The Faculty Lounge

Hey, IRBs: You're Doing It Wrong (But It's Not Your Fault). Also, Thanks a Lot, Toshiba

So I've just posted a draft paper on SSRN, "Regulating the Production of Knowledge: Research Risk-Benefit Analysis and the Heterogeneity Problem," the first of a pair of companion articles on, well, how we regulate knowledge production -- focusing on IRBs in particular and on the peculiar risk-benefit standard that pretty much every federal agency (and the governance frameworks of many other countries) requires them -- futilely, I argue -- to perform. As soon as I finish navigating the ExpressO/Scholastica maze, I'll be blogging about some of issues raised in this paper, its companion, and "Legal Experimentation: Legal & Ethical Challenges to Evidence-Based Law & Medicine," a workshop (and edited volume) I'm organizing this spring.

But for now, a few brief thoughts:

(1) I hate the title of the draft paper. It's hideous. I long for the concise elegance of Prison Vouchers or some of the others mentioned here. The companion paper is tentatively titled "Research Contracts." That's followed by the usual boring descriptive subtitle, of course, but I consider it a victory at least to have begun with the kind of title I aspire to. For the posted draft, though, I can't even manage to do that. "Hey, IRBs: You're Doing It Wrong (But It's Not Your Fault)" is a fair description, but seems a little glib for a law review article. So I'm all ears if anyone comes up with a less jargonistic, sleep-inducing title. (More importantly, and in all seriousness, I'm very open to feedback on the paper itself.)

(2) Toshiba is on my s*** list. Partly because I'm a die hard Mac person, but mostly because of Toshiba's latest ad campaign, embedded above, which stereotypically portrays research participants as the passive objects of mad scientists -- that is, as proverbial guinea pigs. Like other historically disempowered groups, career research participants have reclaimed that moniker. But Toshiba's customers don't know that, and its ad helps perpetuate the image of research participation as terribly dangerous and degrading and as something that only someone who is either irrational or desperate (and willing to be exploited) would agree to. In reality, research participants can and do initiate research, and in the increasingly popular Citizen Science and Quantified Self movements, the distinction between researcher and "subject" disappears altogether. It's also closer to the truth (ahem, Time Magazine) to say that a lack of experimentation has turned millions of us into human guinea pigs in the realms of health care and legal services, and as the subjects of any number of laws, regulations, and policies (see the "Legal Experimentation" prospectus, linked above). /Rant

How to Deal With an Irrational Faculty Colleague

A reader over at Lifehacker asks, "How Do I Get Out of an Argument with an Irrational Person?"  The advice boils down to this:

In the real world, the best way to win when someone gets irrational is to keep your calm, exit the conversation skillfully while leaving the option open to future discussion—because after all, you're the one with the evidence to back you up and the willingness to discuss it, and leave the other person blowing steam while you keep your cool. When you know for sure you're not getting anywhere, exit the conversation quickly, making clear that you could continue to prove your point, but see that there's no reason to continue.

Keep calm, maintain your position, and postpone the conversation.  Makes sense in the interpersonal context. (The full piece is available here.)

I don't think this advice translates easily to faculty politics.  (Of course, I do not imply that any colleage of mine might hold an intractable position about faculty parking, the brand of turkey on offer in the school cafeteria, or...anything....ever!)  "Keep calm, maintain one's position and postpone the conversation" would lead to institutional gridlock.  Sure, sometimes it's good to table a motion, but what about the cases in which postponement isn't a viable alternative. 

 

So how to deal with an irrational faculty colleague?  A friend once described the importance of squirt guns to her business school working group.  Each member had a squirt gun and was meant to deploy it against anyone who did not observe group norms during brainstorming sessions.  The person who repeated himself, interrupted another, or otherwise failed to observe group norms was likely to be hit with water from the rest of the group.

Super Soaker, anyone?  Backpack water-storage option available.

    image source: here

College Tuition in the News

MSNBC news story here.

TIME magazine story here.

And any college/university that participates in federal student-aid programs must provide on its website a net-price calculator no later than this Saturday, October 29, 2011.  Additional reading here and here.

(Astute readers will notice I'm including this post under the "fear" category.)

Two Narratives of Courage

One of the corollaries of any study of manliness is courage, the supremely male virtue.  But if courage forms the center of male virtue, do we know what courage is?  In a work in progress, I’m interested in juxtaposing two narratives of courage, those proffered by judges to underwrite their opinions and those ushered by combat soldiers to make sense of what they experienced.  I know the below examples, not at all the product of random sampling, hardly begin to scratch the surface; perhaps, though, they’re food for thought. 

 Three Judges on Courage

 “Those who won our independence believed. . . .courage to be the secret of liberty. . . .”--Justice Brandeis, Whitney v. California (1927). 

“. . . the exercise of First Amendment rights often requires an act of courage,. . . .” --Judge Ramirez, Keene v. Meese (1985).  

“To justify a homicide the fears of the slayer must be those of a reasonable man, one reasonably courageous, reasonably self-possessed, and not those of a coward.” --Judge Louis L. Brown, Wheeler v. State (1934). 

Three Soldiers on Courage

“It is hard to know what bravery is.”--Tim O’Brien, Vietnam War combat veteran.

“It was some months and only a few more bullets and shells later that I knew my courage for what it was—a reaction to the shame I felt at being afraid,. . . .”--Robert Crisp, World War II veteran, recipient of Britain’s Distinguished Service Order and Military Cross.

“I understand desertion.  A man distraught determines that the last act of his life shall at least be one of his own volition; and who can say that what is commonly regarded as the limit of cowardice is not then heroic?”--Max Plowman, World War I combat veteran.

Man up!........Man up?

Thanks to Dan for letting me guest blog.  Alas, I immediately repay his kindness by exploiting this opportunity to post on something bleakly provincial to my own scholarly preoccupations:  manliness.  Specifically, manliness in the context of law and literature.  I know, I know.  Here we are, in the debt crisis, facing the impending end of Western civilization, and I want to blog about law & literature. . .regarding. . . “manliness.” (isn’t this the shameless epitome of the self-indulgent academic?) 

But so much of the debt crisis is suffused with the idiom of manliness, isn’t it?  Liberals cry that Obama needs to “man up” and confront the Tea Party while Boehner, even for a dude who doesn’t mind having a good ole’ public cry now and then, once committed, can’t stand down from his manly posture without embarrassment. 

But this post isn’t me expounding my views on manliness (ummmm, you can find that here, incidentally).  It’s rather me asking for your help.  I’m trying to put together an annotated bibliography, provisionally titled, “Manliness:  A Law and Literature Perspective.”  So, for example, I would include—would have to include—Mario Puzo’s The Godfather.  Talk about manliness, it has every aspect of it:  the patriarch, the reckless man-child, the avuncular bully, the callow son trying to prove his manhood, the faltering wimp, you name it.  And all of it takes place in the context of law.  Guys trying to violate it, bribe it, evade it, enforce it.  Much of the law, then, presents obstacles and opportunities for and extensions and emanations of manliness. 

So, I need your help:  what do you think would be good pieces of literature to include in such a bibliography of manliness in law and literature?    

"You can do it, Japan!" Penn Students Raise Funds for Japan Earthquake Relief

 
Members of the LL.M. Class of 2011 at the University of Pennsylvania Law School have joined with students from Wharton's Japan Club to fundraise for earthquake relief efforts in Japan.  The students are selling a t-shirt, with all proceeds going to the Red Cross.  Their email (reprinted with permission) appears below.

We are the Japanese LL.M. 2011 students of University of Pennsylvania Law School.

As you might know, the Japanese people are struggling to recover from the unimaginable wreckage and loss of life from the catastrophic earthquake and tsunami, which happened on March 11^th. Fortunately, all of our family members in Japan are safe, but about 380,000 people are still living in evacuation centers and are in desperate need of basic supplies. In addition to the thousands who lost their lives, more than 10,000 others are still missing.

In cooperation with the Wharton Japan Club, we Japanese law students have decided to do some fundraising in the Law School for the victims of the devastation. We are grateful if you would help us by buying a T-shirt and making a donation online here . Also, you can directly donate through this website here.  All donations and proceeds from the sale of T-shirts will go to the Red Cross, where the money will be used to help those affected by the earthquake and tsunami.

For updates on ways to help, please join this Facebook group. Any assistance you can provide would be most appreciated.

Sincerely,

Japanese LL.M. 2011 students of Penn Law

The t-shirt says in Japanese, "You can do it, Japan!"  The shirts are available for purchase only by residents of the U.S., Canada and Mexico.  World-wide donations are being accepted via the FirstGiving website here.  Kudos to the Penn students for putting this together. 

Wikileaks: House Judiciary Committee Hearings

 

Hearings held this morning on "Wikileaks, the Espionage Act and the Constitution."

Just 10 minutes in, but so far the "voice of reason award" goes to . . . . 

 

Wikileaks: Beware The Blacklist

 

As a follow-up to Dan's earlier post on the hysterical response to Wikileaks, check out why grad schools (including one law school) are warning students not to access docs posted on the site.

 

 

Facebook: Virtual "Panic Button"?

In an effort to curb online bullying and online predators, a British child protection agency is apparently working to convince Facebook to institute a virtual "panic button" that would allow Facebook users to immediately alert authorities if a suspected predator was online.  See story here.

Law Review Haiku

eXpresso contacts

for expedited review.

Rain, taxes, April. 

Gym Rats

Miriam Cherry's wonderful post on gyms and BFOQs brought to mind my own experiences as a gym goer.  Her BFOQ hypo rests on the fact that something in the gym experience, as well as the behavior of some gym goers, can make the thought of working out at a gym as frightening as -- eek -- public speaking!  The desire to control that environment -- such as by limiting who can work at the gym -- is targeted at that fear.

So, here's my theory, based solely on personal experience, of why a gym can be an intimidating place.  When I began exercising, I avoided gyms, preferring the solace of solo, outdoor exercises like walking and running.  The thought of going to a gym made me feel vulnerable.  For one, as someone who has struggled with weight and body image issues all of my life, I worried that standard gym attire allowed others a fairly good view of where my body stands.  (And that doesn't touch on pool attire, which always bring back flashes of the grade school gym class shaming ritual known as shirts v. skins.)  It also doesn't help that exercise performance can be quantified (what's your mile pace? what's your one rep max on the bench?), adding the anxiety of measuring up to -- or being judged by -- other gym dwellers.  And beyond these neuroses, there is a learning curve to working out safely and effectively.  So, finding a gym with a supportive environment was important to me.  To pick up on a point in Miriam's post, I wanted to preserve an aspect of privacy while working out in a public space.  If a person finds a single-gender environment important to preserving that privacy, I support that choice.

Once I got beyond my gym hangups, and found a gym where I felt comfortable, I still had to deal with the usual cast of misfits who have no sense of gym etiquette, or even minimal social graces.  I mean, no gym is perfect.  So I can also see that a person would prefer a gym where the likelihood of bad behavior, and thus the invasion of one's privacy, is lower.  And for some a single-gender environment may create that security.

To close, I'll share my top gym behavior pet peeves.  I'd be interested in hearing from others on the subject.

Excessive Grunting.  I can see that you are lifting REALLY heavy weights, so I don't need accompanying grunts to highlight your Herculean effort.  And while we evolved from primates, there's no reason to act like one at the gym.  Just one question -- will you make the same sound when you pop a hernia while eking out your last rep?

Singing Out Loud.  Two words -- sound travels.  Now don't get me wrong -- I listen to music while I exercise, and I've been known to top off a good runner's high by belting out the chorus to It's Raining Men.  But here's the thing -- I was outside, and no one was within ear shot.  As we like to say in the law biz, singing inside a gym is distinguishable.  So while it's impressive that you know 87% of the lyrics to Lady Gaga's Bad Romance, the rest of us have our own iPods, so we're covered music-wise.

(BTW -- true story.  I overheard one gym goer trying to sing Bad Romance, and they came out with the line "caught in a bathroom stance" instead of "caught in a bad romance."  Not only does that line not fit the rest of the song, but, as far as I know, the song is not about former Idaho Senator Larry Craig.)

Not Wiping Down Sweat on the Equipment.  It's gross.  If I wanted to get wet, I would have gone to the pool.  Wipe the equipment. Enough said.

Not Re-Racking Weights.  Yes, I know you're lifting heavy weights (see "Excessive Grunting" above). So you don't need to leave your dumbells lying on the floor, hoping I'll trip on them and be shocked and awed when I notice their immense size as my head crashes to the gym floor.

Homophobic/Misogynistic/etc. Put Downs.  At some -- but not all -- of the gyms I have been to, I have heard taunts like, "Oh, that's so gay," "You lift like a girl," or "You're behaving like such a retard."  While the other behaviors merely annoy me, this one gets me angry.  This is no laughing matter, and it is the one thing I will always take time to address.  Especially at the University rec center, where I work out on campus, because faculty and staff have a responsibility to model behavior.  This is an area where I hope fellow gym goers will join me in showing zero tolerance.

So, there you have it.  Hope to see you -- but not necessarily hear you -- at the gym!

"Blame it on the Muslims . . . no, wait, it's the Jews." Actually, the problem is the prosecutor.

Remember back in 2006 when a Dutch newspaper published a cartoon of the prophet Muhammad wearing a turban shaped like a bomb that was about to explode?  Neither the cartoonist nor the newspaper were investigted for inciting hatred under Denmark's restrictive hate-speech laws, and two years later when police discovered a plot to kill the artist, the newspaper went ahead and reprinted the cartoons in an homage to free speech and "gesture of solidarity" with the cartoonist. 

And remember 'Fitna,' the rabidly anti-Islamic cinematic nightmare by Dutch lawmaker and right-wing radicalist Geert Wilders - the guy who called Islam a Nazi religion and the Quran an instrument of fascism?  The prosecutor declined to open an investigation until a public outcry (and court order) forced him to reconsider whether Wilders violated laws against inciting religious hatred.  Charges were filed but ultimately dropped when the prosecutor concluded that Wilder directed his rants toward Muhammad alone, but not to Muslims as a group.  (whatever.)

But now prosecutors are charging the Dutch affiliate of the Arab-European League with inciting hatred in a cartoon that suggests that the holocaust was a hoax.  Immediately after the cartoon appeared on the group's website in August, the prosecutor gave them two weeks to take it down, or face criminal charges.  The AEL complied initially, but reposted the cartoon once charges against Wilders were dropped.  

A spokesperson for the AEL said the cartoon was not meant to incite hatred and did not reflect its actual views about the holocaust.  Their goal, apparently, was to highlight the prosecutor's double-standard, and the  'incomprehensible' decision to threaten prosecution against AEL while dropping charges against Wilders.  Neither of the cartoons, he said, should lead to prosecution.

Still, prosecutors are forging ahead with charges that carry a year long prison sentence and $6700 fine.  The justification: although the Muhammad cartoons "can be offensive . . . the Holocaust cartoon crosses the line."     

It's hard to get your mind around the level of hatred wrapped up in these events.  But leaving aside the arguments for or against hate-speech laws generally, one does have to wonder what measure prosecutors are using to distinguish cartoons that are merely 'offensive' from ones that will land you in jail.

-Kathleen A. Bergin

Fear and Loathing Come to Greensboro

This afternoon, passing through the law school lobby on my way to teach Civil Procedure, I was distracted by the roar of motorcycles. A biker caravan passing down Greene Street might not have attracted much notice, but for the fact the every bike was festooned with a Confederate flag (or two or three) and many of the riders sported Confederate and neo-Nazi emblems on their leather jackets. These racist fascist bikers are in town for the Southeast regional gathering of the National Socialist Movement, which claims to be the largest neo-Nazi organization in the U.S.

Their presence is particularly offensive in a city that is still picking over the wounds of the notorious 1979 Greensboro Massacre, where five anti-racist marchers were gunned down by white supremacists. The killers were acquitted by all-white juries; in a later civil trial, the City of Greensboro, the Ku Klux Klan, and the American Nazi Party were found liable for violating the marchers' civil rights. 

Suffice it to say that most people in Greensboro do not welcome this hateful group. Greensboro would prefer to be known for its more positive and photogenic role in civil rights history. It was here, in 1960, that 4 African-American students from North Carolina A&T University sat down at a Woolworth's lunch counter and refused to leave, a crucial moment in the non-violent protest movement that would help bring about the Civil Rights Act of 1964. After some delay, the International Civil Rights Center & Museum is now under construction in the former Woolworth's building. 

As a civil libertarian, and a law professor, I understand why these racist fascist cretins must be permitted to drive through my town displaying their hateful emblems, and to hold their hate-filled meeting (which, I can't help but be amused to note, is billed on the National Socialist Movement website [I'm not going to provide a link] as "business casual"). As a resident, I hope that they are true to their word that this will be a peaceful event at a private location, without a public rally. As a human being, I despair at the fact that here, in 2009, there are still people who think it worthwhile to gather in the name of racial superiority. It's times like this that I wish I believed in Hell.

Computer Terrorism and the Laws of War

A colleague of mine today raised an interesting question to which I don't know the answer.  He wondered if anyone was writing on the parallels between cyber-terrorism and the laws of war.  He was thinking specifically about situations where a remote cyber-attack effectively brings down the infrastructure in a target country (eg hospitals, schools etc).  Does anyone know of any work that brings together the fields of, say, International Humanitarian Law on the one hand, and Cybercrime on the other?

Feeling OK?

Did you wake up feeling under the weather?  Got a case of the shakes?  Maybe a bit of breathlessness?  Nausea?  Perhaps excessive sweating and dry mouth?  Did you wake up with heart palpitations and a fear of dying?  Do you sense that you’re going mad, losing control, or having a massive anxiety attack?

I’m not a doctor.  But I did stay at a Holiday Inn Express last night.

See my diagnosis, below the fold.  (No jokes about the UCC, please.)

"Pray the Gay Away"

One of my students told me Sarah Palin's church was getting together this weekend to "pray his gay away."  Turns out, he's right. 

The Wassilla Bible Church where Palin belonged for six years is playing host to Focus on the Family's Love Won Out conference which, according to the promo "strives to upholds God's design for sexuality in a way that transforms lives." 

And so:   

Whether you're a parent, friend, family member or ministry leader who wants to lovingly reach out with uncompromised faith -- in compassion and grace -- to a loved one who deals with homosexuality, Love Won Out has the resources to help.

I do believe with God all things are possible.  But I also suspect that my students who were gay last week will still be gay next week. 

And I think God's ok with that.

-Kathleen A. Bergin

Redux: 1692

In 1692, leaders of the the Massachusetts Bay Colony held court in Salem, Massachusetts, hoping to purge the village of witchcraft.  The prosecutions were a sham of course, relying as they did on "spectral evidence" and coerced confessions that the accused had communed with the devil.  When that wasn't enough to secure a conviction, there was always the dreaded and dehumanizing body probe - the search for "witch's tits" (scars or birth marks in reality) to show that the accused had suckled a demon.

Witches as we know didn't pose a threat to Salem at all, but non-conformity did.  And that, some historians say, is why prosecutors targeted women, and to a lesser extent men, who by word or by deed rebuffed Puritanical virtues.      

With that in mind, its hard to miss the parallels between the hysterics of colonial New England and the witch hunt that spread through Holmes County, Florida after a group of high school students came to the defense of a gay classmate who was being bullied at school.  When the students complained to the administration, the Principal launched an investigation - not into incidents of homophobic harassment, but into a secret "gay pride" society he suspected of infiltrating his campus. 

The Principal in this "peaceful, Christian, family-oriented community" began by outing the gay student to her parents, telling her homosexuality was morally wrong, and ordering her to stay away from younger students.  He interrogated another 30 classmates about their sexual orientation, and warned them not to "go down that road" because homosexuality is against the Bible.

He convened a school-wide "morality" assembly, and prohibited students from wearing rainbow belts, pink triangles and other heretical elements such as t-shirts and stickers that read "I Support My Gay Friends" and "God Loves Me Just the Way I Am." 

After suspending a number of students, he admonished one of their parents that "if there were a man in your house, your children were in church, you wouldn't be having any of these gay issues."  He offered to secretly send her daughter to a private Christian school in Tennessee or to a juvenile detention center.

And stealing a page from Salem's playbook, he called a number of female students into his office and lifted their shirts to see if "gay pride" was written on their bodies.

Last month the ACLU won a First Amendment lawsuit against the School District (no sexual harassment claim; no assault charges?).  But the community struck back, calling a town meeting in support of the Principal, and demanding that he stay on as a teacher once the district removed him from his leadership post.  Seems most of them just can't figure out what it is he did wrong.  See here and here.  As for the young heroes who stood up to this bully, they've predictably been tagged as the heretics in this melodrama and all but run out of town. 

Seems every age has its scapegoats.      

-Kathleen A. Bergin

Image: "Examination of a Witch" by  Thompkins H. Matteson, 1853.

Government Roadblocks: Smokers, Dealers, Drinkers and Pedophiles

I guess I shouldn't be surprised that the federal government is peddling fear.  Sitting at my desk, drinking a cup of coffee, I attempted to read a New York Times article this morning.  As sometimes happens, I encountered a roadblock ad sponsored by the Office of National Drug Control Policy.  I loathe roadblocks so I normally move quickly to shut the ad and read the article.  This time, though, the moving headline caught my eye: Smokers, Dealers, Drinkers and Pedophiles.  I was so flummoxed by this clear pandering to popular fears of pedophiles - anxieties that are one my chief scholarly interests - that I was unable to process the rest of the ad.   I tried google to find any reference to the ad, with no luck.  Finally, I thought to check the Drug Control Policy website.  There I discovered the motherload of monitor your teen ads, many of which I've previously dismissed on my way to reading the news.  And I found today's message here.

Here's the problem with today's fear-of-pedophilia ad: in its effort to trade on popular anxiety - using existing fear to cause readers to pay attention - it also further produces that fear.  Every time the government waves the bloody shirt of pedophilia, a few more readers will begin to believe that the nation is in a child sexual assault crisis.  And it's simply not clear that this is remotely true.  But by generating that anxiety, more and more voters become open to the sorts of aggressive, repressive regulations supposedly needed to suppress this crime.  Internet speech bans.   Shaming sanctions.  And I won't be surprised if, at some future point, states begin to reguate the dating habits of single moms.  (The data suggest, at least, that this would be the most productive site of intervention.)

Market research may show that you need to employ this radioactive rhetoric to grab the attention of readers.  But it is also true that fear is the tool of authoritarian governments.  I've blogged previously about increasingly aggressive governmental surveillance and policing.  Today's ad is a small component of this troubling agenda.