Cambridge University Press has published a new book by Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex University, UK): Lifetime Disadvantage, Discrimination and the Gendered Workforce. Here is the publisher's description:
Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women's labour force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards eliminating women's discrimination and disadvantage is required before true gender equality can be achieved. Using the concept of resilience from vulnerability theory, the authors advocate a reconfigured workplace that acknowledges yet transcends gender.
Thomas Jefferson has a nice press release here.
I'm delighted to mention that the March 2016 issue of the American Journal of Legal History is up on the web and the hard copy will be arriving in subscribers' mailboxes very soon. This is the inaugural issue with our new publisher, Oxford University Press. From our founding in 1957 through last year the journal was published by Temple University's law school. As part of the re-launch, Stefan Vogenauer and I decided we wanted to hear from a slate of distinguished legal historians about where legal history scholarship is going (or should be going). We asked them to write articles about the "future of legal history." We invited them to write about how they were thinking about the future of legal history. Our authors ended up writing on a huge range, from the methods of analysis to the subjects, to what motivates us to write.
Also this morning at the OUP Blog I have a post about my aspirations for the American Journal of Legal History. The post emphasizes the applied aspects of legal history, but I hope and expect that we'll be publishing terrific scholarship across a broad range of subjects and geographic locations and time periods. Some will speak rather directly, I expect, to contemporary policy; much of the work will be directed at other questions and audiences. I love the illustration the editors chose for the post -- the Edmund Pettus Bridge. Close followers of faculty lounge may recall that it was the subject of a trivia question a while back.
The table of contents is as follows:
Introducing the Future of Legal History: On Re-launching the American Journal of Legal History, Alfred L. Brophy and Stefan Vogenauer 1
The Future of Legal History: Roman Law, Ulrike Babusiaux 6
The Future of the History of Medieval Trade Law, Albrecht Cordes 12
A Context for Legal History, or, This is not your Father’s Contextualism, Justin Desautels-Stein 29
If the Present were the Past, Matthew Dyson 41
For a Renewed History of Lawyers, Jean-Louis Halperin 53
Is it Time for Non-Euro-American Legal History?, Ron Harris 60
A Comparative History of Insurance Law in Europe, Phillip Hellwege 66
Legal History as Political Thought, Roman J. Hoyos 76
Constitution-making in the Shadow of Empire, Daniel J. Hulsebosch 84
First the Streets, Then the Archives, Martha S. Jones 92
Expanding Histories of International Law, Martti Koskenniemi 104
Sir Ivor Jennings’ ‘The Conversion of History into Law,’ H. Kumarasingham 113
Federalism Anew, Sara Mayeux and Karen Tani 128
Law, Culture, and History: The State of the Field at the Intersections, Patricia Hagler Minter 139
The Future of Digital Legal History: No Magic, No Silver Bullets, Eric C. Nystrom and David S. Tanenhaus 150
Writing Legal History Then and Now: A Brief Reflection, Kunal M. Parker 168
Beyond Backlash: Conservatism and the Civil Rights Movement, Christopher W. Schmidt 179
For a limited time the entire issue is ungated. Check out all the articles here.
The interdisciplinary journal Studies in Law, Politics, and Society has published a special issue devoted to Feminist Legal Theory. Here are the articles and their abstracts:
Half a century after the beginning of the second wave, feminist legal theorists are still writing about many of the subjects they addressed early on: money, sex, reproduction, and jobs. What has changed is the way that they talk about these subjects. Specifically, these theorists now posit a more complex and nuanced conception of power. Recent scholarship recognizes the complexities of power in contemporary society, the ways in which these complexities entrench sex inequality, and the role that law can play in reducing inequality and increasing agency. The feminist legal theorists in this volume are emblematic of this effort. They carefully examine the relationship between gender, equality, and power across an array of realms: sex, reproduction, pleasure, work, money. In doing so they identify social, political, economic, developmental, and psychological and somatic forces, operating both internally and externally, that complicate the expression and constraint of power. Finally, they give sophisticated thought to the possibilities for legal interventions in light of these more complex notions of power.
This paper explores four works of contemporary fiction to illuminate formal and informal regulation of sex. The paper’s co-authors frame analysis with the story of their creation of a transdisciplinary course, entitled “Regulating Sex: Historical and Cultural Encounters,” in which students mined literature for social critique, became immersed in the study of law and its limits, and developed increased sensitivity to power, its uses, and abuses. The paper demonstrates the value theoretically and pedagogically of third-wave feminisms, wild zones, and contact zones as analytic constructs and contends that including sex and sexualities in conversations transforms personal experience, education, society, and culture, including law.
This is an article about sex and rape and the messy determinations of consent that mark the boundary between the two. More specifically, the article evaluates the modern baseline presumption of non-consent in sexual encounters in light of different theories of sexuality (feminism on the one hand and sex positivism/queer theory on the other) and in light of how sexuality manifests itself in the lives of contemporary young people. We analyze sexting, media imagery and hook-up culture to find that neither feminism nor sex-positivism provide an accurate account of contemporary sexuality, but neither theory gets it all wrong either. The gendered scripts that troubled feminists continue to govern many casual sexual encounters. What has changed is the extent to which women embrace their own sexual agency and their clear rejection of 2nd wave feminism’s messages with regard to gender and sexual objectification. Empirical work confirms that the sexual encounters that many young women participate in could be classified as rape under the modern legal presumption of non-consent, but most women reject classifying what happens as rape. Their belief in their own agency allows women to construct away their injury. This suggests that nonconsensual sex may not be or is not perceived by its victims to be as injurious as some feminists suspected, but it also means that sex positivists need not worry about over-deterring sex. Women who don’t feel injured, don’t bring rape charges. Moreover, our analysis shows that despite, or perhaps because of, women’s celebration of their own sexual objectification, a great deal of unwanted sex happens, whether consented to or not. This means that while the presumption against consent may not have much effect, it likely does little harm, and if it deters anything it likely deters unwanted sex, whether consented to or not.
From the mid-1980s to the mid-1990s, several prominent feminist legal scholars made a case for “difference feminism.” Inspired by psychologist Carol Gilligan’s classic text, In a Different Voice, these scholars argued that social relationships, caring, and the emotions should be recognized as important to jurisprudence and legal regulation. Today, difference feminism is no longer a dominant movement within legal scholarship, but reformers are bringing “mindfulness,” “emotional intelligence,” and attention to relationships into law and business - a development dubbed “therapy culture” by its critics. This essay describes some of the manifestations of therapy culture in law and argues for more feminist engagement.
This essay poses the question of whether the mainstream feminist movement in the United States, in concentrating its efforts on achieving gender parity in the existing workplace, is selling women short. In it, I argue that contemporary U.S. feminism has not adequately theorized the problems with the relatively unregulated market system in the United States. That failure has contributed to a situation in which women’s participation in the labor market is mistakenly equated with liberation, and in which other far-ranging effects of the market system on women’s lives inside and outside of work - many of them negative - are overlooked. To theorize the effects of the market system on women’s lives in a more nuanced manner, I borrow from the insights of earlier Marxist and socialist feminists. I then use this more nuanced perspective to outline an agenda for feminism, which I call “market- cautious feminism,” that seeks to regulate the market to serve women’s interests.
This paper explores the relationship between feminist theory and rising economic inequality. It shows how greater inequality reflects the valorization of the stereotypically male qualities of competition and hierarchy, producing a greater concentration of wealth among a small number of men at the top, shortchanging men more than women through the rest of the economy, and altering the way that men and women match up to each other in the creation of families. By creating a framework for further research on the relationship between the norms of the top and the disadvantages of everyone else in more unequal societies, the paper pro- vides a basis for feminists to develop a new theory of social power.
The paper demonstrates how the development of winner-take-all income hierarchies, the political devaluation of families and communities, and the terms of the family values debate diminish equality and community. The paper addresses how to understand these developments as they affect both the structure of society and the allocation of power within our families in ways that link to the historic concerns of feminist theory.
Derek Parfit’s non-identity problem calls into question the claims of both the state and individuals when they purport to act for the benefit of future children. This paper discusses how adoption of the non-identity argument as a legal argument could affect reproductive and family policy, demonstrating that it undermines the child-centric approach to assigning legal parentage. The paper concludes, however, that these non-identity problems can be solved by the expected value approach, which demonstrates that efforts to benefit future people can be logically coherent even if those efforts also affect the genetic identities of the future people.
Grey Gordon and Aaron Hedlund create a sophisticated model of the college market and find that a large fraction of the increase in tuition can be explained by increases in subsidies.
With all factors present, net tuition increases from $6,100 to $12,559. As column 4 demonstrates, the demand shocks— which consist mostly of changes in financial aid—account for the lion’s share of the higher tuition. Specifically, with demand shocks alone, equilibrium tuition rises by 102%, almost fully matching the 106% from the benchmark. By contrast, with all factors present except the demand shocks (column 7), net tuition only rises by 16%.
These results accord strongly with the Bennett hypothesis, which asserts that colleges respond to expansions of financial aid by increasing tuition. Remarkably, so much of the subsidy is translated into higher tuition that enrollment doesn’t increase! What does happen is that students take on more debt, which many of them can’t pay.
In fact, the tuition response completely crowds out any additional enrollment that the financial aid expansion would otherwise induce, resulting instead in an enrollment decline from 33% to 27% in the new equilibrium with only demand shocks. Furthermore, the students who do enroll take out $6,876 in loans compared to $4,663 in the initial steady state….Lastly, the model predicts that demand shocks in isolation generate a surge in the default rate from 17% to 32%. Essentially, demand shocks lead to higher college costs and more debt, and in the absence of higher labor market returns, more loan default inevitably occurs.
Contract law scholars may be interested in a new paper, The Relational Economics of Commercial Contract, recently posted to SSRN by Chapin Cimino of Drexel Law School:
For almost half a century, the mainstream law-and-economics movement in contract law has zealously protected the parsimony – or simplicity – of economic analysis. The faith in ever-increasing formality is captured both by stubbornly spare assumptions about human behavior and tightly controlled econometric modeling. With few exceptions, the trend in most mainstream contract law scholarship – where the law-and-economic approach is dominant – has been toward excluding, not including, any variable which would capture the realities of actual contracting behavior. This trend has fueled the rise of neo-formalism in both contract theory and doctrine to the exclusion of other accounts.
At the same time, however, economic empiricists in other disciplines have been capitalizing on insights from sociology – insights almost as old as the law-and-economics movement itself – showing not only that, but also how, commercial actors in contemporary transactions rely on cooperative social behaviors common in everyday contracting. These behaviors, called relational norms, were originally identified by law-and-sociology professor Ian MacNeil as part of what is now called relational contract theory. Since the early 1990’s, economics scholars working mostly in the fields of marketing and strategic management have included relational norms as key variables in transaction cost analysis research. Strangely, though this work has clear implications for contract law and theory, this work has yet to be discussed in contract law literature. This article breaks new ground by introducing that work in contract law scholarship. The article shows how, contrary to received wisdom in law-and-economics, including relational behaviors in transaction cost research can improve, not detract from, the predictive power of economic analysis.
I think Cimino oversimplifies both the modern law and economics approach to contract as well as the reasons for some of its adherents’ attachment to formalism. For example, Cimino argues in the paper that:
For the past half-century, law and economics has played the dominant role in contracts scholarship. Scholars in this tradition value the prediction of behavior based on a cost-benefit analysis over the ability to precisely describe the world in which that behavior occurs.
Of course, that describes some contract scholarship in the law & econ tradition, but far from all of it, and even scholars making simplifying assumptions for the sake of modeling often have valid reasons for those assumptions – for example, to highlight and provide insights into a particular aspect of contracting behavior. And my own sense is that some of the law and economics scholars cited in the paper favor formalist approaches, not out of a vague attachment to simple predictive models, but because they believe it will lead to the most favorable results under real-world relational contracting conditions (such as sophisticated repeat players and informationally disadvantaged courts).
Nonetheless, the paper discusses in detail literature of which many contracts scholars may be unaware and argues for its relevance to current contract law debates, so be sure to read the whole thing here.
Interestingly, the call to turn to the nuance of sociology rather than to the simplicity of economics comes at a time when at least some sociologists are urging the opposite result. In Fuck Nuance, my co-author (on, coincidentally, a contract law paper), the sociologist Kieran Healy argues that:
Nuance is not a virtue of good sociological theory. Sociologists typically use it as a term of praise, and almost without exception when nuance is mentioned it is because someone is asking for more of it. I shall argue that, for the problems facing Sociology at present, demanding more nuance typically obstructs the development of theory that is intellectually interesting, empirically generative, or practically successful.
. . .
To take the most obvious example, it is traditional in Sociology to deride the way Economists work, depending as they do on an extremely pared-down model of human action. There is no less nuanced a character than Homo Economicus. While it is easy to snipe at theory on this basis, the strategy of assuming a can opener (as the old desert-island joke goes) turns out to be an unreasonably effective way of generating some powerful ideas.
But, of course, the best part of the paper is the abstract, which reads in its entirety: “Abstract: Seriously, fuck it.”
Clearly, the law professoriate needs to borrow from sociology its brevity and humor, if not its nuance.
My understanding is that the paper was a big hit at the 2015 American Sociological Association Meetings.
Professor Sharona Hoffman (CWRU Law) recently published a book on preparing for aging (Aging with a Plan, 2015) and I had the opportunity to interview her about her impetus for writing the book and how she tackled the writing process, bearing in mind that she wanted to make the book accessible to both lawyers and non-lawyers.
Here's what she had to say ...
Q: Preparing for aging is an unusual topic for a book. What led you to write about it?
A: The book grew out of a very difficult period in my life. During 18 months in 2013 and 2014 both my parents died, my mother-in-law died, and in October of 2013, my husband, Andy, was diagnosed with Parkinson’s disease at the age of 55. As I went through these experiences, I learned a lot about the legal, social, financial, medical and other challenges of growing older, getting sick, and facing the end of life. As a Professor of Law and Bioethics, I already knew something about theories and doctrine related to many of these issues, but there is nothing like life experience to enliven your knowledge and imprint lessons on your mind.
I realized that I had a lot of knowledge to share, and I wanted to take my professional and personal experiences and put them to good use helping others. Writing this book seemed like a natural choice.
Q: Who is your intended audience? How accessible is the book for folks without a legal background?
A: The book is designed first and foremost for baby boomers, people in middle age who should be thinking ahead and planning for taking care of elderly loved ones and for their own aging. As I have learned the hard way, when you are in the midst of crisis, it is very difficult to make good decisions if you know nothing about the problems you are facing.
I believe the book is quite accessible to people without a legal background. I use an interdisciplinary approach that draws on my background in law and bioethics. However, I combine thorough scholarly research and analysis with a wealth of personal anecdotes to make the book engaging and a fairly easy read. I also provide a preparedness checklist at the end of each chapter that summarizes take-away messages and outlines practical next steps for readers.
Amidst our current national discussion about how quickly the media and politicians label one group (Muslims) terrorists but bend over backwards to avoid using the term for other groups (most particularly, white men), a particular group of homegrown terrorists have been largely overlooked - anti-abortion terrorists.
This group of extremists have killed eight abortion providers since 1993, have bombed and set fire to clinics, have stalked doctors, nurses, administrators, and their families, have picketed at providers' homes and their kids' schools, have sent death threats, and engaged in a litany of other activity to terrorize abortion providers. These actions are not a historical remnant of the days when Operation Rescue was at its height; rather, these actions continue and are a regular part of the lives of many abortion providers around the country.
The stories of how these actions impact abortion providers and what, if anything, law can do about it form the basis for my newly released co-authored book - Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism (Oxford University Press 2015). In the book, Krysten Connon and I tell the stories of abortion providers in the United States as they struggle to live through being targets of anti-abortion terrorists.
Thank you to Dan for asking me to blog about the book in a series of posts. I'll use this post to introduce the basics of the book and will use several others to highlight different aspects of the writing/publishing process for the book that should be (I hope!) of interest to other academics.
The basic idea behind the book is that many people know about the general debate around abortion and that this leads to anti-abortion folks gathering at abortion clinics to protest the clinic and try to get women entering to reconsider their decision (this is intentionally a very neutral description of what happens outside clinics). But, what many people do not know about is the ways in which abortion providers are individually targeted, separate from clinic-based protest, because of their association with abortion.
This kind of individualized targeting is the subject of the book. The book tells tells the stories of the people who suffer from being targeted, analyzes the ways in which they are targeted, describes how this kind of targeting impacts their lives, and looks at how law and law enforcement can do better in preventing and responding to this kind of harassment. The book concludes by explaining why abortion providers continue in this line of work despite being individually harassed, targeted, threatened, and terrorized.
Given what many abortion providers put up with as the targets of anti-abortion terrorists, it is amazing that we have abortion providers in this country at all. But we do, and as our book uncovers, we do because of the inspiring dedication and compassion of those in the field of abortion care.
If you want more than this short introduction, you can read some reviews of the book from The New Republic, Ms. Magazine, RH Reality Check, Truth-Out, and The New York Journal of Books; interviews with me and my co-author at Salon, Rolling Stone, or Cosmopolitan; or excerpts at Salon, Women's eNews, or Alternet.
In the coming days, I won't be writing much more about the substance of the book (at least, not directly) but instead will be posting about the process of writing, researching, publishing, and promoting the book. In particular, I'll be posting about how this book came about as a mix of service, teaching, and scholarship; the process of tackling qualitative empirical research methodology for a newbie; how this research opened up a whole new world to me of academics mixing with practitioners in a productive way; what I've learned about promoting my work; and maybe a few other things as well. I hope you'll find it interesting.
Here are a few clarifications and further thoughts arising out of my co-written Sunday NYT op-ed based on my forthcoming law review article (here, I speak only for myself, and not for my op-ed co-author).
First, as is usually the case with op-eds, we didn’t write, or even have any advance notice of, the headline. It’s easy to see why the Times chose it, as it’s clickbaity, but “Corporations, Please, Experiment On Us. You don’t even need our consent” is not very reflective of the nuances of our position. Now on to some of those nuances.
A Clarification About the Op-Ed’s Position on IRB Review and Debriefing
On Twitter, James Grimmelmann worries that New York Times readers will interpret one part of the op-ed, as he did, to be making a problematic claim. In the piece, we ask readers to imagine a hypothetical CEO who worries that some of her employees aren't taking optimal advantage of the company's generous 401(k) matching program. She has a hunch that adding to the usual matching letter information telling each employee what his or her similarly-aged peers are saving would nudge the low-savers to save more. We explain that the CEO could implement this peer information letter policy in the next enrollment cycle and observe the result, but that, regardless of whether savings went up or down, she'd never really know what effect, if any, the policy had without running a randomized, controlled experiment in which half the employees receive letters with no peer information and half receive letters with peer information. We also explain that telling employees in advance about that the company would be sending out different letters and why would badly bias the results by altering employees’ behavior. We then explain that our hypothetical CEO isn’t so hypothetical:
Economists do help corporations run such experiments, but many managers chafe at debriefing their employees afterward, fearing that they will be outraged that they were experimented on without their consent. A company’s unwillingness to debrief, in turn, can be a deal-breaker for the ethics boards that authorize research. So those C.E.O.s do what powerful people usually do: Pick the policy that their intuition tells them will work best, and apply it to everyone.
It is this paragraph that has James worried:
Your argument appears to run: (1) people will be outraged about being experimented on if they're debriefed; (2) managers "chafe" at de-briefing because of the outrage, (3) IRBs would require debriefing; so (4) it’s reasonable for companies not to go through IRBs at all [and to conduct the nonconsensual A/B test of 401(k) letters with no debriefing afterward].
(The above is three tweets strung together but otherwise verbatim; the bits in brackets are my words, but I think they fairly reflect James’s other tweets and the logic of his argument. I trust he’ll tell me if I’m wrong.)
To be clear: No, this is not the position we intended to take in the op-ed. I thank James for bringing this possible misreading to my attention so that I can correct it here, at least. More after the jump.
I have an op-ed with Christopher Chabris that will appear in this Sunday's New York Times on one theme in my recent law review article on corporate experimentation. Despite the rather provocative headline that the Times gave it, our basic argument, made as clearly as we could in 800 words, is this: sometimes, it is more ethical to conduct a nonconsensual A/B experiment than to simply go with one's intuition and impose A on everyone. Our contrary tendency to see experiments—but not untested innovations foisted on us by powerful people—as involving risk, uncertainty, and power asymmetries is what I call the A/B illusion in my article. Here is how the op-ed begins:
Can it ever be ethical for companies or governments to experiment on their employees, customers or citizens without their consent?
The conventional answer — of course not! — animated public outrage last year after Facebook published a study in which it manipulated how much emotional content more than half a million of its users saw. Similar indignation followed the revelation by the dating site OkCupid that, as an experiment, it briefly told some pairs of users that they were good matches when its algorithm had predicted otherwise.
But this outrage is misguided. Indeed, we believe that it is based on a kind of moral illusion.
In a little noticed decision issued a couple of months ago, the First Circuit reinstated a bisexual plaintiff’s employment discrimination claims under the Maine Human Rights Act, reversing the district court’s dismissal on summary judgment. The decision is remarkable because, as I and Dr. Karen Yescavage discuss in our recent law review article, despite the fact that bisexuals experience significant levels of discrimination, they rarely sue. Even more concerning is the fact that, when they do sue, they almost never succeed. Indeed, the only employment discrimination case Dr. Yescavage and I found in which a bisexual plaintiff had ultimately succeeded on the merits was decided by a British court. To be sure, the First Circuit decision in Flood v. Bank of America Corp., 780 F.3d 1 (1st Cir. 2015), is not a final victory for Shelly Flood. Instead, it only means that she may present her evidence to a jury, but, given the dearth of case law involving bisexual plaintiffs, it is highly significant.
The evidence supporting Shelly Flood’s termination and harassment claims (both rooted in allegations of sexual orientation discrimination) appears fairly strong. Ms. Flood presented evidence to the effect that one of her supervisors (who was also her assigned mentor) began to treat her drastically differently upon learning that Ms. Flood was having a romantic relationship with a woman and that this supervisor enlisted other bank administrators to engage in similar treatment. The negative treatment Ms. Flood describes includes suddenly receiving poor performance evaluations, being subjected to retroactive changes in evaluations, and receiving “cold stares . . . and disparaging comments about [her] eating habits, dress, and hair style.” 780 F.3d at 13. According to Ms. Flood, this negative treatment eventually reached such an egregious level that she could no longer bring herself to go into work.
The First Circuit held that the district court had wrongly dismissed the discharge claim because it erroneously interpreted the claim as one of constructive discharge (rather than actual discharge) and that it had wrongly dismissed the harassment claim based on its mistaken conclusion that the harassment was not severe or pervasive. In response to the Bank’s argument that Ms. Flood’s claim failed as a matter of law because she was “not exposed to explicitly homophobic statements or derogatory remarks,” the First Circuit noted that many employers now “know better than to spew explicitly . . . homophobic remarks . . .” and that “the absence of such blatant vitriol does not doom a claim of discrimination.” Id. at 10-11.
All in all, the First Circuit’s analysis is well-reasoned and the result, especially with respect to the harassment claim, may seem unsurprising. But, as a precedent for bisexual plaintiffs bringing sexual orientation employment discrimination claims under state laws (which tend to be similar in structure to federal law), this case is huge news. To be sure, the case involved a fairly straightforward type of discrimination—homophobia. As Dr. Yescavage and I discuss, bisexuals appear to be subject to two primary forms of discrimination: homophobia and biphobia, the latter of which involves fear and discomfort specifically related to bisexuality. Biphobia may be particularly hard for courts to understand, as the limited case law suggests. See, e.g., Apilado v. North Am. Gay Ameteur Athletic Alliance, 2011 WL 5563206, at *1–3 (W.D. Wash. Nov. 10, 2011). However, the significance of Flood should not be underestimated. For now, it stands as the strongest precedent available for bisexual victims of employment discrimination in the United States.
I have a new law review article out, Two Cheers for Corporate Experimentation: The A/B Illusion and the Virtues of Data-Driven Innovation, arising out of last year's terrific Silicon Flatirons annual tech/privacy conference at Colorado Law, the theme of which was "When Companies Study Their Customers."
This article builds on, but goes well beyond, my prior work on the Facebook experiment in Wired (mostly a wonky regulatory explainer of the Common Rule and OHRP engagement guidance as applied to the Facebook-Cornell experiment, albeit with hints of things to come in later work) and Nature (a brief mostly-defense of the ethics of the experiment co-authored with 5 ethicists and signed by an additional 28, which was necessarily limited in breadth and depth by both space constraints and the need to achieve overlapping consensus).
Although I once again turn to the Facebook experiment as a case study (and also to new discussions of the OkCupid matching algorithm experiment and of 401(k) experiments), the new article aims at answering a much broader question than whether any particular experiment was legal or ethical. Here is how the abstract begins:
“Practitioners”—whether business managers, lawmakers, clinicians, or other actors—are constantly innovating, in the broad sense of introducing new products, services, policies, or practices. In some cases (e.g., new drugs and medical devices), we’ve decided that the risks of such innovations require that they be carefully introduced into small populations, and their safety and efficacy measured, before they’re introduced into the general population. But for the vast majority of innovations, ex ante regulation requiring evidence of safety and efficacy neither does—nor feasibly could—exist. In these cases, how should practitioners responsibly innovate?
My short answer to this question is that responsible innovators should inculcate a culture of continuous testing of their products, services, policies, and practices, and that it is a kind of moral-cognitive mistake (which I dub the "A/B illusion") for the rest of us to respond to these laudable (and sometimes morally obligatory) experimental efforts by viewing it as more morally suspicious for innovators to randomize users to one of two (or more) conditions than to simply roll out one of those conditions, untested, for everybody. The long answer, of course, is in the article. (The full abstract, incidentally, explains the relevance of the image that accompanies this post.)
Thanks to Paul Ohm and conference co-sponsor Ryan Calo for inviting me to participate, to the editors of the Colorado Technology Law Journal, and to James Grimmelmann for being a worthy interlocutor over the past almost-year and for generously unfailingly tweeting my work on Facebook despite our sometimes divergent perspectives. James's contribution to the symposium issue is here; I don't know how many other conference participants chose to write, but issue 13.2 will appear fully online here at some point.
If you would rather hear, than read, me drone on about the Facebook and OkCupid experiments (and some other recent digital research, including Apple's ResearchKit and the University of Michigan's Facebook app-based GWAS, "Genes for Good," as well as learning healthcare systems and the future of human subjects research) you may do so by listening to episode 9 of Nic Terry's and Frank Pasquale terrific new weekly podcast, This Week in Health Law.
When I wrote my most recent post in this series, I thought its subjects—“what [law-graduate] employment and earnings data ought generally to be presented, and whether the way such data are generally understood makes their presentation subject to misinterpretation”—were settled, and peripheral to the broader topic of the series. (Those keeping score at home will recall that the broader topic of the series is the importance and limitations of Mike Simkovic’s and Frank McIntyre’s recent scholarship on the value and purpose of legal education. The first post is here; the second and more recent one is here.) Unfortunately and surprisingly, my previous post has proved much more contentious than I anticipated, spawning dozens of Comments here and at least two posts on other blogs (Mike Simkovic on the Leiter blog here, and Brian Galle on Prawfsblawg here).
As is so often the case, the contention seems to spring from a few basic but important confusions. Actual common ground having proved too scarce to hope for, in the interest of mutual comprehension I attempt here to untangle the skeins that the combatants seem to be throwing past one another. I hope to clarify where and how we disagree, and why I hold the views I do. If you agree with me, that’s nice too. If you disagree, I invite you to explain clearly how and why.
Advance warning: This post is a bit longer than usual (around 2,800 words). The public discourse on these issues is so mixed up that it takes some doing to untangle it. I beg your indulgence, and thank those who make it to the end for their dedication and patience. The heavy lifting begins after the jump.
There has been a flareup in the debate over the purpose and value of law school. The new discussion has been prompted by a series of posts by Michael Simkovic on Brian Leiter’s Law School Reports in which he summarizes and elaborates on his work with Frank McIntyre in two recent articles, “The Economic Value of a Law Degree” and “Timing Law School.” (You can get Mike’s complete set of posts—there are, by my count, 14—on Leiter’s blog by starting here (posted March 19) and scrolling up. Paul Caron has collected links to commentary on the commentary from both sides of the debate here, not all of which are subject to the objection I register below.)
Full disclosure at the outset: Mike Simkovic visited with us here at UNC last term, where he proved himself an excellent teacher and an engaging colleague. I consider him a friend. Of course, I don’t always agree with my friends on everything (maybe that’s why I have so few), and as you’ll see I don’t agree with Mike about everything he’s written. (Editorial Aside: I recognize that there may be no intrinsic reason why anyone should care whether I agree with Mike or not. But since you’re reading this, I’ll indulge the fantasy that you’re a little bit curious, if not about whether then at least about why.) All that said, anyone with any intellectual honesty must appreciate the importance of Mike Simkovic’s recent contributions to the ongoing public discussion on the purpose and value of legal education. His work (and let’s just agree that from here on “he” stands for both Mike and his co-author) is by my lights the first serious, empirically grounded, methodologically thoughtful showing that things—at least some things for at least some people—may not be quite as bad as some of us have feared.
Predictably, extremists on both sides of this longstanding debate have popped up to demonize or deify Prof. Simkovic and his work, vilifying or vaunting his motives and methods in sweeping and categorical terms. I have only one request of all of you—please stop. Stop the toxic name-calling. Stop erecting effigies of your adversaries’ graves so you can dance on them. The subject is much too important to be obscured in petty rivalries. You’re not enlightening anyone, and it’s way too early to claim a victory lap, let alone drag your enemy in circles at the back of your chariot for the next nine days. (I, at least, perceive Mike as having managed to hold himself mostly above the fray thus far, with only an occasional descent into the snippy or snide when goaded a bit too much. But that happens to all of us now and then—not least, I regret to say, your not altogether gentle scribe. I hope we’ll both try harder from here on out.)
In order to keep length manageable, I propose to share several posts over the next couple of weeks with some thoughts on Mike Simkovic’s important contributions. I’ll try to point out some of the questions I think his work addresses, and the questions we still need to explore. Like it or not, this kind of discussion tends to crowd out those prone to announcing that each new datum proves them right about everything all over again.
I’ll conclude this post and set the table for future ones by summarizing Mike’s principal conclusions in broad strokes. “The Economic Value of a Law Degree” uses some accepted techniques of labor econometrics and a federal government dataset to compare the earnings differential over an entire career of people who get a law degree compared with people who end their higher education with a bachelor’s degree. The paper concludes that, whether or not the JDs work as lawyers (and taking into account the costs of law school), a significant majority of them earn appreciably more over their careers than the BAs do. “Timing Law School” builds on these conclusions, and determines that it is not possible to predict a better or worse time to attend law school in order to maximize your lifetime earnings. That is in part because, the study finds, while those who graduate law school into a bad economy suffer some early hits to their earnings and their earnings advantages over BAs, and those who graduate law school into a booming economy enjoy some corresponding early advantages, these differences tend to moderate and then disappear over the longer run of a full career—again, whether or not the JD practices law. (It’s also because it proves to be just as hard to time the labor market as it is to time the stock market; that is, to the extent starting your law career in a better or worse economy affects your overall lifetime earnings, there’s no point in trying to take advantage of it, because you can’t reliably predict at the time you apply to law school what the economy is going to be like when you’re done.)
Again, I take issue with these conclusions in some respects regarding (among other things) their breadth and predictive value for reasons I hope to explain in coming posts. But now you have the big picture.
This just in:
The Penn State Law Review is conducting an exclusive spring-cycle article review. Any article submitted to this exclusive review between now and April 19th will be evaluated by April 27th. If you have submitted an article to the Penn State Law Review previously, you must resubmit your article for consideration in the exclusive article review.
By submitting your article, you agree to accept an offer for publication, should one be extended. Any articles accepted will be published in Volume 120: Issue 1 or Issue 2 of this review—both of which are slated for publication in summer of 2015.
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There's been tremendous public outrage lately over the process of criminal justice and its failure to prevent needless deaths. As illustrated by the recent outcries over the shooting deaths of Walter Scott, Michael Brown, Eric Garner, and Tamir Rice, the public has a growing desire to have their voices heard in matters of local criminal justice.
Today, society, media, and politicians pay close attention to the latest high-profile crime, but the general public usually finds itself at a great remove, watching the system from the sidelines. This is highly frustrating to the average citizen, especially when they want to see wrongdoers go through a public adversarial process.
The public’s growing concerns about the secrecy and the lack of public accountability inherent in our current criminal justice system point to a need for more transparency and a better way to include the local community into adjudications of criminal justice.
In my new book, Defending the Jury: Crime, Community, and the Constitution (Cambridge UP: 2015), I try to provide solutions to some of these problems by focusing on ways to insert the local community back into criminal justice, whether formally or informally. I argue that the people's right to participate in the criminal justice system through the criminal jury - a right that is all too often overlooked - is essential to truly legitimizing the criminal process and ensuring its democratic nature.
Leon Nefakh , who writes about criminal justice at Slate, just reviewed the book here, giving one of its major ideas--inserting a plea jury into the plea bargain process--careful, if somewhat skeptical, consideration.
Ultimately, our system of hidden criminal adjudication is one where decisions concerning life and liberty are made far from the public sphere and the public eye. This book is my attempt to solve some of these seemingly intractable problems. And at only $29.95 a copy ($16 on Kindle), it's a bargain!
An article in my SSRN feed caught my eye this week: Where Have All the Patent Lawyers Gone? Long Time Passing... by Kenneth L. Port, Lucas Hjelle, and Molly Rose Litman (William Mitchell; Schwegman, Lundberg and Woessner; William Mitchell student).
The paper makes a pretty bold assertion - that the number of new patent lawyers is going to drop by 50% in the next three years. This is not necessarily surprising - after all, new law student enrollments are dropping. But not by 50%. Further, their prediction is not just conjecture or fancy econometrics - they look at the number of LSAT takers qualified to take the patent bar, and find that only 600 in the whole country were so qualified this year. Given that about 80% of qualified law students actually enter the patent bar, the numbers are looking to be south of 500 in 2018. By comparison, the number hovered between 800 and 1200 between 2003 and 2014. So that's that. Then why is this a curious case?
Touro School of Law has just published the inaugural issue of the Journal of Experiential Learning. Dean Martin Katz' article "Understanding the Costs of Experiential Learning" may be of particular interest to readers here. I suspect a lot of the articles will be of interest.
In a comment to one of my prior posts, Barry pointed out that backlash may not be the right way to see the immediate period after Roe v. Wade, since there is some evidence that the Religious Right did not develop a firm anti-abortion position until several years later. This is a really good point, and serves as a nice lead-in to this entry, which highlights the excellent work on this topic being done by Mary Ziegler (one of the presenters at the Legal History panel at AALS).
In particular, through extensive oral interviews and archival research, Mary has unearthed an intriguing and complicating counter-narrative to the commonly held view that Roe itself polarized political and social dialogue over abortion and abruptly halted political compromises and outcomes. To the contrary, Mary’s work shows that after Roe, advocates on both sides of the abortion issue initially sought compromise positions: some moderate pro-life advocates explored pro-feminist supports for a range of reproductive choices for women, and some members of the pro-choice movement explored positions and policies that recognized some level of fetal rights.
While Mary acknowledges that Roe affected the debates and positions, she rejects the idea that it played the dominant role attributed to it by many, including both Justices Ginsburg and Scalia. Mary concentrates on the political shifts that were taking place simultaneously, in particular the rise of the New Right and its alliance in the late-70s with the emerging Religious Right. Her work shows how the political dynamics shaping and reforming the Republican and Democratic Parties overwhelmed the other possible alliances and initiatives surrounding reproductive policies and women’s rights.
I am really looking forward to reading Mary’s book, After Roe: The Lost History of the Abortion Debate, which will be available from Harvard University Press this coming May. For those of you who can’t wait that long, Mary’s recent article, Beyond Backlash: Legal History, Polarization, and Roe v. Wade, 71 Wash. & Lee L. Rev. 969, covers some aspects of this study and is also well worth a read (as are other articles from that volume, a 40th Anniversary symposium about Roe.) Unfortunately that volume is right now only available through Hein, Lexis, or Westlaw, so I cannot link you there. You can get it at W&L's Scholarly Commons. (h/t to cm for this)