The presumption that God is omnibenevolent—inherently just, wise, kind, and merciful—is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoke of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself. In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.As always, I'd love you feedback.
The paper is built around a hypothetical alienation of affections or criminal conversion case that involves an artificially intelligent actor. Through focusing on that hypothetical, the paper considers the problems posed by AI liability for social wrongs. It also explores how law and social robotics may be able to adapt to one another to solve potential problems caused by having an AI actor regulated by law that was designed to regulate interactions between humans.
Friends and colleagues have asked me what tort law and AI sexbots have to do with my interest in environmental law and policy. Admittedly, they don't have much to do with each other on the surface. Both involve law and new uses of technology of course. But at root, what interests me is whether we are treating each other and the world around us in a way that is just, compassionate, and sustainable.
I'm looking forward to discussing these goals in relation to social robotics with the engineers, scientists, authors, and other experts at the ICSR 2011 conference.
Wednesday, July 13, 2011
A Little Mercury. A lot of Mercury. What’s the Difference? Some Members of Congress Don’t Seem to Care.
**First published at Shark. Laser. Blawg.**
There's a number of reasons why the House bill to repeal national energy efficiency standards for light bulbs makes no sense. The standards, enacted by the Energy Independence and Security Act of 2007 ("EISA"), require that new light bulbs be 30% more energy efficient by 2013. The EISA does not "ban" incandescent bulbs as conservatives have claimed. Industry supports the efficiency standards. The standards, moreover, are projected to save Americans money (about $85 per year, per home and $12.5 billion in energy costs nationally by 2020). One of the stranger elements of Republicans' desire to repeal EISA, though, is a new-found concern over the health effects of mercury.
Rep. Joe Barton (R-TX), who sponsored the bill, has called CFLs "health hazards." Michael Burgess (R-TX), a co-sponsor, expressed his concern, too: "I have stated all along that exposing our citizens to the harmful effects of the mercury contained in CFL light bulbs . . . is likely to pose a hazard for years to come."
It isn't the fact that the amount of mercury in a CFL is one-fifth the amount in a wrist watch battery that makes their concern strange. It's that these same congressional Republicans in recent years have rarely exhibited concern over mercury exposure. To the contrary, Joe Barton previously doubted that mercury exposure from coal-fired power plants was a problem, as he did back in April at a congressional hearing: "To actually cause poisoning or a premature death you have to get a large concentration of mercury into the body. I’m not a medical doctor, but my hypothesis is that’s not going to happen!" Barton and Burgess, along with other supporters of the bill, also paradoxically supported an amendment prohibiting the EPA from spending any money to enforce mercury emissions reductions from cement plants in the United States.
Fortunately, the public seems to have seen through this gambit. In fact, public opinion, as well as that of the energy and light bulb industries, broadly supports the EISA, no doubt because it promises to save consumers $12.5 billion in the next nine years. In attacking the EISA, however, Rep. Marsha Blackburn (R-TN) nonetheless remarked that "[t]hese are the kinds of regulations that make the American people roll their eyes." The public's eyes might be rolling, but not for the reason Rep. Blackburn seems to think.
Why have lawmakers tilted at this windmill? What explains their fervor in attacking a measure that would save consumers tens of billions of dollars? What to them is worth that expense? It would appear to be nothing more than a pat on the back from fellow ideologues and head-in-the-cloud utopists.
Monday, June 27, 2011
The California Senate Environmental Quality Committee is set to consider a fracking disclosure bill today. Like other disclosure bills, AB 591 does not prohibit or restrict fracking. Rather it sheds light on the fracking process and protects public health by requiring fracking companies to disclose the chemical constituents of "fracking fluid" used at each well.
AB 591 differs in significant ways from fracking disclosure legislation in other states. First, unlike the Texas bill passed earlier this month, the California bill does not exempt "trade secret" chemicals from its disclosure requirement. Second, the bill requires companies to report the amount and sources of water used used in fracking exploration and production.
These differences are extremely positive. By ensuring that all chemical constituents are accounted for, California is in a better position to prevent and clean up toxic spills at fracking sites. Disclosure also has the added benefit of potentially making discovery for toxic tort cases arising from fracking easier.
The bill's unique water disclosure requirement benefits the public too. California's surface waters have been a major subject of litigation and legislation for over a century. (Mark Reisner's Cadillac Desert is still one of the best summaries of this history). California is also depleting its groundwater at an unsustainable rate. Fracking will exacerbate California's water woes. Each fracking well uses approximately two to five million gallons of fresh water. Once used, that water is permanently contaminated by chemical additives and cannot be safely returned to the water cycle. AB 591 would make public valuable information about how much and what water fracking removes from California's limited fresh water supply. With that knowledge the public and the state can make better informed decisions about whether and where to allow future fracking.
AB 591 doesn't propose anything that would limit fracking in California. It simply makes available information that is necessary to protect public health and California drinking water. Some amendments could make it stronger--i.e. requiring reporting of the amount and treatment of fracking waste-water and the concentration of chemical additives. As is, however, the bill is still a very reasonable first effort at creating oversight for fracking in California.
Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through social exhaustion at grappling with the problem of inequality to seemingly little effect. I argue that attentiveness to sticky slopes is important for two reasons. First, awareness of the prospect of a sticky slope can be important in long term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision.
Saturday, July 11, 2009
A brief summary of the issues the Court would maybe delve into:
- Original meaning in 1791 vs. original meaning in 1868 and how to "figure that out;"
- Incorporation through the Due Process Clause vs. Privileges or Immunities Clause;
- (perhaps) unenumerated liberties and how they relate to the P or I Clause and (even more perhaps) the Ninth Amendment;
- The purpose of the 14th Amendment in relation to the failure of state police protection;
- The Doctrine of Vested Rights;
- Locke vs. Hobbs on the State of Nature;
- The import of Corfield v. Coryell, (CC. Pa. 1825) on the meaning of the P or I Clause;
- Just how damn radical the radical Republicans of the Reconstruction Congress were.
If anyone would like to add to the above bullet points please be my guest. The Law Professors' brief in support of cert. illustrates just what is at stake.
Also, 34 states have signed on to amicus briefs (33 on one, California in its own) asking that the Second Amendment be incorrporated against them. Has this ever happened before? I can't imagine that in any previous case regarding incorporation that 68% of all states have asked that additional restrictions be placed on their "sovereignty." Any knowlege on if there is any similar precedent?
Sunday, February 22, 2009
There has recently been a considerable amount of press coverage of regulations requiring that restaurants post nutritional information on menus and menu boards. New York City is the first city to have passed such a regulation, though not without incident.
New York redrafted its menu labeling regulations and adopted a revised §81.50 in January 2008. The revised regulations require food-service establishments that are part of a chain of 15 or more restaurants nationally to list calories for standard menu items on menu boards, menus, or food item display tags. The font and format used for calorie information must be at least as prominent in size as is used for the name or price of the menu item. The NYSRA immediately challenged the new regulations on preemption and First Amendment grounds (under a compelled speech theory). However, Judge Howell upheld the new regulations in April 2008, ruling that the new regulations are not preempted by federal law and do not infringe on restaurants' First Amendment rights. Although the NYSRA requested a stay of enforcement pending appeal, Judge Howell denied the request, as did the Second Circuit, and enforcement began in May 2008 (though fines were not issued until July 2008). Supporting New York City in the appeal were a number of public interest groups, including, to name just a few, Public Citizen, U.S. Congressman Henry Waxman, Former FDA Commissioner David Kessler, Center for Science in the Public Interest, American College of Preventive Medicine, American Diabetes Association, American Medical Association, American Public Health Association, and many other leading public health groups and academic experts.
The Second Circuit upheld the revised regulation earlier this week, in an opinion written by Judge Rosemary Pooler. New York State Restaurant Assoc. v. New York City Board of Health, No. 08-1892-cv (2d Cir. Feb. 17, 2009) (Decision available at ). Rejecting the NYSRA's preemption argument, the court explained: "In requiring chain restaurants to post calorie information on their menus, New York City merely stepped into a sphere that Congress intentionally left open to state and local governments." In assessing the NYSRA's First Amendment arguments under a rational basis standard, the Court pointed to research concluding that eating out is a major contributor to obesity. Moreover, the Court cited studies showing that consumers are typically unable to accurately assess the caloric content of foods (perhaps because of the "health halo"?) – "a statement which we do not doubt upon being informed, counter-intuitively, that a smoked turkey sandwich at Chili's contains 930 calories, more than a sirloin steak, which contains 540, or that 2 jelly-filled doughnuts at Dunkin' Donuts have fewer calories than a sesame bagel with cream cheese."
New York is not the only city that has mandated menu labeling in recent years. Many jurisdictions have followed suit, including the state of California, King County, Washington (Seattle), Multnomah County, Oregon (Portland), Philadelphia, Westchester County, New York, and most recently (less than three weeks ago), Suffolk County, New York.
Suffolk County's menu labeling bill, which is modeled after New York City's, passed 17-1, which may indicate that these types of bills are becoming less controversial in certain regions of the country. Suffolk County lawmakers stated that they hope that making available more nutritional information will help consumers make healthier decisions. The lawmakers used Starbucks as an example: a grande Caffe' Latte has 130 calories, but a venti Strawberry Crème Frappuccino has a whopping 750 calories. It remains to be seen whether providing this information on a menu will actually lead consumers to choose lower calorie options, although the New York City Department of Health projected that menu labeling in the City will prevent at least 30,000 new cases of diabetes over the next five years.
In September 2008, California became the first state to pass a menu labeling regulation, although its bill is less widely applicable than New York City's law and will not be fully effective until January 2011. Under the California law, which supersedes any existing or future local ordinances, restaurants that have twenty or more locations in California must post calorie information for all standard menu items on menus, menu boards, and food display tags. The bill does not require nutrition information at grocery stores, for items on the menu for less than 180 days, alcoholic beverages, or self-service items at salad bars or buffet lines. Although the bill is less widely applicable than New York City's regulation, which applies to any restaurant with fifteen or more locations nationwide, California lawmakers expect that the provision of nutrition information will result in significant positive health effects for the state, including the prevention of up to 38.9% of weight gain. See here for more details.
Although a menu labeling bill wasn't terribly surprising coming from California, which is generally more health conscious than the rest of the country, it was quite a surprise to see the aggressive approach taken by Philadelphia, home of the cheesesteak. In November 2008, Philadelphia passed what is currently the strictest menu labeling regulation in the country. The bill, which will be effective in January 2010, requires restaurants with more than 15 outlets nationwide to disclose calories on menu boards, AND calories, saturated and trans fat, sodium and carbohydrates on printed menus. It will be extremely interesting to see how this bill will impact sales at sit-down chain restaurants known for delivering caloric wallops, since those establishments have had no nutritional disclosure obligations until now and have thus (predictably) provided minimal to no nutritional information.
Even my home state of Kentucky, not usually known for its nutritional initiatives, is considering a menu labeling bill, filed by state Senator Denise Harper Angel of Louisville. Sen. Harper Angel's bill, SB 133, would require restaurants with at least 10 locations in Kentucky to provide calorie information on menus and menu boards on all standard menu items. Sen. Harper Angel said the bill, which she calls C-Meal (Consumer Menu Education and Labeling) truly is a consumer bill. "Displaying calorie information in this manner is a common sense approach that would allow consumers to exercise personal responsibility by providing them with the knowledge they need to make informed decisions," she said. "C-Meal would allow people to make better dining choices." Although the bill seems unlikely to progress during the 2009 legislative session (a similar bill was proposed in 2008 and went nowhere), it seems indicative of the larger trend of states and cities taking the initiative to provide consumers with nutritional information in the absence of federal regulations on the subject.
Although no federal menu labeling requirements exist, the topic has gained momentum in recent years, especially now that the National Restaurant Association is actively supporting the Labeling Education and Nutrition (LEAN) Act, introduced in the 2008 Congressional session. The industry supports this bill on the grounds that a "uniform national nutrition standard will allow consumers access to detailed nutrition information that meets their needs while providing clarity, consistency and flexibility for restaurants in how that information is provided." The LEAN Act would require restaurant and grocery chains with twenty or more outlets to make nutrition data for menu items available to customers before they reach the point of purchase. Specials that are on the menu for 90 days or less would be exempt.
"Before the point of purchase" gives food establishments significant flexibility. Under the LEAN Act, foodservice operations with menu boards would have the choice of listing calories on the board, on a sign next to the menu board, on a sign in the wait queue or by other means as decided by the U.S. Department of Health and Human Services. This requirement is significantly different than those in many state regulations, which require that calorie counts be listed in close proximity to a menu item and in equal prominence to the item. The LEAN Act also states that restaurants with menus could list calories directly on the menu, on a supplemental menu, on a menu insert or on a menu appendix.
Importantly, the bill would preempt all earlier state and local menu-labeling mandates and preclude states and localities from enacting stricter regulations in the future.
A competing bill, the Menu Education and Labeling Act (known as the MEAL Act ), introduced by Rep. Rosa DeLauro, D-CT in the House and Sen. Tom Harkin, D-IA, in the Senate, is supported by many public interest groups and opposed by the restaurant industry. The MEAL Act (which stalled in committee but is expected to be reintroduced this session) would require restaurants that are a part of a chain with twenty or more locations to disclose : (1) in a statement adjacent to each menu item, calorie content, saturated plus trans fat, and milligrams of sodium in a standard serving; and (2) in a statement adjacent to the name of the food on a menu board, the number of calories in a standard serving. The bill exempts condiments, items placed on a table or counter for general use, daily specials, temporary menu items, and irregular menu items. Interestingly, the bill would also require restaurants that sell self-serve food, such as through salad bars or buffet lines, to place a sign that lists the number of calories per standard serving adjacent to each item, and would require vending machine operators to provide a conspicuous sign disclosing the number of calories in each item. In light of Judge Posner's grudging approval of the New York regulation, it would be interesting to know which of these competing bills he would support.
A key provision, which is highly objectionable to the restaurant industry, would allow states to require the disclosure of additional nutritional information. Although the restaurant industry objects to this provision of the bill, it seems relatively unlikely at this point in time that a particular state would require significantly more disclosure than is required under the MEAL Act's already stringent requirements.
Although the plan is for the bills to be reintroduced in the current session, it is certainly possible that these types of bills will be pushed to the back burner in light of the severe economic pressure afflicting all types of industries. Delaying consideration of laws that would impose a cost on industry (however minimal) may be preferable to pushing forward if the resulting bill would be relatively toothless and would preempt more stringent state regulation.
In my next post — which I promise will be shorter than this one! — I will explore some of the initiatives that seek to limit the density of certain types of food establishments in particular locations. These efforts may gain momentum in light of continuing research showing a correlation between fast food prevalence and negative health outcomes. Only this week, at the International Stroke Conference held by the American Stroke Association, researchers presented epidemiological evidence demonstrating a statistically significant association between the number of fast food restaurants and the risk of stroke. While researchers cautioned that the association does not imply causation, this type of information is virtually certain to influence the debate about the types of establishments that a city will encourage or permit.
As for the celebrated Download Day, Spread Firefox has always been a stellar example of how to evangelize a good cause and generate community interest. Their past projects have been impressive and effectual: campus reps, Mozilla On the Street Interviews, globally-synchronized parties, CD distributions, T-shirt contests, and plenty more.
A key aspect of Spread Firefox's campaign success is its openness. Rather than a central bottleneck stopping up ideas, the Spread Firefox community is organized by nodes and decentralized fora. Their members are open to new strategies, new themes, new structures. If you thinks it's a brilliant idea to plow the Firefox logo corn field so that it can be seen by Google Maps, then more power to you. If you want to print giant stickers and post them around town, then do it.
Having an online platform solely dedicated to community-driven marketing is incredibly powerful. Open up your organization and let waves of ideas pore in from your membership. It is a brilliant way to harness the long tail of activism and community outreach.The good stuff will stick and, well, the lesser plans will go back to the drawing board.
Among those other things was a new form of submissions review, which we dubbed the "peer-assist" system. Rather than try to summarize peer-assist, I will reprint the relevant section from our proposal:
The most significant departure from the traditional journal structure that we are proposing is what we call the Peer-Assist system. We recognize that this is a novel and ambitious plan, and we are happy to modify any or all of the Peer-Assist structure to fit within the school’s aims. Additionally, we present three versions of the Peer-Assist program, which represent varying degrees of complexity. We believe that Peer-Assist can be of value to any or all of Penn’s journals, but we present it here in the context of the Wharton Law Review. Lastly, because Peer-Assist represents a departure from traditional journal workings, we decided to seek the opinion of faculty members prior to submitting this proposal. We sought responses from 86 faculty members at law schools around the country, of which 36 responded with comments. Most of the responses were positive; some were negative; all were helpful. A complete list of the comments we received is attached to this document as Appendix B.
Sub-section 1 of this section highlights the deficiencies of both student-editing and peer-review. Sub-section 2 describes the full Peer-Assist system that was sent to professors for feedback. Sub-section 3 describes a localized version of the Peer-Assist system, while sub-section 4 explores a student-only version of Peer-Assist.
1. Problems with Current Systems
We believe that the current system of law journals is designed to serve two basic purposes: the dissemination of scholarly works and the training and education of the students involved. The present structure of legal publication is a cross between the two extremes of traditional student-edited journals and fully peer-reviewed journals. Neither of these systems successfully meets both goals, and we hope Peer-Assist serves as an improvement.
i. Problems with Student Editing
Student-edited journals are, of course, the norm in the legal profession. Student-editing allows for the rapid dissemination of scholarly works without the time costs inherent in a lengthy peer-review process. Authors also have the ability to submit to many journals at once, which increases their likelihood of getting published and in a reasonable amount of time. However, many academics have criticized the student-editing system. Students are often under-qualified, or even un-qualified, to be critical reviewers of cutting-edge academic work in many highly specialized disciplines. Additionally, much of the work that students do on traditional journals consists of mechanical acts such as cite-checking, which does little to further the learning process for the students involved. Student-edited journals leave a lot to be desired.
ii. Problems with Peer Review
Peer-reviewed journals also fail to meet these goals. It can often take much longer to publish in a peer-reviewed journal, since the review process is reliant on the schedules of individual faculty reviewers. Also, peer-reviewed journals do not generally allow for multiple submissions, so if an article is not accepted initially, the author has to start the entire process over again. Lastly, peer-reviewed journals do not give their student members substantive tasks such as selecting articles, if they have student members at all.
Our proposed solution to these problems is the Peer-Assist system. This system seeks to tap into the collective wisdom of academics worldwide prior to selecting articles for publication. A journal using the Peer-Assist method would have the same structure as a traditional student-edited journal; only the process would differ. When an article is submitted to the Wharton Law Review, it will be stripped of its identifying information and posted to a secure, password-protected website. Access to this website will be limited to professors of any discipline at any recognized university who request access, all members of the journal (including associate editors), and alumni of the journal. Readers will have the option of browsing articles by subject matter or by keyword, and also will have the option to receive direct email alerts for new articles in certain fields. All readers may submit comments about the articles, which can be as detailed or as frequent as the reader desires. No anonymous comments will be allowed, as the reviewer’s name will be automatically added to every comment he or she submits. Additionally, the content of each comment will be only accessible by the editorial board of the Wharton Law Review, so incoming readers will not be able to see what else has been written about a pending article. Any author may opt out of the Peer-Assist system at his or her discretion, in which case that author’s submission will be reviewed by the editorial board alone. Ideally the Peer-Assist system will include academics from outside the field of law, so that an expert on, say, economics or philosophy can weigh in on cross-disciplinary articles.
It is important to remember that the comments solicited through the Peer-Assist system are simply a tool to aid the editorial board of the Wharton Law Review in its publication decisions. The students of the editorial board will retain final decision-making power over all articles, and will have the option to accept or reject an article at any time, regardless of the feedback received from Peer-Assist.
ii. Benefits of Peer-Assist
The potential benefits of the Peer-Assist system are enormous. The editorial board of the Wharton Law Review would receive guidance from scholars with more experience and more knowledge about specialized subject areas. This would presumably lead to the journal selecting higher-quality articles than a student-edited system alone, while also educating the editorial board to the responses a particular piece garners from other academics. The comments also would give the editorial board ample fodder for potential response pieces or shorter debates, such as the ones that the University of Pennsylvania Law Review currently publishes on its PENNumbra website.
Associate editors on the Wharton Law Review also would have much to gain from the Peer-Assist system. With access to the Peer-Assist database, associate editors would be exposed to a representative sample of the current state of legal academics. Associate editors would have the same ability to comment on articles that professors enjoy. Additionally, the Wharton Law Review can require associate editors to submit substantive comments (similar to a response paper) on a certain number of articles in the Peer-Assist database. This would expand the role of the associate editor into more substantive fields while also increase morale and feelings of involvement on the journal. These voluntary comments or mandatory response papers facilitate the educational training function of the journal, give the editorial board another perspective on the merits of a given article, and provide an excellent barometer of an associate editor’s willingness and analytic abilities, which will aid in third-year selection for the editorial board.
In effect, Peer-Assist takes the benefits that are usually reserved for Articles Editors (including the critical reading of and exposure to many articles) and makes them available to all members of the Wharton Law Review.
At the same time, we believe Peer-Assist represents the best of both worlds for faculty members. The Wharton Law Review can still afford to make relatively rapid publication decisions, but professors will take some comfort in knowing that their articles were reviewed by more than just the students on the editorial board. We also hope that the adoption of Peer-Assist will encourage academics from disciplines other than law to publish in the Wharton Law Review. These professors expect some measure of peer supervision and we hope that they will consider Peer-Assist to be a sufficient substitute, especially when balanced against the benefit of a substantially quicker turnaround time than traditional peer-review.
We believe that Peer-Assist also can be a boon for Penn Law School. If the system is successful, the law school will be viewed as a trailblazer. Even if Peer-Assist is not successful in the long run, Penn will be viewed as an innovator. Several of the law professors who were kind enough to provide advance feedback were so intrigued with the idea that they sought to mention it to their peers, and others asked to blog about it. Regardless of the outcome, Penn’s attempt to improve the journal structure will be noticed throughout the legal academy.
We recognize that Peer-Assist represents a large departure from the traditional article selection process, and while most of our commentators agreed that the idea was good in principle, there were several recurring criticisms. The most common was the concern that professors across the country have little incentive to give their time to a seemingly random journal. We believe this incentive problem can be alleviated with the offer of tangible benefits to particularly helpful or prolific commentators. These incentives can include automatic expedited review of articles, off-cycle review of articles, membership on a Board of Advisors or similar honor, free subscriptions to the Wharton Law Review, or, budget permitting, a monetary incentive.
A second common critique concerns the faculty reviewers themselves. Some professors worried that the reviewers would give good reviews of their colleagues’ articles in a quid pro quo arrangement, and that these reviews would unduly influence the article selection process. This problem assumes that the editorial board of the Wharton Law Review would be unable to distinguish legitimate criticism from puffery. It is our belief that the editorial board is capable of making these judgments, as distinguishing a good argument from a bad one is what Articles Editors already do. It is an important part of the learning process, and Peer-Assist will simply create another avenue for that skill to be developed. Additionally, we presume that the editorial board of the Wharton Law Review will naturally give more weight to objective comments (e.g. “This argument is pre-empted by X paper,” or “The mathematics in this piece are flawed”) or well-reasoned subjective comments as opposed to comments offering unsupported praise or criticism.
A third and final common criticism of Peer-Assist is that the readers may not be sufficiently qualified to give informed commentary. Peer-Assist will open up the peer-review process to all academics, not just the pre-selected ones that populate traditional peer-reviewed journals. This does present a greater risk of relatively less-qualified commentators, but we believe that the market effects of the Peer-Assist system will outweigh the risk. It is also quite likely that readers will only comment on articles within their field of interest, whereas the current student-edited system relies on only a handful of third-year law students to critique articles in a wide array of fields. Informed commentary from a professor would be a good addition.
3. Localized Peer-Assist
Many of the potential problems of the full Peer-Assist system can be mitigated by adopting what we refer to as “Localized Peer-Assist.” Instead of granting access to all academics, Localized Peer-Assist would give access to the Peer-Assist database only to professors at Penn, and would allow those professors (or the editorial board of the Wharton Law Review) to nominate professors at other institutions. This would allow the network to grow organically, admitting only academics who are interested in spending time to review articles and who are deemed qualified by the editorial board. We also envision adding functionality to the system to allow any authorized reader to forward a given article to any other academic on an ad hoc basis. For example, if a Penn professor was reading a business article that included statistical analysis, that professor could forward the article to a colleague elsewhere with a technical background and ask him or her to ensure that the methods used were satisfactory.
Localized Peer-Assist solves the major potential problems with Peer-Assist. Reader quality is no longer an issue so long as the Wharton Law Review screens those outside of the Penn community who will be given access. A limited pool such as this also minimizes the potential for reviewer puffery. Lastly, the incentives devised for the complete Peer-Assist program still can be used for Localized Peer-Assist, with the additional hope that professors will be more inclined to participate when it is their own school’s journal requesting their assistance.
In light of the smaller pool of reviewers, it would be possible to restrict usage of Localized Peer-Assist until an article passes an initial screening by the editorial board, who would still retain the ability to make the final decision on publication. As in regular Peer-Assist, students and alumni also would retain access to the database. Localized Peer-Assist foregoes the market effects of full Peer-Assist, but eliminates many of the potential problems. In effect, it simply formalizes a faculty review system that some student-edited law reviews have already adopted, except on a larger scale.
4. Student Peer-Assist
Our third and final conception is what we call “Student Peer-Assist.” This consists of the same structure as regular Peer-Assist, only limited to the student members of the Wharton Law Review. Student Peer-Assist preserves all of the educational advantages of Peer-Assist with virtually no downside. All members of the Wharton Law Review, including associate editors, would have the ability to read and comment on all of the submitted articles, thus exposing them to a broad swath of current legal scholarship. Student Peer-Assist allows for the Wharton Law Review to give a significantly more substantive educational experience to its members, which we believe will be valued by the student editors themselves and by the law school administration. The editorial board also gets the benefit of dozens of additional people reading over articles before they are selected.
Student Peer-Assist adopts a system that has been adopted by a handful of other student-edited law journals, including notably the Harvard Law Review. We believe that Student Peer-Assist offers virtually no downside and has the potential to improve morale and involvement of associate editors on the Wharton Law Review, as well as provide a significant educational benefit to all members of the journal.
The selected essays will be included in an Oxford University Press book to be published next year.
“Too often opposing advocates talk past each other,” said Paul Robinson, lead editor of Criminal Law Conversations. “You could say that this brings peer review to legal scholarship but it’s more like peer-in-your-face.”
Robinson with co-editors Ferzan, and Stephen Garvey, are guiding professors in a 10-month online effort in which, so far, 120 scholars are participating. They are nominating several dozen scholarly works for discussion, based on the relevancy and compelling nature of the pieces. The author of a nominated work will produce a 4,000-word core text that summarizes his or her thesis, to which four to 10 scholars will then write 800-word criticisms. The original author will reply to the critiques, with these “conversations” making up the published book. ...
The response has been so positive, Oxford University Press is considering applying this model to other areas of the law and other fields of scholarship.
Thursday, May 08, 2008
Unlike libertarians, paternalists do not place nearly as high a premium on true freedom of choice. This should not come as a surprise, since the very philosophy used to justify paternalist policies is that individuals often do not know what is best for themselves, and thus a more enlightened third party should take their choice away and make the "right" decision for them. Therefore, paternalists may not be concerned if employers, educational institutions, or other third parties coerce adults into self-binding programs for their own good.
But is the third party coercion that may result from a libertarian paternalist regime actually consistent with paternalist principles? One must look at the movies of these third parties to determine whether they are truly acting in a paternalist fashion. Liberty University, for instance, appears to have created its rules for a purpose other than helping adults make the right decisions, stating that it has instituted its honor code to "promote a positive Christian community," and one would expect this same rationale to apply if the state of Virginia created a self-binding tobacco criminalization regime and Liberty required its students to opt-in. Though Liberty University may ultimately force its students to make the "right" decision through its actions, one cannot say that Liberty is actually engaging in paternalism, for in such a scenario Liberty would be primarily furthering its own interests rather than those of its students.
Potential coercion in the employment setting, however, provides an even stronger example of how the practical effects of libertarian paternalism may be inconsistent with the ideals of paternalism. As the Georgia gun situation demonstrates, businesses, as profit-maximizing entities, will generally place profitability over ideology or other concerns when making business-related decisions. The Georgia businesses in question--many of whom sell guns in their stores, and whose owners may themselves believe in the right to bear arms--have not banned their employees from keeping guns in their parked cars because of anti-gun animus or a belief that they are helping their employees make the "right" decision, but because insurance companies charge significantly higher premiums when employers allow this practice. Likewise, insurance companies do not charge employers these higher rates out of animus or a desire to help businesses and their employees make "smart" choices, but because their research has shown that businesses that allow guns provide a greater risk than the general population of businesses and thus must pay higher premiums to ensure that the insurance company remains profitable.
In the gun case, as well as a hypothetical smoking or gambling self-binding program, employers and their insurers would coerce employees into certain decisions not because they are enlightened decision makers, but because their own self interests require it. Though employers and insurance companies acting in their own self interests may result in outcomes that overlap with the actual best interests of employees, the process is not consistent with paternalist ideology, which assumes a benevolent, enlightened third party whose primary objective is furthering the interest of those who, for whatever reason, are unable to make the best decisions for themselves. For this reason, libertarian paternalism is not consistent with paternalist values or ideals.
Tuesday, April 15, 2008
The basic idea is that private and public institutions might choose approaches that a) fully maintain freedom of choice (and are in that sense libertarian) but b) gently steer people's decisions in directions that will make their lives go better by their own lights (and are in that sense paternalistic).The New York Times has even more succinctly summed up the concept as "[y]ou know what's best for you, and we'll help you do it," with the government adopting policies to "nudge [people] in the right direction." Perhaps the most high profile, and controversial, examples of this involve self-binding schemes such as those adopted in Michigan and Missouri, which allow individuals to voluntarily place themselves on casino gambling blacklists, with state governments then enforcing those voluntary bans by criminally prosecuting violators and confiscating their winnings. Proponents of the libertarian paternalist approach have advocated adopting such self-binding schemes to solve a wide range of other issues, including combating cigarette and alcohol consumption.
For a variety of reasons, I disagree with Professor Sunstein that libertarian paternalism--at least in the form of self-binding schemes--are viable vehicles to address these issues. This post, however, will focus on whether libertarian paternalism actually maintains freedom of choice or otherwise promotes libertarian values.
Libertarians such as Jacob Sullum and myself oppose governmental bans on smoking and other vices on philosophical grounds. As Sullum observes in his book, such bans are "an odious intrusion by the state into matters that should remain private." Essentially, Sullum and other libertarians believe that adults are well aware of the dangers involved in smoking, gambling, and similar activities, but "for the sake of pleasure, utility, or convenience" have chosen "to accept the risks."
Libertarian paternalism as formulated by Sunstein acknowledges the veracity of this perspective, and recognizes that the government should not eliminate an adult's freedom to engage in risky behavior, even when such choices may not result in what the government perceives as the ideal outcome. But do self-binding programs--for instance, a system that would allow an individual to place himself on a tobacco blacklist in perpetuity--truly preserve the libertarian value of freedom of choice? I argue that they do not.
Proponents of libertarian paternalism wrongly assume that government provides the only constraint on adult behavior, and thus an individual who opts-into a system where smoking, gambling, or other vices are criminalized has done so because his present-self wishes for the government to control his future-self by placing constraints on his behavior. But this framework fails to consider the role of powerful third parties--such as an individual's employer or educational institution--who often wield enough influence to coerce individuals to sign away their legal rights.
There is no doubt that these third parties already place significant limitations on an adult's legal rights in a number of contexts. Liberty University, for instance, considers use of tobacco products as a violation of its honor code, which can result in fine, reprimand, and--if enough reprimands are accumulated--suspension or even expulsion. In the employer context, the National Rifle Association and other advocacy groups have recently drawn attention to many large Georgia employers, such as Wal-Mart, that forbid their employees from keeping guns in their parked cars while at work.
Such limitations on legal rights by educational institutions and employers are not significantly obtrusive or reduce freedom of choice to a great extent. After all, a cigarette smoker does not have to enroll in Liberty University, and even if subjected to reprimand such an individual can transfer to another school, one where he would retain the right to use tobacco products off-campus. Similarly, an employee who runs awry of Wal-Mart's gun ban may seek employment elsewhere--and in the worst case scenario, at least has the opportunity to choose unemployment and keeping a gun in one's car over employment and leaving a gun at home.
But libertarian paternalism programs create a danger of those same third parties curtailing an individual's freedom in perpetuity. Liberty University, for instance, may require as a condition of enrollment that a student opt-into a system where possessing tobacco is illegal and subject to criminal prosecution, even long after a student has separated from the college. Perhaps more significantly, large groups of third parties, such as employers, may require such opt-ins as a condition of employment, thus forcing individuals to give up activities such as gambling forever if they wish to earn a living in a given state. In effect, employers, schools, and other third parties would outsource enforcement of their internal policies to the state--hardly a libertarian concept.
The faults with the libertarian paternalist philosophy are not limited to libertarian paternalism's fundamental tension with libertarian principles. In my next blog post, I will argue that libertarian paternalism is also not consistent with paternalist principles.
Anecdote: When in Mumbai, I was told that the city was toughing up on obese policemen. As an incentive for the force to lose weight, the government was offering a cash reward to anyone who submitted a photo of a fat policeman. Motivated to do my part for society, I tried to take a picture of a rather big-boned copper. He won't let me.
Please don't get me wrong. All of this online participation is unquestionably useful and fun and enriching to our common digital culture. It is an invaluable way to share and build upon knowledge. No doubt about that. But I can't help imagine that as we approach total lifecasting, it could be that in the future, municipalities won't need to install security cameras. All of us will be pitching in already. We'll be streaming in family picnics and neighborhood snapshots into some grand searchable geotagged database. Then some upright netizens (us again) will comb the results for any noteworthy sightings. And once they're found, we'll go report them to the nearest overweight cop.
- Tracking Transience Hasan M. Elahi's copious documentation of "20,000 images stretching back three years...posted copies of every debit card transaction, so you can see what he bought, where, and when...the perfect alibi."
Tuesday, April 08, 2008
For anyone that mourning the death of slide rulers, dry your eyes because the OITP Copyright Slider is alive and on the market!
While the slider vaguely recalls the horrendous Mathland modules I suffered through in Department of Defense Dependents Schools, it does indeed seem like a useful tool for establishing the year in which copyrighted works (in the US) enter the public domain.
I personally am often befuddled by all these term extensions and multiple international harmonization treaties, so this copyright geek tool from the Office for Information Technology Policy might indeed be worth the $5 investment.
"This single, sturdy product provides instant access to copyright laws and guidelines. Simply align the arrows by date of publication and determine a work’s copyright status and term. And the “Permission Needed?” box provides a quick answer to this very important question."
Wednesday, March 26, 2008
He's right, of course, but for the love of God, do not do this. Just. Don't.
Tuesday, March 25, 2008
Monday, March 24, 2008
Every day when you prepare to the leave the house, you are confronted with a decision that market analysts and designers drool over, namely, what items do you take with you out of the house?
Let's model this. Presumably you have already in your life accumulated an impressive array of objects. They may fill a whole house, a small apartment, or even just a suitcase. But everyday, from that vast collection, you only really consider taking a small percentage of the objects with you out the door.
And from that small percentage that receives consideration, there is an even smaller number of objects that actually make the cut and wind up on your person or in your bag. Moreover, during the course of the day, an even more select number of items are actually used. These objects, these elite chosen few, are objects of vast interest, not only to handbag designers and the like, but also for anyone interested in understanding human nature.
Maslow's hierarchy of needs, namely food, shelter, and security. Keys are your path to shelter (and in some contexts, transportation), money is your answer to food, and a mobile phone provides a link to friends and family, basically the people you can rely on in moments of distress.
Now this is where the holy trinity really gets interesting. If we are always carrying the minimum three objects, would it be possible to develop just one device that could serve the function of three? Could we have one device that replaces keys, money, and phone?
Ok, we already know that mobile phones are already the tool of the 21st century (pdf). In some countries, for example, minutes on a mobile phone can be sent to another phone, and in this manner bartered, traded, or shared like cash. In these cases, mobile phone operators can function as human ATMs, payroll services, distribution points for charity (i.e. Pyramid of Peace), and invaluable source of news. Here two objects from the trinity, money and phone, have already become intertwined.
As a matter of fact, phone/money mash-ups are ubiquitous in Japan and South Korea. For example, many of you are probably are familiar with the new barcode systems that offer unlimited possibilities to link internet services (including online banking and Paypal) to “real-world” actions, like vending machine purchases or ordering a Big Mac
All the remains in the convergence of the holy trinity is the key/phone integration. This convergence could come in the form of a lock system whose keys can also be stored in a phone. Such a technology is not hard to imagine. There are already quite a few systems that rely on electronic or digital keys, and rigging a phone to unlock these locks no doubt won't be too much of an engineering hurdle.
I am very grateful to Jim Chen for his encouraging invitation to join this blog, First Movers. Jim has been a wonderful muse and has really motivated me get my typing fingers in action and start posting. I already do a good bit of typing with Creative Commons International, for whom I help manage jurisdiction projects worldwide as part of the international license porting process. It must be said here, however, that all the content I contribute here is my personal opinion and not a reflection of Creative Common's opinions or intentions.
I am based in lively city of Berlin but grew up in Heidelberg, Germany. I attended Mount Holyoke College, where I majored in Critical Social Thought and wrote my thesis on authorship, originality, and the development of American copyright law.
I am looking forward to First Movers and getting to know my co-contributors. Thanks again for having me, and happy reading!
Jill makes a good point about the identification issue. I don't find AK47's "I was just talking generally about Jills... not that Jill" to be very persuasive.
What I do find persuasive is the argument that the claims themselves -- at least with regard to AK47 -- lack any legal foundation.
I have no sympathy for AK47. If I take off my "uphold and defend the constitution" hat, I too want to see him outed and roughed up. But I can't remove that hat. Therefore, while I want to see him outed, I don't want to see it happen this way.
Outing an anonymous speaker should be subject to a reasonable standard. The case law so far seems to be developing along just such a standard: Show that you have a real cause of action with some likelihood of success before unmasking someone, no matter how disgusting their speech may be.
In fact, this very issue reared its head on the Feministe blog in the past.
Naturally, Zuzu's speech is hardly to be compared to AK47's speech. The first is intelligent and informative, yet her reasons for wishing to remain anonymous are similar to AK47's.
She wishes to avoid harassment for her views, which are not quite mainstream. I think that she should be proud of what she's wirtten, but that is legally irrelevant.
The latter (AK47) is just a little boy who thought that he could wear a klan hood and that would keep his identity secret.
Nevertheless, when it comes to free speech, we have to turn off our taste buds. Yes, that is quite difficult when we are looking at speech that turns our stomachs. Of course, I see evidence that Jill agrees:
I do have sympathy of the argument that people shouldn’t be outed for making anonymous comments on the internet. And of course I believe that free speech rights apply anonymously online as strongly as they apply in “real” life. Identifying anonymous internet commenters can have a real chilling effect, and I don’t think that people deserve to be outed simply for saying things that others don’t like — even if those things are sexist or racist or offensive.
But back to the main point -- is the underlying suit meritorious enough to validate a request to unmask an anonymous speaker? With regard to AK47's speech, I think not. That doesn't mean that the plaintiffs don't have a right to gripe -- I just see zero legal support for their claims. There are lots of nasty, mean, and brutish things that people do to each other, which have no legal remedy. This is one of them.
If the court disagrees, so be it. Then AK47 should be legally unmasked. But based on both parties' filings, I'm just not persuaded that the claims have any legal validity.
So what should be done?
Should AK47 "get away with it?" No, I'm not advocating that. I say "go get him!"
A smarter way to handle this would be through private action. A few weeks ago, a lawyer offered a $15,000 bounty for the identity of the author of the Patent Troll Tracker blog. I saw no legal basis for that unmasking, but if someone wanted to rat him out for $15k, I saw nothing wrong with that either. FYI -- it worked.
Why doesn't Feministe offer a reward for the identities of some of the worst posters? The Feministe blog seems to have lots of fans, most of whom agree that at least some of these trolls should be outed. Pass the hat, create a reward fund, and watch AK47's friends turn on him. Then you can splash his name from one end of the Internet to the other, and let society (and future employers) judge him for his speech.
That method would
- not create bad precedent that could cause unintended consequences,
- preserve the First Amendment, and
- be a lot more fun.
Should Jill take my suggestion, I pledge $100 to start the fund.
Katherine Y. Barnes, Is Affirmative Action Responsible for the Achievement Gap Between Black and White Law Students?, 101 Nw. U. L. Rev. 1759 (2007)
And of course....
David Schraub, When Separation Doesn't Work: The Religion Clause as an Anti-Subordination Principle, 5 Dartmouth L. Rev. 145 (2007) [note the pagination is wrong in the PDF].