May 4, 2012

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The George Washington Law Review, Issue 80:3 (April 2012)

posted by George Washington Law Review

The George Washington Law Review, Issue 80:3 (April 2012)

(Contents of current and past issues are available from our website.)

Articles:

Allen Rostron, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, 80 Geo. Wash. L. Rev. 703 (2012) [PDF]

Andrew A. Schwartz, The Perpetual Corporation, 80 Geo. Wash. L. Rev. 764 (2012) [PDF]

Sarah Tran, Administrative Law, Patents, and Distorted Rules, 80 Geo. Wash. L. Rev. 831 (2012) [PDF]

Notes:

Sam Cowin, You Don’t Have Mail: The Permissibility of Internet-Use Bans in Child Pornography Cases and the Need for Uniformity Across the Circuits, 80 Geo. Wash. L. Rev. 885 (2012) [PDF]

Scott A. Gilmore, Immunity Disorders: The Conflict of Foreign Official Immunity and Human Rights Litigation, 80 Geo. Wash. L. Rev. 918 (2012) [PDF]

Cyrus Zarraby, Regulating Carbon Capture and Sequestration: A Federal Regulatory Regime to Promote the Construction of a National Carbon Dioxide Pipeline Network, 80 Geo. Wash. L. Rev. 950 (2012) [PDF]

  May 4, 2012 at 3:39 pm   Posted in: Uncategorized   Print This Post   Comments (0)

May 3, 2012

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Please Make Room for the Stateless Superrich

posted by Frank Pasquale

A recent panel at the Milken Institute decried a grave injustice. Jeff Greene, a billionaire real estate investor, noted that a single mother who weighed “over 300 lbs” received welfare of about $600 a month. “She could barely take care of herself, much less her kids,” lamented Greene. The redoubtable Niall Ferguson swiftly summed up the problem:

Why, he wondered, was Greene letting this lady off the hook? Why doesn’t she get up off her fat lazy butt and get a job?!, he demanded, with his Scottish brogue in full Braveheart mode. “Taking from the successful and giving from the unsuccessful.”. . . Loud applause ensued from the Wall Street-friendly crowd, most of whom paid several thousand dollars for a conference ticket.

Contrast the target of Ferguson’s wrath with the “stateless superrich,” whose “second, third, or fourth homes” are often vacant as they “spend a few months in St Moritz, before moving to their trophy mansion in London, and then on to their luxury villa in Sardinia for the summer months.” Some worry that “their children will become indolent spongers, who will blow their inheritance ‘recklessly and lose their ambition or even their health.’” But they tend to employ “legions of charge-by-the-hour gurus” who can help make crucial decisions about, say, “how to divvy-up seven properties between three” heirs. That is job creation par excellence.*
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  May 3, 2012 at 3:46 pm   Posted in: Disability Law, Law and Inequality   Print This Post   Comments (2)

The Yale Law Journal: Volume 121, Issue 7 (May 2012)

posted by Yale Law Journal

Volume 121, Issue 7
May 2012

 

ARTICLE

Richard M. Re & Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments,

 

ESSAY

Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers

 

FEATURES

Bruce E. Cain, Redistricting Commissions: A Better Political Buffer?

Christopher S. Elmendorf & David Schleicher, Districting for a Low-Information Electorate

Joseph Fishkin, Weightless Votes

 

NOTES

Barrett J. Anderson, Recognizing Character: A New Perspective on Character Evidence

Nicholas M. McLean, Cross-National Patterns in FCPA Enforcement

 

COMMENT

Margaret B. Weston, One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement

  May 3, 2012 at 8:56 am   Posted in: Uncategorized   Print This Post   Comments (0)

May 2, 2012

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Hey Look at Me! I’m Reading! (Or Not) Neil Richards on Social Reading

posted by Deven Desai

Do you want everyone to know what book you read, film you watch, search you perform, automatically? No? Yes? Why? Why Not? It is odd to me that the ideas behind the Video Privacy Protection Act do not indicate a rather quick extension. But there is a debate about whether our intellectual consumption should have privacy protection, and if so, what that should look like. Luckily, Neil Richards has some answers. His post on Social Reading is a good read. In response to the idea that automatic sharing is wise and benefits all captures some core points:

Not so fast. The sharing of book, film, and music recommendations is important, and social networking has certainly made this easier. But a world of automatic, always-on disclosure should give us pause. What we read, watch, and listen to matter, because they are how we make up our minds about important social issues – in a very real sense, they’re how we make sense of the world.

What’s at stake is something I call “intellectual privacy” – the idea that records of our reading and movie watching deserve special protection compared to other kinds of personal information. The films we watch, the books we read, and the web sites we visit are essential to the ways we try to understand the world we live in. Intellectual privacy protects our ability to think for ourselves, without worrying that other people might judge us based on what we read. It allows us to explore ideas that other people might not approve of, and to figure out our politics, sexuality, and personal values, among other things. It lets us watch or read whatever we want without fear of embarrassment or being outed. This is the case whether we’re reading communist, gay teen, or anti-globalization books; or visiting web sites about abortion, gun control, or cancer; or watching videos of pornography, or documentaries by Michael Moore, or even “The Hangover 2.”

And before you go off and say Neil doesn’t get “it” whatever “it” may be, note that he is making a good distinction: “when we share – when we speak – we should do so consciously and deliberately, not automatically and unconsciously. Because of the constitutional magnitude of these values, our social, technological, professional, and legal norms should support rather than undermine our intellectual privacy.”

I easily recommend reading the full post. For those interested in a little more on the topic, the full paper is forthcoming in Georgetown Law Journal and available here. And, if you don’t know Neil Richards’ work (SSRN), you should. Even if you disagree with him, Neil’s writing is of that rare sort where you are better off by reading it. The clean style and sharp ideas force one to engage and think, and thus they also allow one to call out problems so that understanding moves forward. (See Orwell, Politics and the English Language). Enjoy.

  May 2, 2012 at 5:39 pm   Posted in: Anonymity, Privacy, Privacy (Consumer Privacy), Privacy (Gossip & Shaming), Technology   Print This Post   Comments (4)

A Tip on Writing Better Articles.

posted by Dave Hoffman

There’s tons of advice out there on how to get better placements for your academic writing.  Much of that genre holds writing quality constant or assumes it away.  But that’s silly.  Pat Rothfuss, one of my favorite fantasy authors and a former interviewee here at CoOp, has written a terrific column on how to avoid a mistake that bedevils first-time fantastists and junior scholars alike: excessive and ponderous vomiting of everything the author learned while preparing to write.  His diagnosis of the problem is lucid, and for fans of the genre, familiar:

“So here’s how it goes wrong.

1. You create something for your fantasy world: a creature, a culture, a myth, whatever.

2. You’re proud of your creation. You’re excited about it. You love it with a fierce love.

3. You need to describe this thing to your reader, because if they don’t understand how it works, your story won’t make sense.

(3b. Remember, the story is the real reason people are there. Story is everything. Story is god.)

4. So you start to explain how folks in the the Shire celebrate their birthdays. (This is important because one of the first major events of the book is a birthday party.) You talk about how hobbits give presents away at their parties instead of receiving them. (This is important because it ties into why Bilbo is going to hand over the ring to Frodo.)

Then you start talking about how some of these presents get passed back and forth, party after party. And how those items are actually called mathoms, and how there’s actually a museum full of mathoms at Michel Delving, which is in the Westfarthing of the shire, since, as you know, the Shire is composed of four sections which take their names from prominent families in the area, such as Tookland being named after the Tooks, who are among the largest and oldest of the Shire families, and in fact still held the title of Thain, which had been passed to them from the Oldbucks, and while the title was largely ceremonial these days due to the lack of Shire-moot in recent, peaceful times…. …

You see what happens? It’s easy for an author to get so caught up in the details of the world they created, that they go off the rails and give us more than is really necessary for the story.”

How many articles have you seen where an author provides multiple footnotes in each sentence of the introduction, each larding on another fact that the reader is compelled to digest?  Or first sections of articles that, in elaborate detail, tell you what the existing literature says.  Such articles are exhausting to even skim – it can be fifteen to twenty thousand words before we start to get a hint of the author’s unique contribution. We get it – you did your homework!

Follow the link to read Pat’s advice on how to avoid the problem.

  May 2, 2012 at 4:46 pm   Posted in: Law School (Scholarship)   Print This Post   Comments (4)

A Taxonomy of Federal Litigation

posted by Dave Hoffman

For the last two years, Christy Boyd and I, along with some friends, have been working on a paper on how attorneys construct complaints.  The project began when we were working to code some other detritus of federal litigation and decided to collect the causes of action in complaints to understand the legal issues in our cases in a better manner than NOS codes alone permitted.  Soon enough, we got to thinking that our causes of action were pled in distinctively patterned ways.  Obviously, this isn’t an earth-shaking insight, as most first year students have thought, at one time or another, that each of their classes’ exam fact patterns could easily substitute for any other.  That is: causes of action are alternative, mutually complementary, theories that channel a limited number of fact patterns into claims to legal relief.   Everyone knows that contract and tort claims are pled together, and that constitutional claims come accompanied by state law torts.  But we thought it’d be worthwhile to nail down this insight using a very similar analysis to the one that enables Amazon to tell you which books you might like — i.e., if you plead a particular cause of action, what other causes of action are you likely to bring in a particular case?

We gathered a set of 2,500 complaints (from a much larger sample of federal complaints derived through RECAP).  The complaints were sampled to be fairly representative of all federal litigation, excluding pro se, social security, and prisoner petition cases. The sample contained 11,500 individual causes of action – around 4.6 causes of action per case.  Guided by co-authors at Temple’s Center for Data Analytics, we used spectral clustering to examine the relationship between causes of action.  Two years later and presto, we’ve a (draft) paper is up on SSRN!  The ungainly title is Building a Taxonomy of Litigation: Clusters of Causes of Action in Federal Complaints. I welcome your comments, and your suggestions for a better title. Follow me after the jump for an exploration of our findings.

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  May 2, 2012 at 2:43 pm   Posted in: Empirical Analysis of Law   Print This Post   Comments (2)

May 1, 2012

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Will We Finally Have a la Carte T.V. Content?

posted by Deven Desai

The days of stopping someone from watching show X on a large T.V. but through and Internet device should be numbered. Google TV crashed. Fine, things fail. But the general blocking of content based on medium is a dying strategy. We are in stage 2 of the death of T.V., as we know it. Google, Apple, MS, Amazon, Netflix, fill-in-the-corp TV will live. HBO GO started to break from the pack and Hulu may be following. Why stage 2? HBO et al. are kissing up to cable. You have to authorize your content. In English, you have to prove you pay the cable company for your HBO subscription, Hulu, etc. before you can get it on demand for iPads etc. Here’s an example of silliness. A friend had a Hulu subscription but could not watch on his T.V. via a Roku player. The T.V. is simply a big monitor, and he could attach his computer. But the minds of Hulu thought “NO! Not on a T.V.!” The result was wondering whether to drop Hulu, not oh Hulu you’re so great.

Content should slip the TV versus computer snag soon. So, hello, Stage 3; thank you commodity cloud computing.

Customers want their content on demand. College students forgo cable fees, because they are so damn expensive and carry mainly crap they don’t want. Streams work for them, because they have the campus network. But many I know have cut the cable and gone to streaming only. And why not? Lower cost is clear. Plus, no one talks about whatever is today’s Friends at the water cooler because a #1 show is nowhere near as watched. Must see T.V.? Please.

I will bet that the demand for direct delivery of content will mean a new order for T.V. and film. As a technical matter, Ed Felten reminded me that asynchronous delivery of content poses problems. He knows far more than I. But consumers will want to buy (or direct subscribe to) content and will use the Internet to get that content. Producers like HBO will lead the way save for threats from cable companies. Assuming tensions in that sphere, someone will figure out how to leverage current network advances to store content cheaply, deliver it so that peaks are handled, and cable boxes will go the way of the DoDo.

In other words, why rely on cable for the menu of content? Cable’s value is the delivery of whatever content someone wants. The odd part is that I still subscribe to cable and will even watch a movie with commercials (Ocean’s 11 on TNT, Star Wars) when it is one rather than getting the DVD I own. But my way will die. I may abandon it too. And if the older folks stray, look out cable. The young ‘uns are already gone. More will follow. Then again the Lakers are on tonight. So maybe sports will save cable. Then again, sports teams own their cable stations when possible. Hey cable, say it with me: NBA, NFL, MLB, NHL on demand with a little ESPN for kicks?

  May 1, 2012 at 8:10 pm   Posted in: Culture, Cyberlaw, DRM, Intellectual Property   Print This Post   Comments (6)

Florida Law Review, 64:3 (May 2012)

posted by Florida Law Review

 

May 2012 | Volume 64, Number 3

 

Articles

Meghan J. Ryan, The Missing Jury: The Neglected Role of Juries in Eighth Amendment Punishments Clause Determinations

Andrew C.W. Lund, Compensation as Signaling

Abigail R. Moncrieff, Safeguarding the Safeguards: The ACA Litigation and the Extension of Indirect Protection to Nonfundamental Liberties

William W. Berry III, Practicing Proportionality

Jeremy A. Blumenthal, Expert Paternalism

R. George Wright, Electoral Lies and the Broader Problems of Strict Scrutiny

Notes

Jocelyn Ho, Bullied to Death, Cyberbullying and Student Online Speech Rights

Jacy Owens, A progressive Response: Judicial Delegation of Authority to Federal Probation Officers

  May 1, 2012 at 4:37 pm   Posted in: Uncategorized   Print This Post   Comments (1)

Billy Hunter and the Absurdities of U.S. Labor Law

posted by Brishen Rogers

(A guest post — with apologies for the lack of embedded links … I’m having internet issues).

As a former union organizer and labor lawyer, the nepotism allegations against Billy Hunter strike me as simultaneously depressing and absurd. Depressing because they remind me once again of the sad persistence of corruption within U.S. unions. Absurd because they highlight how today’s labor law seems like just another strategic resource in battles over product market rents, rather than a foundation for a more just economy and society.

A quick primer: Hunter, the Executive Director of the National Basketball Players’ Association (“NBPA”), allegedly employed family members directly, steered lucrative business to Steptoe & Johnson just as they hired his daughter as special counsel, and sought to have the NBPA invest millions in a failing bank where his son was a board member. Hunter himself is fantastically well paid by the NBPA, pulling down around $2.4 million per year. “There’s nothing illegal” has been Hunter’s less-than-compelling defense so far. He may be correct, though if such conflicts were not properly disclosed then he may be in violation of his fiduciary duties to the players and the union.

We’ll have to await more details — perhaps to be uncovered by the U.S. Attorney’s investigation — to understand why nobody called foul. Perhaps the NBPA Executive Board is captive to Hunter; perhaps they didn’t fully understand the transactions, either due to obfuscation or through their own lack of due diligence; or perhaps they understood fully but felt that such costs were worth bearing so long as Hunter delivered a strong contract.

While the NBPA is no ordinary union there may be some broader lessons here regarding union corruption.

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  May 1, 2012 at 10:50 am   Posted in: Uncategorized   Print This Post   Comments (1)

April 30, 2012

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Whoa, Just So Many Online Ed Resources

posted by Deven Desai

Like John Cusack in Better Off Dead when all songs seem to be about what is on your mind (see below), education seems to pop up everywhere I look right now. Well, why fight it? This link is to a host of online resources (HT: Esther Wojcicki). I listen to lectures while exercising. So far Berkeley has proven the best source for excellent lectures on philosophy (try Hubert Dreyfus, Wendy Brown, and Nathan Sayre (geography)). Some of the links take more work than others. Science.gov has a wealth of government studies etc., but you must hunt for what you want. In Property, Persona, and Preservation, I draw on Richard Lanham’s work to show that the ability to parse, sort, and organize is a source of value that can be seen in professors’ syllabi and other means of focusing attention. The list above sits in an odd place. It parses and sorts an array of options for online resources. Yet, the quality of the resources (how good and how easy to use) is not that clear. I’ll take the list and do some work, but in some possible future, a tool will do more to let me know which of this excellent list is most useful to various things one may want. Maybe a directory…paging Yahoo! white courtesy telephone. Or perhaps that whole search thing will evolve to read our minds, but only in the way we want. Well if I am in dreamland, I suppose I am still in Better Off Dead and about to hear Van Halen as burgers come to life.

  April 30, 2012 at 11:38 pm   Posted in: Education, Just for Fun   Print This Post   Comments (1)

Another Tip That Education Is Changing: Open Stax Textbooks

posted by Deven Desai

Costs of education need to come down. Open course materials are growing. Maybe education will indeed undergo a transformation in the next ten years. There are many things that will need to change for true education reform to take place. But better resources matter. Enter Rice University. Its OpenStax College initiative tries to address the problem of source fragmentation. In other words, resources, resources everywhere but no time to synch may be less of a problem than it has been so far. One nice touch is format flexibility: web, e-textbook, or hard copy options are available. “The first five textbooks in the series–Physics, Sociology, Biology, Concepts of Biology, and Anatomy and Physiology–have been completed, and the Physics and Sociology textbooks are up at openstaxcollege.org. The model is curious:

Using philanthropic funding, Baraniuk and the team behind OpenStax contracted professional content developers to write the books, and each book went through the industry-standard review cycle, including peer review and classroom testing. The books are scope- and sequence-compatible with traditional textbooks, and they contain all of the ancillary materials such as PowerPoint slides, test banks, and homework solutions.

So there is professional level seeding of content while also allowing for wiki-like contribution:

Each book has its own dashboard, called StaxDash. Along with displaying institutions that have adopted the book, StaxDash is also a real-time erratum tracker: Faculty who are using the books are encouraged to submit errors or problems they’ve found in the text. “There’s also the issue of pointing out aspects of the text that need to be updated,” notes Baraniuk, “for example, keeping the Sociology book up-to-date as the Arab Spring continues to evolve. People can post these issues, and our pledge is that we are going to fix any issues as close to ‘in real time’ as possible. These books will be up-to-date in a matter of hours or days instead of years.” When accessing a book through its URL on Connexions, students and faculty will always get the most up-to-date version of the book. Faculty can, however, use the “version control” feature on Connexions to lock in a particular version of the book for use throughout a semester.

If you thought that keeping up with authoritative versions of an ebook and citing it (trust me it is odd to cite to a location in a Kindle book) was messy, this new model will throw you. Then again, that is a small issue.

Group contributions for the latest on an issue and the ability to choose versions is a great idea. Law texts that could update the latest cases or a change in legislation as they happen and then be refined overtime would be wonderful. Of course teachers use other ways to reach these goals. But if crowds/commons style approaches to texts work, we may see better and less expensive versions of textbooks. How the system will mangage disputes about content and education boards’ issues with approval remains to be seen. Still, the promise of this approach should make the miasmic aspects of education boards look silly and create a press for improved ways to have quality content available for educators and most important, for students.

  April 30, 2012 at 8:41 pm   Posted in: Education, Intellectual Property, Teaching, Technology, Wiki   Print This Post   Comments (0)

The Yale Law Journal Online: New Summary Judgment Essays

posted by Yale Law Journal

The Yale Law Journal Online has just published three essays on the Supreme Court’s recent decision in Douglas v. Independent Living Center of Southern California, Inc. , No. 09-958 (U.S. Feb. 22, 2012), http://www.supremecourt.gov/opinions/11pdf/09-958.pdf (to be reported at 132 S. Ct. 1204). These essays are part of an ongoing series called “Summary Judgment,” featuring short commentaries on recent Supreme Court cases.

In Preemption as a Judicial End-Run Around the Administrative Process?, Catherine M. Sharkey uses Douglas to explore two important questions: first, “whether courts can act as ‘prompters,’ pushing federal agencies to discharge their duty to weigh in on potential conflicts between federal and state law”; and second, “whether a synergistic relationship can exist between courts and agencies in making such conflict determinations.” She finds that courts do engage in “agency-forcing” measures and that “Douglas only skims the surface of the potentially rich interface between the administrative process and preemption challenges.”

In Douglas and the Fate of Ex Parte Young, Stephen I. Vladeck examines Chief Justice Roberts’s sweeping dissent in Douglas to understand better the majority’s reasons for not deciding the question on which the Court granted certiorari. He concludes that Justice Kennedy may ultimately be sympathetic with the dissent’s approach but joined the majority to defer making the “momentous” decision to limit injunctive relief available to private plaintiffs under the Supremacy Clause.

Finally, in Medicaid Preemption Claims in Douglas Avert the Astra Abyss, Rochelle Bobroff discusses the relationship between Douglas and the Court’s little-noticed decision in Astra USA, Inc. v. Santa Clara County, 131 S. Ct. 1342 (2011). Both the majority and the dissent rely on this precedent, but they interpret it in strikingly different ways. Bobroff concludes that Douglas “does not prevent court access to enforce Medicaid, but the threat of the dissent’s interpretation of Astra still looms.”

Preferred citations:

Catherine M. Sharkey, Preemption as a Judicial End-Run Around the Administrative Process?, 122 YALE L.J. ONLINE 1 (2012), http://yalelawjournal.org/2012/04/30/sharkey.html.

Stephen I. Vladeck, Douglas and the Fate of Ex Parte Young, 122 YALE L.J. ONLINE 13 (2012), http://yalelawjournal.org/2012/04/30/vladeck.html.

Rochelle Bobroff, Medicaid Preemption Claims in Douglas Avert the Astra Abyss, 122 YALE L.J. ONLINE 19 (2012), http://yalelawjournal.org/2012/04/30/bobroff.html.

  April 30, 2012 at 6:17 pm   Posted in: Uncategorized   Print This Post   Comments (0)

The Yale Law Journal: Prison Law Writing Contest

posted by Yale Law Journal

  April 30, 2012 at 5:10 pm   Posted in: Uncategorized   Print This Post   Comments (0)

Innovation (as in Beer!) – The Punch Top Can and Lawsuits to Come

posted by Deven Desai

Yes! You can now shotgun a beer with less trouble and mess than before. I saw an ad for the new Punch Top can by Miller Light and couldn’t believe it. The claim is that the new hole is for a “smoother pour.” (see the ad below). Come on. This innovation is about shotgunnig beer. This post captures the snark

Now, it’s only been two years since the brand unveiled the “Vortex Bottle,” a seemingly useless and unnecessary bottle design feature that has somehow lasted 23 months longer than anyone expected. Undoubtedly, the success of the swirly bottle neck has influenced the powers that be at Miller Lite to carry over their brand of “science” to cans. I can only imagine what the supporting market research looks like: “In our study, seven out of 10 brospondants said that when they shotgun cans of cheap beer to the amusement and horror of their friends, they opt for Miller Lite. Of those that answered positively, four out of five said that they have been wounded by the jagged aluminum the occurs in the wake of puncturing the can with their car keys, which reportedly ‘hurts like a bitch.’”

Lawsuits ahead? Sure why not? 1. Campus and underage drinking events mean someone will get alcohol poisoning or get hurt after drinking from these cans. Of course as the industry says Drink Responsibly (and in the ad, “Great Beer, Great Responsibility (with a TM it seems, so don’t go talking about great responsibility even if you are Spiderman’s uncle or maybe Marvel will sue. Hey I found another lawsuit!); but they offered the tool, so go get ‘em. Oh and other shot gun tools are available just search for beer shotgun under images in Google for an example. 2. How about a patent suit? Maybe. It seems Coors tried this innovation path a couple years ago. OK not really. It was a joke as far as I can tell. But one comment said no one would do it. And now the joke is real.

Innovation, as in beer!

  April 30, 2012 at 3:40 pm   Posted in: Advertising   Print This Post   Comments (0)

April 28, 2012

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UCLA Law Review Vol. 59, Issue 4 (April 2012)

posted by UCLA Law Review

Volume 59, Issue 4 (April 2012)

Articles

Liability Holding Companies	Anat R. Admati, Peter Conti-Brown & Paul Pfleiderer	852
Congress in Court	Amanda Frost	914

Comments

The Cost of Price: Why and How to Get Beyond Intellectual Property Internalism	Amy Kapczynski	970
More Than Just a Formality: Instant Authorship and Copyright’s Opt-Out Future in the Digital Age	Brad A. Greenberg	1028
Reconciling Caperton and Citizens United: When Campaign Spending Should Compel Recusal of Elected Officials	Samuel P. Siegel	1076

  April 28, 2012 at 7:29 pm   Posted in: Administrative Law, Constitutional Law, Corporate Law, Intellectual Property, Law Rev (UCLA)   Print This Post   Comments (0)

Introducing Guest Blogger Frank Bowman

posted by Gerard Magliocca

I am pleased to welcome Professor Frank Bowman of the University of Missouri School of Law to the blog in May. Professor Bowman graduated from Harvard Law School in 1979 and was as a deputy district attorney, a prosecutor in the Criminal Division of the Justice Department, and the Deputy Chief of the Criminal Division in the Southern District of Florida.  He is one of the nation’s leading experts on sentencing, having served as Special Counsel to the United States Sentencing Commission and as the Academic Advisor to the Criminal Law Committee of the United States Judicial Conference.

Welcome Frank!

  April 28, 2012 at 2:30 pm   Posted in: Administrative Announcements   Print This Post   Comments (0)

Infrastructure can change how you think

posted by Tim Wu

Better late than never! Plenty of kind words about Brett’s book already. Let me add just a few thoughts on the achievement that Infrastructure is.

I think sometimes the books that end up being the most useful and enduring are the ones that lay out the basics. Richard Posner’s “Economic Analysis of Law” is the classic in this genre. In that book Professor Posner simply applied micro-economic analysis to every area of law and in doing so laid a foundation that changed almost everything.

Brett’s book is similarly, deceptively basic and foundational. But the fact is that if you take Infrastructure analysis seriously it can infect the way you think about almost anything. In fact, I would definitely count myself as an infected by Brett’s work in exactly this way. Once you become convinced that certain economic functions have a fundamental public component there is no going back.

Full disclosure: I’d already been infected by Brett’s work before reading his new book. But Infrastructure puts it all together in one place, in an easy-to-assign book. And Brett is arguably meant to be a book writer, it seems to suit him.

There are two areas where I wish the book had gone further. The first was in the Section on current debates. I feel I had a good sense of what Brett’s analysis means for Net Neutrality and intellectual property. But what about the treatment of apps by platforms, a raging debate in contemporary antitrust? What about search engine economics? What about something completely different, like healthcare? The book ends by saying readers by this point should have their own thoughts, but to be honest I wanted more of Brett’s.

Second, I wish I had a better sense of how exactly Brett’s work intersects with the debates surrounding scale economics, which have had a recent resurgence of importance in Antitrust enforcement. Infrastructure-providing firms are by nature going to be large. Sometimes very large, and sometimes monopolistic. Should we give up on competition in these areas? When to take seriously arguments of necessary scale? When to discount them? Does Brett envision a less competitive infrastructure layer, justified by the public benefits he describes?

Of course its unfair to speak of what’s not in a book, for no book can cover everything. So let me close by saying: read Infrastructure and you will never see the world quite the same again.

  April 28, 2012 at 10:41 am   Posted in: Book Reviews   Print This Post   Comments (0)

April 27, 2012

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Vanderbilt Law Review, Volume 65, Number 3 (April 2012)

posted by Vanderbilt Law Review

Vanderbilt Law Review, Volume 65, Number 3 (April 2012).

The Vanderbilt Law Review is proud to announce the publication of our April issue.

 

ARTICLES

David Fagundes & Jonathan S. Masur, Costly Intellectual Property, 65 Vand. L. Rev. 677 (2012).

Paul H. Robinson, Sean E. Jackowitz, Daniel M. Bartels, Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment, 65 Vand. L. Rev. 737 (2012).

Eyal Zamir, Loss Aversion and the Law, 65 Vand. L. Rev. 829 (2012).

 

ESSAY

Jill Elaine Hasday, Siblings in Law, 65 Vand. L. Rev. 897 (2012).

 

NOTES

Stephanie A. Kostiuk, After GINA, NINA? Neuroscience-Based Discrimination in the Workplace, 65 Vand. L. Rev. 933 (2012).

Mary Alexander Myers, Standing on the Edge: Standing Doctrine and the Injury Requirement at the Borders of Establishment Clause Jurisprudence, 65 Vand. L. Rev. 979 (2012).

Rachel A. Weisshaar, Hazy Shades of Winter: Resolving the Circuit Split over Preliminary Injunctions, 65 Vand. L. Rev. 1011 (2012).

Are you interested in writing a response to one of these pieces? Visit Vanderbilt Law Review En Banc for more details.

  April 27, 2012 at 3:47 pm   Posted in: Law Rev (Vanderbilt)   Print This Post   Comments (0)

Recognizing the Limits of Models and Empirics

posted by Brett Frischmann

In the book, I stress the limits of mathematical models and quantitative data in the infrastructure context because the models and data tend to be partial and distort by omission. The following footnote in the Conclusion captures my concern:

Economists strongly prefer to work with formal mathematical models and quantitative data, for good reasons, but this preference introduces considerable limitations. Among other things, this preference leads many economists to isolate a particular market or two to analyze, holding others constant and assuming them to be complete and competitive. This approach is highly distorting in the infrastructure context because infrastructure resources are often foundations for complex systems of many interdependent markets (complete and incomplete) and nonmarket systems. Economists may cordon off various nonmarket systems and corresponding social values because such phenomena are deemed to be outside the bounds of economics. (Recall the discussion in chapter 3 about such boundaries.) But to focus on markets and their interactions and ignore nonmarkets and relevant social values distorts the analysis of infrastructure, whether or not we label the analysis “economic” because it is within the conventional bounds of the discipline. Of course, many economists are well aware of these boundaries and the corresponding limits of their expertise and policy prescriptions. Nonetheless, these limits often are not apparent or well understood by policy makers and other consumers of economic analyses, and even when the limits are understood, there are various reasons why they may be disregarded — for example, ideology or political pressures.

J. Scott Holladay, an environmental economist, explained to me:

When conducting an economic valuation of an ecosystem, we are well aware of our limitations. In a valuation study, we identify environmental services and amenities that are valuable but cannot be valued via existing economic methods, and we may assign a non-numerical value to make clear that we are not assigning a value of zero, but when the valuation study is used by policy makers, those non-numerical values may effectively be converted to a zero value and the identified environmental services and amenities truncated from the analysis. Is that a fault of the economist or the policy maker?

To be clear, I do not assign fault to anyone. Rather, my aim is to examine the consequences of reductionism and shed light on the importance of what is often ignored (or truncated).

Now that the book is in print, I have gone back to this point—expressed in this footnote and elsewhere in the book—and wondered whether this will be something that readers find frustrating or illuminating. I have also started to puzzle about what to do about the problem, whether / how to develop better models and gather more and better data, etc. Any thoughts?

  April 27, 2012 at 2:25 pm   Posted in: Economic Analysis of Law, Infrastructure Symposium, Symposium (Infrastructure)   Print This Post   Comments (0)

If Infrastructure, then Commons: an analytical framework, not a rule

posted by Brett Frischmann

It is probably worth making it clear that, as I state multiple times in the book, my argument is not “if infrastructure, then commons.” Rather, I argue that if a resource is infrastructure—defined according to functional economic criteria I set forth in the book, then there are a series of considerations one must evaluate in deciding whether or not to manage the resource as a commons. Chapter four provides a detailed analysis of what resources are infrastructure, and chapter five provides a detailed analysis of the advantages and disadvantages of commons management from the perspective of private infrastructure owner (private strategy) and from the perspective of the public (public strategy). Chapters six, seven and eight examine significant complicating factors/costs and arguments against commons management.

After reviewing the excellent posts, it occurred to me that blog readers might come away with the mistaken impression that in the book I argue that the demand side always trumps the supply side or that classifying a resource as infrastructure automatically leads to commons management. That is certainly not the case. I do argue that the demand-side analysis of infrastructure identifies and helps us to better appreciate and understand a significant weight on one side of the scale, and frankly, a weight that is often completely ignored.  Ultimately, the magnitude of the weight and relevant counterweights will vary with the infrastructure under analysis and the context.

In chapter thirteen, I argue that the case for network neutrality regulation—commons management as a public strategy applied in the context of Internet infrastructure—would remain strong even if markets were competitive. In his post, Tim disagreed with this position.  In Tim’s view, competition should be enough to sustain an open Internet, for a few reasons, but mainly because consumers will appreciate (some of) the spillovers that are produced online and will be willing to pay for (and switch to) an open infrastructure, provided that competition supplies options. I replied to his post with some reasons why I disagree. In essence, I pointed out that consumers would not appreciate all of the relevant spillovers because many spillovers spill off-network and thus private demand would still fall short of social demand, and I also noted that I was less confident about his predictions about what consumers would want and how they would react. (My disagreement with Tim about the relevance of competition in the network neutrality context should not be read to mean that competition is unimportant. The point is that the demand-side market failures are not cured by competition, just as the market failures associated with environmental pollution are not cured by competition.)

In my view, the demand side case for an open, nondiscriminatory Internet infrastructure as a matter of public strategy/regulation is strong, and would remain strong even if infrastructure markets were competitive. But as I say at the end of chapter thirteen, it is not dispositive. Here is how I conclude that chapter:

 My objective in this chapter has not been to make a dispositive case for network neutrality regulation. My objective has been to demonstrate how the infrastructure analysis, with its focus on demand-side issues and the function of commons management, reframes the debate, weights the scale in favor of sustaining end-to-end architecture and an open infrastructure, points toward a particular rule, and encourages a comparative analysis of various solutions to congestion and supply-side problems. I acknowledge that there are competing considerations and interests to balance, and I acknowledge that quantifying the weight on the scale is difficult, if not impossible. Nonetheless, I maintain that the weight is substantial. The social value attributable to a mixed Internet infrastructure is immense even if immeasurable. The basic capabilities the infrastructure provides, the public and social goods produced by users, and the transformations occurring on and off the meta-network are all indicative of such value.

 

  April 27, 2012 at 2:04 pm   Posted in: Cyberlaw, Economic Analysis of Law, Google and Search Engines, Infrastructure Symposium, Symposium (Infrastructure), Uncategorized   Print This Post   Comments (1)

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