholarship there are no such clear metrics for tracking the dollar value of scholarship and such metrics as exist (citation counts, downloads, US News peer reputation scores) are, as I observed previously, incomplete at best and woefully inadequate at worst. It may be that investments in scholarship are maldistributed, although I have yet to see an argument for this proposition that doesn't rely on generalizations about legal academics and law schools that I don't think apply as widely as some argue.  Maybe the expenditures on scholarship should be reduced. But deciding on the "which half" part of that question is surely part of the problem presented by any such proposal. 

 

Free speech and off-label use marketing

Makers of pharmaceutical drugs got a fairly significant victory in their quest to have the FDA's regulation of off-label use marketing ruled unconstitutional.  In United State v. Caronia the 2nd circuit overturned the conviction of drug re Alfred Caronia for conspiring to "introduce a misbranded drug into interstate commerce," finding that he was convicted in violation of his First Amendment rights on the basis of his speech promoting the drug Xyrem, a drug to treat narcolepsy, for other uses.

As this article in Forbes notes, the decision is potentially a game-changer since the industry has been paying billions of dollars in fines for violation of the off-label use marketing rules. Does Misdemeanor Misbranding Survive Caronia? 

There is reason to think that a blanket invalidation of FDA rules relating to off-label use marketing is still aways off since this is still just one circuit and the conviction in Caronia relied so heavily on the speech in question. It is still possible to argue that the misbranding question (which is the actual legal authority under which the off-label use regulation is predicted) is generally unaffected and that, in any case, this decision by no means signals that speech cannot be evidence of misbranding conduct. For more on the case see Free Speech and Off-Label Use Conviction  And there is evidence that settlements related to marketing practices continue. Shire Takes $57.5 Charge to Settle Marketing Probe .Yet, it hardly seems like the FDA would want the same Supreme Court that decided Sorrell to review Caronia. And indeed, word is that the FDA is not seeking review. FDA Won't Appeal Free-Speech Marketing. I wouldn't either.That doesn't mean that this decision represents a good development. To the contrary, as I have warned elsewhere, it may well make a good deal of law that we have generally thought of as well-settled, suddenly unstable. 

As the dissent noted: "The majority has chosen to apply heightened scrutiny to this case, though we have not done so in other cases involving the use of speech as evidence of intent—for example, in antidiscrimination actions or prosecutions for criminalinducement, attempt, and conspiracy—cases I cannot meaningfully distinguishfrom this one. The majority’s decision today extends heightened scrutiny further than the Supreme Court ever has, and calls into question a fundamental regime of federal regulation that has existed for more than a century. I respectfully dissent." (dissenting opinion at 30)

The Scylla and Charybdis of Central Hudson

I have said elsewhere ("A Necessary Cost of Freedom"?) that the Supreme Court's decision in Sorrell v. IMS Health may have, for all intents and purposes, done away with the Central Hudson test which any regulation relating to commercial speech must pass.  That test, for those unfamiliar with the doctrine (and really who is familiar with it outside of those litigating around it?), has 4 parts. The first two elements are almost never controversial. Prong 1 is whether the product or service is legal and whether the speech in question about that legal product or service is truthful and not misleading. (There is a wealth of complication here is this deceptively simple requirement but that is a post for another day. Suffice it to say that this is not usually where the fights are).  Prong 2 asks whether a substantial government interest is involved. Again, this is not usually the question around which a fight arises.

The fights usually arise around prongs 3 and 4. Prong 3 requires that the government show that its regulation "directly advance" the goal in prong 2 and Prong 4 requires that it does so without being "more extensive than necessary" to advance that goal in prong 2.

As we look at the many public health issues - off label use marketing, junk food marketing and others - you might notice a problem.  Regulatory efforts which are effective are likely to be fairly broad - say banning certain types of advertising altogether or banning in particular venues and thus will very often run afoul of prong 4.  In contrast, when agencies or legislators try to very narrowly tailor a particular rule, chances seem very good that it will be harder and harder to measure effectiveness or to attribute any change to a particular measure so narrowly tailored provisions may fail prong 3.  This last observation may be exacerbated by courts willingness to interpret the standards for the admissibility of expert evidence under Daubert to require unrealistic standards for causation or, at the very least, to give an advantage to those entities able to marshal a great deal of evidence to cast doubt on a particular claim. The Most Influential Supreme Court Decision You've Never Heard Of.

This may be only one of many reasons not to mourn the potential irrelevance of Central Hudson, although I caution that nominally it is still good law and the Court took pains not to overrule it.  But many an effective intervention could easily get crushed between the jaws of prongs 3 and 4, particualrly in the current environment where courts seem inclined to treat claims for freedom for commercial speech so generously. That is probably bad news for the public health community and perhaps for the regulation of the marketing practices of the financial industry. 

The Smithsonian and Slavery

Mark Auslander's recent article in Southern Spaces, "Enslaved Labor and Building the Smithsonian: Reading the Stones," shows that the stones used to build the original Smithsonian (now known as "The Castle") were quarried by slaves.  The Washington Post has a story about this here.  I guess at this point none of this should surprise me; slavery was so ubiquitous.  When I have some more time I want to talk about Mark's work and about his reliance on probate records to trace the lineage of the slaves who worked at the quarry in Maryland.  And maybe I'll join that with a little talk about the controversy over Jefferson as a slave owner.

Update: Check out the comments to the Post article; there are over 700 as of 5 pm and a bunch are raising the issue of reparations.

The image is of the Smithsonian Building from the Library of Congress' Making of American website.

ACA Oral Argument

While initial media reports suggest the individual mandate is in big trouble, Justice Kennedy asked questions indicative of someone receptive to the arguments in favor of the individual mandate. So did Justice Roberts. While both of them also challenged the Solicitor General, there still is good reason to think that the mandate could be upheld by a 6-3 vote.

The justices want some limiting principles, but there are more than enough distinguishing features of the health care insurance market to assure them that upholding the mandate will not result in a broad, federal power to force people to buy things they don't want to buy.

For my commentary on yesterday's hearings and further discussion about the mandate, see this post on CNN. For the oral argument transcript, see here

[cross-posted at Health Law Profs]

 

What To Drink During Final Exams

"Brain Toniq is no marketing gimmick." 

Additional info here.

And here's a link for those who think a single can won't suffice.

AT&T Advertising for Merger Clearance

Is anyone else bothered by all the advertising AT&T is doing about how much better AT&T service will be after anti-trust clearance of its acquisition of T-Mobile?  AT&T has a "Focus: Houston" web-page that advertises all the upgrades AT&T has made to cell-service in the Houston area. On the right-had side is a link to an interactive map of 4G/LTE service in Texas with, and without T-Mobile.

All that advertising makes two things clear:

• the relative quality of AT&T's existing service; and
• anti-trust law & policy is less about law & policy, and more about politics and lobbying!

It's not your father's anti-trust--or even the anti-trust I studied in law school. As The Byrds, interpreting Bob Dylan's My Back Pages sang:

Ah, but I was so much older then
I'm younger than that now

I suppose it was always about putting your own spin on it.  The Road Not Taken (Frost), and all that.

Travel Deals For The Flexible Traveler

Chris Lund, over at Prawfs, points out this sale at Spirit Airlines: you get $50 off on a round-trip ticket.  But this is some fine print!

* * Coupon usage/booking must be made on spirit.com by 11:59 PM ET on April 25, 2011. This offer is valid only on new, non-refundable roundtrip bookings made for travel from July 3, 2011 - July 4, 2011.

All this from the airline that charges for soft drinks, exit rows, seat assignments, carry-ons and surf boards.

When Is Your Facebook Post A 'Client Solicitation'?

 

According to the Kentucky Bar, when it's of a "legal nature," and includes your name. 

 

 

Why Are Law Firms Spamming Our Comments? Is It Ethical?

Bloggers always see lots of spam in the comments - particularly in the older posts.  These days, we see a ton of comments signed by (presumably faux) Air Jordan, Uggs, and Viagra sellers.  The signature is attached to a link to a commercial site apparently seeking to drive up traffic via the Google algorithm.  When I feel the energy, I clean a ton of them out....but too often they live forever in our archives.  

Recently I noticed some  spam-like comments originating from law firms.    Perhaps too quickly, I erased some of them.   But here are two recent comments  attached to Laura's February 8, 2008 post "Lawyers as Presidential Candidates".  New York Divorce Lawyer - aka The Rosenblum Law Firm - writes:

Most politicians write books, and it makes sense because narcissists tend to like to write books about themselves, but they usually pay someone to do it and then send it as theirs. So they use the proceeds to go into status and money to win elections, a large war chest is important to win.

On the other hand, Tobler Law - aka Tobler & Associates (your accident and injury team) - adds:

Thanks for the post! I had no idea there were so many lawyers as past presidents - I knew about Lincoln and Taft, but the rest I was clueless on.

Now, I recognize that this might not be spam.  Perhaps someone from Tobler was researching this question about lawyer presidents, came upon a two and half year old post,  was stunned to realize that Richard Nixon (to say nothing of Bill Clinton) was a lawyer, and felt compelled to comment.  Maybe Mr. Rosenblum thought this was the perfect setting to pontificate about the use of books as a campaign fund-raising tool.  But call me a skeptic.  I think that these folks are spamming to drive up their Google profile.

Is it ethical for lawyers to do this?  Is the strategic production of spam comments a form of advertising?  If so, is it in compliance with advertising regulations?  Are there other restrictions that might make such spurious comments improper?  Does it make the profession look bad?

I've pondered questions about Lawyers in the Yellow Pages, but I don't have an answer about this.   I'd love to hear others' thoughts.

Celebrating 75 Years of Monopoly

Today marks the 75^th anniversary of the first marketing of the Parker Brothers game of Monopoly. A fascinating history of the original board game and associated lawsuits may be found here. Last year, a 26-year-old lawyer from Buffalo, NY, won $20,580—the total funds available in Monopoly—for winning the game’s national championship in Washington, D.C. He reportedly used his winnings to pay off student loans. When was the last time you played Monopoly, or any other board game?

Visiting Faculty in Promotional Materials

In recent years, I've increasingly been asked to work on/comment on drafts of various marketing materials for my school (brochures, websites, videos etc).  One question that often comes up - and I don't know if there's an established etiquette for this or not - is the boundaries of appropriate use of images of visiting professors in these materials, particularly when these visitors are permanently attached to another school.

I've not had a problem with including pictures of people who have visited to give presentations at conferences etc, because it's usually clear from the context of the photograph that they are presenting a paper, or sitting in the audience at a conference, or other conference-related function (eg lunch or dinner).  What I'm more confused about is the extent to which you could show a picture of someone visiting as a professor, say, teaching in a classroom, advising students in his/her office, sitting in a faculty meeting etc.

Is it misleading to show visiting professors in this context?  And are their home schools within their rights to complain if a visitor is shown in the brochure of another school?  Do any schools have policies on this?

Dear Santa ...

The holiday season will soon be upon us (but let's first get through the AALS Faculty Recruitment Conference!).  And thoughts will turn to buying that "perfect" gift for either the "hard to please" recipient or the "person who has everything."

Need some ideas?  Our friends at Neiman Marcus want to help!  Click here to peruse NM's annual Christmas catalog. 

And if any readers out there just happen to draw my name, I'd be quite pleased to receive this item.

Bad Marketing?

I receive emails now and then from the folks at Barnes & Noble.

This week I was informed that B&N is launching an electronic publication platform.  I'm not a techno-whiz, but I believe that the platform allows a would-be author, by electronic means, to disseminate a work that might not yet have found a traditional publisher.  Today I'm an unknown writer.  But via the B&N platform, I now have the opportunity to reach the masses and become the next Baldacci, Evanovich, Grisham, or Rowling.

A great idea, to be sure.  But I can't get past the trademarked name of the platform.  I'm taken aback, wondering if this is bad marketing.

Just me?  Or do you have the same thought, too?

Marquette Law School's New Ad...

Is really well done.  Marquette recently dedicated their new $85 million building with Justice Scalia as the keynote speaker, I imagine this is part of a well planned marketing push centered around their new facilities.    

I'm guessing that some people may think commercials are a bad idea, but I think this video was a pretty good use of resources (NB: I have no idea how much these things cost, so I might reassess after learning the price-tag).  In any case, in 1:46 I learned a few things about Marquette that I wouldn't have known before: a sports law institute, water law programs, Catholic heritage, and a nice new building that looks like a great place to study and work.  In my mind that video was a better use of marketing dollars than a glossy post card that goes from mailbox to recycling bin.  If you're going to spend money on marketing this was a nice way to do it. 

With that said, in the world of university advertising, I'm really partial to the University of Texas ads by Walter Cronkite.

HT Althouse

Tough Talk In Alabama

Political TV ads in Alabama are serious business this year.  Below, I've linked to three of note.  The first is Tim James' ad demanding that all drivers license exams be administered in English.  The second is an attack ad on James' competitor, accusing him of believing in evolution.  And the third is the gone-viral ad of a gun totin' candidate for agriculture commissioner who blames thugs and criminals for hiding agriculture money.  Worth 90 seconds of your time!

Best Law Firm Ads Ever (Part II)

 Yesterday, I showed you the “Hidden Flaw” ad.  Today, I bring you another favorite, “Hot glass looks exactly the same as cold glass.”  The text reads:

Ever grabbed a business opportunity only to find it’s not quite what you thought?  Our lawyers are experienced at assessing situations and projects, providing the insights that you need to make informed decisions. 

Get in touch via www.pinsentmasons.com

Again, maybe it was the food and wine taking hold, but I found this ad to be pretty clever too.  This night dinner was at Amaya. As the Restaurant Awards Citation says:

"Amaya's arrival on London's restaurant scene has had in remarkably short period of time, a profound effect on the image of Indian cooking in this country... ... ... ...Amaya is elegant, sleek, marbled and beautifully finished, ... ...creating some of the world's most magnificent kebabs. Who would have thought that an Indian grill would become London's top restaurant and in only a matter of months."

 Amaya achieved the rare distinction of winning the two most prestigious restaurant awards in the UK in the same year - The Tio Pepe ITV 2005 Awards for Best Restaurant as well as the Best New Restaurant. This is the first time either award has been awarded to a restaurant serving non - European food, let alone an Indian restaurant.

In 2006, it also became one the very few Indian restaurants to be awarded a Star in any Michelin Red Guide.