The Faculty Lounge

Science, Art, Policy, and the Importance of Good Science Communication

Recently, several media outlets, including NPR, the New York Times, and Big Think, have covered the story of Ph.D. student in Electronic Arts Heather Dewey-Hagborg, who makes 3-D "masks," or "portraits," of the faces of unknown individuals using the DNA they unwittingly discard on such things as cigarette butts and chewing gum. The media coverage has conjured an Orwellian dystopia for readers (check out the first few comments on the NPR piece for a sample). The artist herself apparently shares these concerns. In addition to her upcoming exihibit, Stranger Visions, she will be leading policy discussions on the implications of her art. She's also working with the Delaware medical examiner's office to try to identify the remains of a 20-year-old body.

The problem? As I commented over at Bill of Health, based on what she's said about her methods, they do not allow her to predict someone's face with anything but the crudest of guesses.

Matthew Herper of Forbes took my criticisms and those of others directly to the artist. I confess that her response does not make me feel any better. Even if you're "only" engaging in art, it seems to me that when that art has an obvious science policy message — indeed, one that you invite — you have some obligation to be clear about how "speculative," as she puts it, your art is. But when you decide to move from the world of art into the world of science, and to start leading policy discussions based on your speculative art and working with forensic examiners? Then you really have a strong duty to be very clear about what your work does and does not mean. Among other things, you should take care when talking to the media, and correct the media if they get it wrong. (This is, of course, a lesson that applies to all scholars, including legal scholars, not only to scientists.)

Yesterday, the Social Science Genetic Association Consortium, an international consortium that pools and conducts social science research on existing genome-wide association study (GWAS) data, and on whose Advisory Board I sit, published (online ahead of print) the results of its first study in Science. That paper — "GWAS of 126,559 Individuals Identifies Genetic Variants Associated with Educational Attainment" (plus supplemental data) — like much human genetics research, has the potential to be misinterpreted in the lay, policy, and even science worlds. That's why, in addition to taking care to accurately describe the results in the paper itself, including announcing the small effect sizes of the replicated SNPs in the abstract, being willing to talk to the media (many scientists are not), and engaging in increasingly important "post-publication peer review" conversations on Twitter (yes, really) and elsewhere — we put together this FAQ of what the study does — and, just as important, does not — show. So far, our efforts have been rewarded with responsible journalism that helps keep the study's limits in the foreground. Perhaps Dewey-Hagborg should consider issuing a similar FAQ with her speculative art.

[Adapted from a post and comments at Bill of Health]

Michael Satz Named Interim Dean Of Idaho Law

The University of Idaho has named associate dean Michael Satz as its interim dean of the law school.  Satz, who holds a JD from the University of Michigan, joined the Idaho faculty in 2006.

Marc Miller Named Dean Of Arizona Law

University of Arizona law school interim dean Marc Miller has been named the law school's permanent dean.  Miller, who came to Arizona in 2006 after seventeen years on the Emory Law faculty, holds his JD from the University of Chicago.

Murphy Prize in the History of Civil Liberties

The American Society for Legal History announces the Paul Murphy Award to support the completion of a book on the history of civil liberties that addresses any topic or any time in American history. This is a two-year award only, and this is the second and final year award will be given. Recipients will receive $5000 to support their work. Nominees at all levels of seniority will be considered, however the award is not for the completion of a dissertation.  The 2012 Murphy Award is announced here.

An Open Letter From a Genomic Altruist to a Genomic Extrovert

This post is part of Bill of Health's symposium on the Law, Ethics, and Science of Re-Identification Demonstrations. You can call up all of the symposium contributions here. We’ll continue to post contributions throughout the week. 

Dear Misha:

In your open letter to me, you write:

No one is asking you to be silent, blasé or happy about being cloned (your clone, however, tells me she is “totally psyched”).

First things first: I have an ever-growing list of things I wish I had done differently in life, so let me know when my clone has learned how to read, and I’ll send it on over; perhaps her path in life will be sufficiently similar to mine that she’ll benefit from at least a few items on the list.

Moving on to substance, here's the thing: some people did say that PGP participants have no right to complain about being re-identified (and, by logical extension, about any of the other risks we assumed, including the risk of being cloned). It was my intention, in that post, to articulate and respond to three arguments that I’ve encountered, each of which suggests that re-identification demonstrations raise few or no ethical issues, at least in certain cases. To review, those arguments are:

1. Participants who are warned by data holders of the risk of re-identification thereby consent to be re-identified by third parties.
2. Participants who agree to provide data in an open access format for anyone to do with it whatever they like thereby gave blanket consent that necessarily included consent to using their data (combined with other data) to re-identify them.
3. Re-identification is benign in the hands of scholars, as opposed to commercial or criminal actors.

I feel confident in rejecting the first and third arguments. (As you’ll see from the comments I left on your post, however, I struggled, and continue to struggle, with how to respond to the second argument; Madeleine also has some great thoughts.) Note, however, two things. First, none of my responses to these arguments was meant to suggest that I or anyone else had been “sold a bill of goods” by the PGP. I’m sorry that I must have written my post in such a way that it leant itself to that interpretation. All I intended to say was that, in acknowledging the PGP’s warning that re-identification by third parties is possible, participants did not give third parties permission to re-identify them. I was addressing the relationship between re-identification researchers and data providers more than that between data providers and data holders.

Second, even as to re-identification researchers, it doesn’t follow from my rejection of these three arguments that re-identification demonstrations are necessarily unethical, even when conducted without participant consent. Exploring that question is the aim, in part, of my next post. What I tried to do in the first post was clear some brush and push back against the idea that under the PGP model — a model that I think we both would like to see expand — participants have given permission to be re-identified, “end of [ethical] story.”

Caroline Janney on Civil War reunion and reconciliation

Caroline Janney's just published book, Remembering the Civil War, poses a major challenge to how we understand the process of  reunification after the Civil War.  Recall that David Blight argued in Race and Reunion that the process of reunion subordinated African Americans' rights to a narrative that the war was a mistake, that slavery was wrong, but that the war had been fought over states rights.  Blight opened up the idea that reunion included subordinating African Americans.  (This, of course, had been a theme in African American literature for decades.  Ralph Ellison wrote about this in "Going to the Territory," his 1979 address at Brown about the significance of race and memory.)

Now Janney comes forward with what is in some ways a finer grained picture; she separates out the responses of the North as interest in reunion and the south as interest in reconicilation.  There are obviously going to be situations of unreconstructed southerners -- such as monuments that talk about fighting for eternal principles -- and cases where Northerners were giving away a lot in the way of reconciliation.

But I think one way to reconcile Blight and Janney is by focusing on each's perspective.  Blight is taking the temperature of the entire nation; Janney is often more more closely focused on the participants and their family members.

Dean Search Announcement: Montana

From an email that I received earlier today:

The University of Montana invites applications and nominations for a Dean to lead its School of Law as it begins the second century of its distinguished history. Founded in 1912, the School of Law is an established leader in legal education, preparing students for serving people in the practice of law through effective integration of theory and practice. Beyond preparing students for practice, our curriculum emphasizes areas of law significant to the Rocky Mountain West including natural resource law, environmental law, and Indian law. At a challenging time for legal education, the success of Montana’s model in training and placing lawyers has earned it recognition as one of the best-value law schools in the nation. Montana is one of a handful of law schools to attract significantly more applicants this year than last. 
 
The successful candidate must hold a Juris Doctor degree, or its equivalent, from an ABA-accredited law school, demonstrate the ability to lead the School of Law’s faculty, staff, and students, and have the following additional qualifications:

- Distinguished professional achievement in legal practice;

- Successful administrative experience, including personnel supervision and financial administration;

- Strong listening, communication, and consensus-building skills;

- A commitment to legal scholarship; and

- A commitment to diversity.
 
TO APPLY: Visit http://umjobs.silkroad.com/ to view full description and apply online. Candidates will be asked to upload: a statement of interest; a current resume or C.V.; and contact information for at least three professional references.   Review of applications will begin on August 1, 2013; application review will continue until the position is filled. 
 
ADA/EOE/AA/Veteran's Preference Employer

Stewart Schwab Stepping Down From Cornell Law Deanship

Cornell Law Dean Stewart Schwab has announced that he will be stepping down as of June 2014.  Schwab assumed the deanship in 2004 and has been on Cornell's faculty since 1983.  

The Amelia County Mortar

On a recent trip I went out to Amelia County Courthouse.  I wanted a picture of the Confederate monument there.  (The courthouse was built in 1924, so it's too recent to be of serious interest to me for photography.)

But that led to a more interesting question, "What is that Confederate mortar doing on the lawn of the Amelia County Courthouse?"  Long-time readers of the facutly lounge will recall that I'm interested in the use of ordnance as a monument to war, mostly of how weapons we captured are monuments to our success.  Lunenburg County, Virginia, has a German cannon on its courthouse lawn, too. (There are two cannon at the statehouse in Raleigh that were, as I understand it, donated by the US Navy to the state of North Carolina.  They were used in the defense of the North Carolina coast and then captured by the US Navy and donated by the War Department in 1902 -- and they're now part of the Confederate Soldiers and Sailors Monument in Raleigh.  There's probably an interesting story about this as a part of the reconciliation around the turn of the twentieth century.)  

The Amelia County mortar is, perhaps, similar to the cannon on the North Carolina statehouse grounds.  It's mounted on a boulder and has a plaque that reads as follows:

Lamkin's Battery.  This mortar belonged to the battery commanded by Captain J.N. Lamkin.  On July 30, 1864, at the "Crater," the battery helped check the Union advance until Mahone came up.  Four mortars were captured near Flat Creek in Lee's retreat, April 2, 1865.  One of them blew up in saluting the remains of Jefferson Davis when brought through Amelia Court House.  Placed by the Amelia Chapter of the U.D.C.  1940.

When the plaque refers to captured I guess it means that the mortars were captured by the United States government. 

Well, I'm certainly no fan of monument removal.  At this point the mortar has been there so long that it's a part of the landscape; its value as history is more important than its value as a memorial to the era of slavery I suspect (though perhaps Stephen Clowney could convince me otherwise).  Nevertheless, I must admit that I find this more jarring than the usual monument.  And odder given that there is a very specific use associated with the weapon, that it was part of (or likely part of) the slaughter at The Crater.  What's not clear to me is how the mortar changed hands from that of the US government to the UDC or Amelia County (or even if it did).  And I suppose I have to say that I'm not wildly enthusiastic about weapons used against the United States being part of a monument on US soil -- particularly when they were donated by the US government.

Update: I have deleted a comment that had nothing to do with this post and now closed comments. 

Memorial Day and Captured Ordnance

I think you'll enjoy this Radio Times podcast of Richard Rubin's interview on his book The Last of the Doughboys.  And speaking of World War I -- and in honor of Memorial Day -- I have a picture of a monument on the lawn of the Lunenburg, Virginia, courthouse.  

Last winter I posted about a gun captured from Germany in World War I that now is on the courthouse lawn in Emporia in Greensville County Virginia.  So I was not as surprised as I might otherwise have been when I saw another World War I era cannon on the courthouse lawn in Lunenburg County.  In fact, I think Rich says in the interview that there are more monuments to World War I in this country than any other war -- that sort of surprises me.   But I guess the country was a heck of a lot bigger after World War I than the Civil War (and richer) and so there was more opportunity to put those up.  Also, there was not so much of a need for monuments to World War II -- our entire country was a monument to it.  Incidentally, for those who care about this sort of thing, you can see the Confederate statute in the background, to the right of the cannon.

The plaque on the front of the weapon details a little bit of its history:

This German cannon, captured by American forces in France, during World War I, 1917-1918, was presented by the U.S. government in 1928 to Lunenburg Post 102, The American Legion.  Moved from Victory [a nearby town] to Courthouse in 1968.

My next post in this series will be of a mortar captured by the US government during the Civil War and then given (or maybe it's put on loan, I'm not sure anyone cares at this point) to Amelia County.

CFP for Law, Peace, Violence, March 14, 2014

Yxta Maya Murray at Loyola Law School has passed along a call for papers for a conference on Law, Peace, and Violence: Jurisprudence and the Possibilities of Peace next March at Seattle University's law school.  Cribbing now a little from the call for papers:

Can the law help forge a more peaceful world? In this symposium, legal scholars will study law’s potential to increase domestic and inter-national peace. We will also focus on the problems that peace rhetoric creates for rights developments, particularly in the ways that it is used to marginalize outsiders’ direct action efforts.

Nonviolent resistance often rebels against the rule of law. Étienne de La Boétie described this conflict in 1553, noting the dissenter "can deliver [herself] if [she] tr[ies], not by taking action, but merely by willing to be free. . . . I do not ask that you place hands upon the tyrant to topple him over, but simply that you support him no longer." Similarly, in "Resistance to Civil Government" (1849), Henry David Thoreau maintained "I was not born to be forced. I will breathe after my own fashion. Let us see who is the strongest." On the other hand, Frantz Fanon suggested that colonized peo-ples have a right to use violence to resist oppression, and his work has inspired anti-colonial and anti-racist activists around the world, including in the Black liberation movement in the United States.

Where does the peacemaking lawyer exist in this politics?

This is a super-exciting question.  And long-time readers of the facutly lounge may recall that this is an issue of immense interest to me.  And reminds me that very soon I want to talk about the role of the lawyers for the enslaved defendants in the trials following the Nat Turner rebellion.  The brutality of the rebellion and its aftermath reminds me of just how damaging violence was.  The violence of slavery sparked the rebellion, which led to extraordinary repression.  And while some lawyers tried to constrain the violence in the aftermath -- and may have had some success -- there was blood everywhere.  There are a lot of examples in our nation's history of just how much violence begets more violence, as well as how difficult it is for the law to constrain or respond to violence.  In some instances in our history, it was law that licensed or even encouraged violence.

There is a more optimistic story to tell of the role of law in our nation's history, of course -- about the way that law has helped construct a world of order and justice.  Quakers, for instance, after they got done critiquing the injustice of law in the United Kingdom, set about trying to build a better world through law here in the Americas (and here).  One piece of that story that particularly interests me is how much law and judges lay at the center of Quaker thought in the 1650s and 1660s.  Their mistreatment by the legal system helped to shape their identity and their sense of how law should operate.  I think that's one under-explored area of both Quaker history and of seventeenth century law.  This is a big part of George Fox's Autobiography and later William Penn.  That's been written about some -- but this is also a big part of the lesser-known Quaker pamphlets of the era.  Hence I have a picture of the oak at the London Grove Quaker meeting, which is supposed to go back to the era of William Penn (and thus to the early 18th century).

Reflections of a Re-Identification Target, Part I: Some Information Doesn’t Want To Be Free

[This post is part of the online symposium I've organized over at Bill of Health on the Law, Ethics, and Science of Re-Identification Demonstrations. Background on the symposium is here, and you can call up all of the symposium contributions here. We'll have more contributions into next week.]

I wear several hats for purposes of this symposium, in addition to organizer. First, I’m trained as a lawyer and an ethicist, and one of my areas of scholarly focus is research regulation and ethics, so I see re-identification demonstrations through that lens. Second, as a member of the advisory board of the Social Science Genetics Association Consortium (SSGAC), I advise data holders about ethical and regulatory aspects of their research, including issues of re-identification. I may have occasion to reflect on this role later in the symposium. For now, however, I want to put on my third hat: that of data provider to (a.k.a. research participant in) the Personal Genome Project (PGP), the most recent target of a pair of re-identification “attacks,” as even re-identification researchers themselves seem to call them.

In this first post, I’ll briefly discuss my experience as a target of a re-identification attack. In my discussions elsewhere about the PGP demonstrations, some have suggested that re-identification requires little or no ethical justification where (1) participants have been warned about the risk of re-identification; (2) participants have given blanket consent to all research uses of the data they make publicly available; and/or (3) the re-identification researchers are scholars rather than commercial or criminal actors.

In explaining below why I think each of these arguments is mistaken, I focus on the PGP re-identification demonstrations. I choose the PGP demonstrations not to single them out, but rather for several other reasons. First, the PGP attacks are the case studies with which, for obvious reasons, I’m most familiar, and I’m fortunate to have convinced so many other stakeholders involved in those demonstrations to participate in the symposium and help me fill out the picture with their perspectives. I also focus on the PGP because some view it as an “easy” case for re-identification work, given the features I just described. Therefore, if nonconsensual re-identification attacks on PGP participants are ethically problematic, then much other nonconsensual re-identification work is likely to be as well. Finally, although today the PGP may be somewhat unusual in being so frank with participants about the risk of re-identification and in engaging in such open access data sharing, both of these features, and especially the first, shouldn’t be unusual in research. To the extent that we move towards greater frankness about re-identification risk and broader data sharing, trying to achieve clarity about what these features of a research project do — and do not — mean for the appropriateness of re-identification demonstrations will be important.

Having argued here about how not to think about the ethics of re-identification studies, in a later post, I plan to provide some affirmative thoughts about an ethical framework for how we should think about this work.

Is The Moment Ripe? Notable Increase In Law School Applications

The newest LSAC volume summary is out and there is good news for those working in law school admissions offices: applications are up.  Of course, they're not actually up compared to last year.  Total numbers are still down, and dramatically.  But they're down by a lower margin that they were a few weeks ago.  Back on January 10, we reported that applicants were down 22.1% compared to last year.  Based on that number, LSAC was projecting something around 52,000 total applicants this year.  Four months later, and the news is a bit different.  Now, as of the May 17, 2013 report, the total number of applicants is down 13.4% and the projected total number of applicants is looking like it'll be around 58,700.  That's a big dip from the 68,000 last year...but a dip of 10,000 is signficantly different than a dip of 16,500.

I am certain that many deans and admssions directors are asking if we've hit a bottom.  I think it is far, far too early to tell.  But I also think that the intensity of negative coverage may be triggering a burst of applications among those who realize that there may never be a better year to apply to law school, from the point of view of maximizing the power of one's given LSAT score as well as minimizing actual tuition costs.

Because let's face it: people willing to attend law school in select cities (such as, for example, Philadelphia) can get quite a bargain.  A student with a 159 LSAT and decent grades can choose among multiple Philadelphia law schools and pay very, very low tuition.  Prefer to pay full freight?  Given that the top schools seem likely to maintain class size even in the face of an overall credential drop, a 168 LSAT is likely to take you a long way this year.

That doesn't mean law school is the right choice for any particular person.  But for people who want to become lawyers no matter what, the math right now is starting to look awfully appealing.  Or at least that's what the numbers suggest.

 Update: I have closed comments as suggested by some commentators.  I trust that most of our readers were and are, like me, enjoying a holiday weekend.  I will reflect on this post, and its comments, over the next few days.  

Contract As Disclosure II (Or Why I Keep Signing That Same Stupid Liability Waiver)

The second half of my review of Peggy Radin’s new book on boilerplate has now been posted over at ContractsProf.  (Part I is here.)  In this second post, I use the example of the boilerplate at top right to analyze some of Peggy’s explanations for market failure in the case of boilerplate and dismiss most of them as inapplicable to this particular example, at least based on my own experiences over the years with these sorts of waivers and the people who sign them.  These are people who, in my experience, are more than capable of understanding the short and rather simple waivers at issue here, they do read the boilerplate and frequently discuss it with each other, and though they may underestimate some risks, they may overestimate others.  In short, these people are like me – in fact, they are me, and we sign these waivers year in and year out.  Why? 

As I explain over at ContractsProf, one possibility is that Peggy has correctly identified a case of market failure.  This is not because these consumers are intimidated by contracts or fail to read or understand them, but because the multi-factor evaluation in which consumers must engage to fully assess the price-product-contract package is a complex task of the type that most of us are not very good at.  But I am not sure that this concession bodes well for Peggy’s proposed solution. Because if this multi-factor evaluation is a complex task for consumers, it is a complex task for lawmakers as well. 

Which brings us to another possibility for why consumers such as me keep signing these onerous boilerplate contracts.  As I explain in the post:

If calculating the optimal trade-offs among price and the numerous other elements of the product/service + boilerplate adventure tour package is decisionally complex for experienced consumers of travel services, then it is difficult for courts and lawmakers as well.  Perhaps the legislature was right in crafting a default rule placing liability for negligence on the tour operator, in the hopes of creating incentives for such tour operators to exercise care before putting their clients at risk.  And perhaps consumers are mistaken in signing away those rights, thus “deleting” rights thoughtfully granted by the legislature.  Peggy places a high value on democratically-generated rules such as these, and demonstrates more faith in such democratic processes than in market ones. 

Perhaps she is right.  But, perhaps, the legislature simply got this one wrong. Perhaps consumers believe that there are cheaper and more effective mechanisms for differentiating trustworthy and careful adventure tour operators from untrustworthy and negligent ones.  Perhaps consumers have quite rationally concluded that firm reputation; their own repeated positive experiences with a particular operator; the prior impressions of friends, neighbors, and other experienced travelers; and third parties, such as travel insurance companies, all have helped them to choose a tour operator whose risk of negligent operation is – if not fully controllable – at least tolerable, given the price paid.

Read the whole thing here.  

Proliferation of Pre-JD Master’s Programs Casts Doubt on the Value of “JD Advantaged” Employment

Much in the news the last few days are reports of a growing number of law schools offering one-year full-time or two-year part-time pre-JD master’s degrees in law.  Apparently nearly 30 institutions offer or soon will offer a degree of this kind.  Coverage in the National Law Journal can be found here; Wall St. Journal (subscr. req’d) here; Above the Law here.  The degree is variously denominated a “Master in Legal Studies” (MLS), “Master of Studies in Law” (MSL), “Juris Master” (JM), “Master of Jurisprudence” (MJ) or “Master of Science in Legal Studies” (MS). 

So many acronyms.  Is this just another case of More Universities that Like to Collect Tuition (MULCT)?  Let’s look at the early evidence. 

The NLJ quotes the view of one senior faculty member at Indiana University at Indianapolis that “[t]his is about finding a different pool of potential students.”  While this is a refreshingly candid reflection on why the program might be good for law schools, particularly those with rapidly diminishing JD enrollments, it does raise certain questions about the degree’s utility for potential students.

On this question, the NLJ quotes Frank Wu, dean at UC Hastings, and in my own opinion one of the genuinely thoughtful, constructive and creative law-school administrators navigating these difficult times:

“Many lawyers work in human resources, but you don't have to have a J.D.  It’s the same thing with compliance officers in banks and hospitals. There are all these jobs in law — criminal justice jobs, law firm management jobs, consultants — where a J.D. makes no sense but some legal training is useful.”

Fair enough.  But wait a second.  Those familiar with the dreary tidings that the ABA and NALP employment outcome figures have borne in recent years know that these days law graduates’ reportable employment successes come in two principal categories—positions that require a law license; and “JD Advantage” positions that do not require a law license but for which the law degree provides “a demonstrable advantage in obtaining or performing the job.”  The ABA Section on Legal Education defines “JD Advantage” positions in part like this:

“A position in this category is one for which . . . the JD provided a demonstrable advantage in obtaining or performing the job, but itself does not require bar passage, an active law license, or involve practicing law.  Examples of positions for which a JD is an advantage include a corporate contracts administrator, alternative dispute resolution specialist, government regulatory analyst, FBI agent, and accountant.  Also included might be jobs in personnel or human resources, jobs with investment banks, jobs with consulting firms, jobs doing compliance work in business and industry, jobs in law firm professional development, and jobs in law school career services offices, admissions offices, or other law school administrative offices.  Doctors or nurses who plan to work in a litigation, insurance, or risk management setting, or as expert witnesses, would fall into this category, as would journalists and teachers (in a higher education setting) of law and law related topics.” 

These “JD Advantage” jobs  are counted (at least in part) as employment successes by US News in determining the employment component of its rankings, and are touted by various Panglosses (like this one) and Polyannas (e.g., the second comment to this post) in the legal academy as a consummation devoutly to be wished and an independently sufficient justification to seek a JD.  But the very positions offered to justify a one-year master’s “where a J.D. makes no sense”—“human resources,” “compliance officers,” ”criminal justice jobs,” “consultants”—are specifically enumerated examples of “JD Advantage” positions in the ABA definition.  Oops.

Of course, this doesn’t prove that there is no position not requiring a law license for which a JD provides advantages so irreplaceably substantial that it justifies three years’ time and tuition.  Undoubtedly some such positions exist.  But what it strongly suggests is that many of the jobs conventionally offered as examples of such positions really aren’t, and that overall there are vastly fewer genuinely JD-Advantaged positions than some law schools’ self-reporting or a sensible definition of the category might imply.  Put slightly differently, the broader the population for which a one-year master’s degree makes sense, the narrower the range of “JD Advantaged” positions for which pursuit of a JD provides any cost-justified advantage.  This also suggests that this novel marketing tactic may prove self-defeating, as the wider availability of one-year masters’ programs persuades larger numbers of potential JD seekers that there is a shorter, cheaper path to a range of law-related work.

Those of you who are kind enough to follow my posts on this site will recall my repeated insistence that What Matters Most right now is that there are substantially more seats in law schools than there are law jobs for graduates.  (E.g., here, here and here.)  How many of you seriously believe that the solution to this problem is to find more butts—that “[t]his is about finding a different pool of potential students”?

If you think that the solution to the legal academy’s excess supply is to develop “products” that can be “marketed” to a broader range of “consumers,” then the law-school scam brigade is right that you should be regarded, and treated, like a door-to-door encyclopedia salesman.  If, on the other hand, you view the master’s degree as an innovation designed to regulate the proportionality of the cost and extent of legal education to its utility in particular circumstances (and from his comments I would put Dean Wu in this camp), you may be on to the beginning of something interesting. 

--Bernie

Contract As Disclosure: My Review of Radin’s Boilerplate at ContractsProf Blog

Today, the first half of my review of Peggy Radin’s new book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law appears over at ContractsProf Blog.  A few days ago, I posted the above liability waiver as a preview for Lounge readers of my thoughts on the book (click on image to enlarge and zoom from there).  From today’s post at ContractsProf:

Peggy’s contention (to oversimplify, as is so frequently necessary in Blog World) is that we cannot infer from the widespread persistence of a particular boilerplate term that consumers have chosen it through their willingness to buy the product/service + boilerplate bundle at a given price.  Instead, we must treat it as a case of potential market failure.  So, what might lead to this market failure?  . . .

If you’ve taken almost any type of organized tour or active vacation and bothered to read the liability waiver that you were almost certainly asked to sign, then you’ve seen an agreement similar to the one I’ve included at right limiting the tour company’s liability for their negligence involving pretty much everything from a bad hotel room to your death from falling into an active volcano.  Such waivers are ubiquitous, varying only slightly in their particulars. 

And I have signed one every year for over a decade.  Why?  Well, the simple answer is that I have no choice, given that I want to participate in organized adventure travel and all tour companies have a similar waiver.  But that’s too easy.  The real question, as Peggy acknowledges, is why, if this is a term that consumers value, a competing adventure tour company has not arisen to offer a similar tour experience without the offending boilerplate language, potentially at higher cost? 

Read the whole thing here, and the second half will follow later today, as will responses from Peggy.  

Fan on Hu’s Biometric ID Cybersurveillance

 Mary Fan has a review over at Jotwell of Margaret Hu’s new article, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013).  Mary Fan is an Associate Professor of Law at the University of Washington who specializes in cross-border, U.S. and international criminal law and procedure.  Margaret is a Duke Visiting Assistant Professor, who will be joining the Washington & Lee faculty in the fall (we’ll miss you, Margaret!).  Her research interests include the intersection of immigration policy, national security, and civil rights, as well as critical legal studies. Margaret previously served as senior policy advisor for the White House Initiative on Asian Americans and Pacific Islanders, and also served as special policy counsel in the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U. S. Department of Justice, in Washington, D.C.  She also has fabulous shoes, though I suspect that’s less relevant to most Lounge readers than it is to me. 

From Fan’s review:

The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned.  She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.”  She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking.  For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software.

Read the whole thing over at Jotwell. 

Tom Geu Named Dean Of South Dakota Law

Professor Thomas Geu of the University of South Dakota School of Law has been named the school's new dean.  Geu holds a JD from the University of Nebraska and joined the school's faculty in 1990.  

Justice

Karen Tani at the Legal History Blog has drawn attention to Allan Beever's new book, Forgotten Justice: The Forms of Justice in the History of Legal and Political Theory (OUP, 2013). The argument fron the publisher:

    Throughout much of the history of political philosophy, many of the great philosophers begin their work with an investigation of private law. Why is this? And why is the central focus of our modern concern, the state, examined so late in their works? This book suggests an answer to these and related questions. It reveals that there are two general ways of thinking about the legal and the political: the modern which sees all through the lens of the state, and the traditional which begins with individuals and with the normative relations that exist between them building only slowly towards the community and the state.

    In the modern view, private law is understood as a method for achieving certain social goals. As such, it can be overlooked by political philosophy. For the traditional view, on the other hand, private law is of central philosophical importance, because it is there that we observe a society's enunciation of its most fundamental political and legal values. Arguing that an understanding of the traditional view is essential to an understanding of private law and political life, this book highlights how the modern conception is seriously distorting in this regard.

    A story unfolds throughout the chapters: the story of the growth and decline of the traditional view in political and legal thought. It challenges the modern fixation with the state, arguing for a return to the traditional view of legal and political community.

Strictly speaking of the historical argument- that sounds rather pursuasvie to me. We have a very difficult time thinking about the relationship between political philosophy and public law (or "public philosophy") on the one hand and private law on the other. The most striking example of this difficulty that comes to mind, at least for me, is the concept of equity. We have strong, broad historical and theoretical treatments of the subject (think of Peter Hoffer's Law's Concience, David Lieberman's The Province of Legislation Determined (a personal favorite of mine), or the work of Drucilla Cornell, or along those lines Derrida's famous essay in Deconstruction and the Possibility of Justice. That being said, the relationship between the concept of equity and the jurisdiction of equity is understudied. Good places to look right now, I have found, are in law and literature- Daniela Carpi's own work and edited volumes, including The Concept of Equity and Practiging Equity, Addressing Law, and Bradin Cormack's A Power to do Justice, and in legal history- Ian Williams of University College, London on the practical creation of maxims in late medieval and early modern legal theory.

Chancery courts at all levels of various constitional orders were controversial in the early modern British Atlantic world precisely because they were local sites for configuring jurisdictional and judical power (think of the political situation behind the Zenger case, or Jefferson's pet project of instituting a High Court of Chancery in Virginia, to say nothing of his equity commonplace book). Chancery, in other words, was shot through with larger, open-ended questions at play in English, British, and British American constitutionalism about who judges and where (and for whom and for where) they get to do it. Contests over conciliar courts (from the Star Chamber on down) were fundamental fights about sovereignty itself. 

Now in terms of political theory, one of the many reasons I remain skeptical of the perpetually asserted importance of Carl Schmitt is that his notions of the state of excpetion and political theology would not have struck anyone in the early modern world thinking about equity as particularly insightful or original. It has long been understood that there is a point at which positive if not all of customary law breaks down, loses coherence, or becomes suspended, and a good deal of the history of legal and political thought has been concerned to identify just what that point is and when or where it should be or simply is reached, and what should happen when it is reached. Are we standing then in the presence of natural law, a transcendent justice, and how do human institutions, or human beings themselves, acknowledge that point and deliver that justice without becoming, or at least appearing to become, either the object or instrument of sheer force of sovereign will? These are questions broached by More and Hobbes among others in their days and in our own age of "governmentality" and the security state these questions are hardly irrelevant. But, so the argument might go, we ask and answer such questions not only in political philosophy or high constitutional (or unconstitutional) politics, but in our relationships with one another, in everyday practices and in private law. Bonnie Honig of the American Bar Foundation makes something of a similar point in her book, Emergency Politics: Paradox, Law, Democracy.

One could speak here of a need for ordinary legal philosophy. 

Anyway, I will discuss Jefferson's place in all this in another post before signing off. Beever's book sounds quite interesting, and it seems to be part of a trend to refocus legal scholarship on big questions that involve the long history of thought- it is worth noting that scholars are getting over our ingrained (and I would want to say in many cases still justified) concerns about metanarratives.

 

 

 

Two Tax Professors Laud Former IRS Chief's Work in Innocent Spouse Cases

Professor Carlton Smith (Cardozo) and Professor Keith Fogg (Villanova) published a letter to the editor in today's Tax Notes.  They write:

We were saddened to hear that acting Commissioner Steven Miller will no longer be at the IRS.  Regardless of whether he acted appropriately in the matter of exempt organization application reviews, we wanted to praise him for his fine work in the innocent spouse area and his willingness to reach out to the community of practitioners respresenting low income tax papers.  The public is likely unaware of that fine work.

Read the full letter at Tax Notes (available via Lexis; no free link available - sorry).

Last year, former acting Commissioner Miller met with directors of low income taxpayer clinics to receive their comments on a draft revenue procedure to guide IRS staff in determining equitable relief claims under the applicable innocent spouse statutes.  Professors Smith and Fogg said that, "We really felt that [Steven Miller] was an ally to the innocent spouse cause and that the cared about the individuals caught up in the circumstanstances that cry for relief."