Wednesday, October 31, 2007

Penumbral Emanations, Free Speech, and Fred Phelps's Hate Speech

There's been a lot of buzz in the blogosphere about the recent multimillion dollar judgment in an IIED/defamation/invasion of privacy/etc. case on behalf of the family of a dead soldier whose funeral was disrupted by Fred Phelps's goons, a.k.a. the "God hates fags" slimebags. Most, though not all, of the buzz has been generally sympathetic to the plaintiffs' case, for obvious reasons. But I want to stake out a legal and a moral position to the contrary.

A General Theory of Penumbral Emanation.
First, permit to articulate a tentative theory of penumbral emanations. I think I may be the last person alive to believe in those things, and to think that Justice Douglas's opinion in Griswold made some sense. But that's as may be: I'm gonna run with it.

[[WARNING: this is a TOTALLY NEW IDEA for me, I dreamed it up a few hours ago, and it's entirely untested. It might be INCREDIBLY STUPID, or it might be OLD NEWS. If either of those things is the case, please alert me before I try to develop it any further. Thank you.]]

It so happens in legal practice that there are a variety of doctrines that seem to express an underlying deeper idea. So various constitutional provisions might express, say, an idea of privacy rights, or various free speech doctrines might express an idea of a general rule of free speech encompassing them. When we have that sense, there might be a parsimonious (or efficient) sentence that expresses the sense of that underlying idea. Think of it as an inductive generalization from the mass of individual rules, or as some kind of analogy to deriving utility functions from rationalizable patterns of choices.

It seems like we might fairly describe that sort of sentence as a "penumbra," or perhaps an "emanation" from the penumbra of the doctrines that it expresses. Thus, "Americans have 'freedom to associate and privacy in one's associations'" is one good example of a penumbra, which is a generalized statement of the rules of law Justice Douglas mentioned.

But once we get that kind of inductive generalization going, of course, we can make other statements as deductive conclusions from it and other premises. And this is where penumbral emanations have their bite: they give us a principled way to generalize from our discrete rules of law to underlying principles, and then use those principles to decide specific cases that aren't encompassed by our previous discrete rules.*


Penumbral Emanations and Free Speech in Private "Space"

I submit that the following penumbra efficiently expresses many of our legal doctrines. "The First Amendment provides a zone of protection against lawsuits by private individuals claiming that speakers on matters of public concern have invaded their legitimate private spheres with their messages." From what does that sentence emanate? Consider the following doctrines:

The Noerr-Pennington doctrine, immunizing government petitioning from many business torts.

The NYT v. Sullivan actual malice rule, protecting speakers on matters of public concern from lawsuits against people whose private lives and reputations became involved in the debate.

The Pruneyard doctrine, protecting speakers in many states from trespass liability or eviction for speaking on matters of public concern in many private physical spaces. (Also, Marsh v. Alabama and its progeny.)

The fair use doctrines in copyright and trademark law, protecting speakers from liability for speaking on matters of public concern (and otherwise) in private intellectual spaces.

The Legal and Moral Case Against Holding Phelps Liable for his Speech

If the penumbra I assert above is good, it seems pretty clear that the judgment against Phelps has some major legal problems. For just about every Big First-Amendment NoNo is implicated. No way is the judgment viewpoint neutral (let's face it, if people were carrying signs saying "support the war on terror," this judgment would never have happened -- and certainly wouldn't have been for so much money). The speech in question is unquestionably core political speech (assertions that the policy of the U.S. is morally wrong, and that soldiers who participate in it deserve moral condemnation and will receive divine condemnation). The usual outs to the First Amendment defenses to defamation law are not there (not only is there no actual malice, since on all evidence the defendants don't know the claims are false/aren't acting with reckless disregard, there might even be problems with the old-fashioned fact/opinion dichotomy).

All that's left is some sense that protesting a funeral is somehow particularly icky, such that we're willing to declare a "time, place, and manner" restriction. But allow me to suggest that a) Timothy Zick's argument is right-on with respect to the funeral issue, and b) our gut feelings about this are not viewpoint-neutral. Does anyone who would support a no-protest zone around a funeral really believe in their heart that people in support of the ideals for which the dead fought should be kept away? That people whose speech "respects" the dead should be kicked out? I have my suspicions to the contrary.

Now let's leave the law. Let's talk about morality and good policy. And I'll suggest that there are at least two really good reasons to be extra careful to protect this sort of speech, above and beyond the good reasons to protect all political speech.

First, the marketplace might really work here. As scum like Phelps and his goons engage in ever more offensive displays, more and more people are likely to repudiate them. They are likely to see the core of hate and irrationality that lies underneath his brand of Christianity, and they might even learn something about homophobia and other forms of bigotry that serves to make them more aware of and critical of their own and others less overtly wicked prejudices. This is really valuable for society as a whole.

Second (a claim borrowed from the lecture in the class I'm TAing, actually), it's not just a matter of speakers having a legitimate claim to physical space for their views. They might also have legitimate claims to intellectual space -- to attention for their views. Minority views -- highly, highly unpopular views -- might not ever get an audience at all unless they engage in offensive, attention-grabbing displays. Let's consider some less evil cases. Radical animal rights activists have been known to go about and throw blood on people wearing fur. Feminists sometimes bare body parts in public on various issues. Artists have gained attention by silly things like Serrano's "Piss Christ." I think we recognize, in those cases, that the offensiveness of the mode of expression is a vital part of the way the views (or artistic statements, or whatever) in question actually get out, and that they'd get out a lot less effectively without them. And we can see, where the views are less evil, that the offensiveness ought to be defended (at least part-way) for that reason. But if we're to be consistent and not to discriminate against views that we find evil, we must extend the same space to Phelps and his ilk.

It sucks, but that's the price we pay for an open society.

- - - -
* Expressed this way, of course, penumbral emanations are one angle to treat the ordinary way common law is made. A bunch of judges declare rulings in specific cases based, allegedly, on rules of law that are really full of tensions and ambiguities. Those cases then become a new body of law, and a judge at a later time reconciles a rule out of them. That rule appears in new cases and new situations. Repeat, ad infinitum.

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Poems For Today

I should have posted this last year:

On Being Twenty-six
by Philip Larkin


I feared these present years,
The middle twenties,
When deftness disappears,
And each event is
Freighted with a source-encrusting doubt,
And turned to drought.

I thought: this pristine drive
Is sure to flag
At twenty-four or -five;
And now the slag
Of burnt-out childhood proves that I was right.
What caught alight

Quickly consumed in me,
As I foresaw.
Talent, felicity—
These things withdraw,
And are succeeded by a dingier crop
That come to stop;

Or else, certainty gone,
Perhaps the rest,
Tarnishing, linger on
As second-best.
Fabric of fallen minarets is trash.
And in the ash

Of what has pleased and passed
Is now no more
Than struts of greed, a last
Charred smile, a clawed
Crustacean hatred, blackened pride—of such
I once made much.

And so, if I were sure
I have no chance
To catch again that pure
Unnoticed stance,
I would calcine the outworn properties,
Live on what is.

But it dies hard, that world;
Or, being dead,
Putrescently is pearled,
For I, misled,
Make on my mind the deepest wound of all:
Think to recall

At any moment, states
Long since dispersed;
That if chance dissipates
The best, the worst
May scatter equally upon a touch.
I kiss, I clutch,

Like a daft mother, putrid
Infancy,
That can and will forbid
All grist to me
Except devaluing dichotomies:
Nothing, and paradise.


Poem in October
by Dylan Thomas


It was my thirtieth year to heaven
Woke to my hearing from harbour and neighbour wood
And the mussel pooled and the heron
Priested shore
The morning beckon
With water praying and call of seagull and rook
And the knock of sailing boats on the net webbed wall
Myself to set foot
That second
In the still sleeping town and set forth.

My birthday began with the water-
Birds and the birds of the winged trees flying my name
Above the farms and the white horses
And I rose
In rainy autumn
And walked abroad in a shower of all my days.
High tide and the heron dived when I took the road
Over the border
And the gates
Of the town closed as the town awoke.

A springful of larks in a rolling
Cloud and the roadside bushes brimming with whistling
Blackbirds and the sun of October
Summery
On the hill’s shoulder,
Here were fond climates and sweet singers suddenly
Come in the morning where I wandered and listened
To the rain wringing
Wind blow cold
In the wood faraway under me.

Pale rain over the dwindling harbour
And over the sea wet church the size of a snail
With its horns through mist and the castle
Brown as owls
But all the gardens
Of spring and summer were blooming in the tall tales
Beyond the border and under the lark full cloud.
There could I marvel
My birthday
Away but the weather turned around.

It turned away from the blithe country
And down the other air and the blue altered sky
Streamed again a wonder of summer
With apples
Pears and red currants
And I saw in the turning so clearly a child’s
Forgotten mornings when he walked with his mother
Through the parables
Of sun light
And the legends of the green chapels

And the twice told fields of infancy
That his tears burned my cheeks and his heart moved in mine.
These were the woods the river and sea
Where a boy
In the listening
Summertime of the dead whispered the truth of his joy
To the trees and the stones and the fish in the tide.
And the mystery
Sang alive
Still in the water and singingbirds.

And there could I marvel my birthday
Away but the weather turned around. And the true
Joy of the long dead child sang burning
In the sun.
It was my thirtieth
Year to heaven stood there then in the summer noon
Though the town below lay leaved with October blood.
O may my heart’s truth
Still be sung
On this high hill in a year’s turning.



The Chestnut Casts His Flambeaux
-A.E. Housman

The chestnut casts his flambeaux, and the flowers
Stream from the hawthorn on the wind away,
The doors clap to, the pane is blind with showers.
Pass me the can, lad; there's an end of May.

There's one spoilt spring to scant our mortal lot,
One season ruined of your little store.
May will be fine next year as like as not:
But ay, but then we shall be twenty-four.

We for a certainty are not the first
Have sat in taverns while the tempest hurled
Their hopeful plans to emptiness, and cursed
Whatever brute and blackguard made the world.

It is in truth iniquity on high
To cheat our sentenced souls of aught they crave,
And mar the merriment as you and I
Fare on our long fool's-errand to the grave.

Iniquity it is; but pass the can.
My lad, no pair of kings our mothers bore;
Our only portion is the estate of man:
We want the moon, but we shall get no more.

If here to-day the cloud of thunder lours
To-morrow it will hie on far behests;
The flesh will grieve on other bones than ours
Soon, and the soul will mourn in other breasts.

The troubles of our proud and angry dust
Are from eternity, and shall not fail.
Bear them we can, and if we can we must.
Shoulder the sky, my lad, and drink your ale.


Spring and Fall
by Gerard Manley Hopkins


Margaret, are you gríeving
Over Goldengrove unleaving?
Leaves, like the things of man, you
With your fresh thoughts care for, can you?
Ah! as the heart grows older
It will come to such sights colder
By and by, nor spare a sigh
Though worlds of wanwood leafmeal lie;
And yet you wíll weep and know why.
Now no matter, child, the name:
Sorrow’s springs are the same.
Nor mouth had, no nor mind, expressed
What heart heard of, ghost guessed:
It is the blight man was born for,
It is Margaret you mourn for.



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Where Are the "Blawg" Reactions?

Adam Liptak reports on the Better Legal Profession Project that's being run by some students at Stanford Law. The idea is that the students are turning the tables on the law firms, and grading them for diversity.

The students are handing out “diversity report cards” to the big law firms, ranking them by how many female, minority and gay lawyers they have.

“Many of the firms have atrocious, appalling records on diversity,” said Michele Landis Dauber, a law professor at Stanford and the adviser for the project, called Building a Better Legal Profession. The rankings are athttp://www.betterlegalprofession.org/.

In Washington, no firm got an A. But seven scored in the D range, including Gibson, Dunn & Crutcher; Kelley Drye Collier Shannon; Baker Botts; and Mayer Brown.

The numbers were provided to a central clearinghouse by the firms themselves. “Our process is simple,” the student group said in explaining its methodology. “Cut, paste and rank.”

Firms in the top fifth received A’s, in the second fifth B’s, and so on. Overall grades were arrived at by averaging grades for partners and associates in five categories: women, blacks, Hispanics, Asians and gay people.

The students have ambitious plans, including asking elite schools to restrict recruiting by firms at the bottom of their rankings. They also plan to send the rankings to the general counsels of the Fortune 500 companies with the suggestion that they be used in selecting lawyers.

“Firms that want the best students will be forced to respond to the market pressures that we’re creating,” said Andrew Bruck, a law student at Stanford and a leader of the project.

Vikram Amar, a professor at Hastings College of the Law in San Francisco, added that law firms might well be violating employment discrimination laws in the process of trying to improve their rankings.

“As bad as their numbers are,” Professor Amar said of the firms, “the relevant applicant pool of law students with top grades is more white and Asian still.”

Whatever their consequences, the numbers the students have collected offer a fascinating snapshot of the profession.


Maybe I'm missing something in my quick reading of my RSS feeds (I do have work to do, even if I'm only a 27 year old graduate student), but a quick scan of some major and you'd-think-they'd-be-interested blogs shows no reaction from Concurring Opionions, PrawfsBlawg, or Workplace Prof Blog, and a link--but no commentary--from Feminist Law Profs.

What's up with that?!

Maybe I'm just been missing some of the reaction from a while ago--this project is by no means new, but Technorati is not revealing many blawg reactions other than the WSJ's. It'd be timely to bring up the discussion again, especially with this Liptak article, and especially because most campuses' OCIPs are only recently over.

I'd also be interested to know my MoneyLaw's perspective on this. Or how about Workplace Prof Blog's? There are potential employment discrimination issues, indeed.

I'll write a follow-up post of my own on outcome-oriented vs. process-oriented affirmative action programs, and which diversity programs are the "best practices" for organizations that have it as a goal, and whether any of this would violate Title VII. But first I'd like to call upon my fellow bloggers to write thoughts of their own. It seems rather silly to just note "oh how interesting, this turning of tables" and not really discuss the merits of the project or the implications for discrimination law, the reforming of the legal profession, and the inversion of power and hierarchy. I hate to say this, but Duncan Kennedy (or students thereof), where are you?

UPDATE:

Frank Pasquale informs me that he posted on this on October 10. Time for an update!

Paul Secunda responds here with typically good insights (and quip)

Rick Bales preempts me here, and I am abashed.

Eric Fink has a pithy comment here at DebrisBlog.

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Scary

(Warning: this is a vanity post)




Today is my birthday. Yes, I was born on Halloween. No, I do not do Halloweeny things. Halloween steals my thunder. Though it is an awesome, evil, carnivalesque pagan holiday, it means that I never get to celebrate my birthday on my birthday--my friends won't even celebrate it the Saturday before, because they always go to Halloween parties. So Halloween gets two bites at the apple, and steals twice my thunder. Last Friday I hosted a '90s themed pizza party set to '90s boy band music with Rice Krispy treats, blondies, and bowls of candy. It was very awesome, especially because I never had such a birthday party during the '90s. I never celebrated my birthday until I went to college. Asian families are not so big on birthdays, and mine was a poor, strict and Puritan, no-fun kind of Asian family. So now I celebrate birthdays unabashedly. It's nice, if age-affirming.

I don't know what is scarier: turning 27 years old, or you old fogey professor friends choking to death on your bagels upon learning that I am only turning 27 years old. Hey, I was alive (just barely) during Reagan's first inauguration. That's like the threshhold for Gen X, is it not?

I'm actually not quite so "young" anymore though--I used to be precociously young for everything--now I'm just at that right age, or even older than the average. It is all very strange to no longer be the outlier who didn't listen to that '80s band back in the '80s.

In many ways though, this is a different era for me: I'm entering my "late" twenties (the mid-20s are over, the early-20s are thankfully over). I'm entering that stage of life in which I should be pretty well on my way towards all the scary things that come with adulthood: a career, someplace to eventually settle down, someone to settle down with, a mortgage to pay, a household to build.

But thank goodness I'm only entering that stage. I'm not ready for it now. For now, I am happy to be a graduate student living in an awesome part of the country learning interesting things and new methodologies; just starting to write my own ideas and finding them surprisngly well-received; still having enough free time to pursue my hobbies; still just figuring things out, still having what kids these days call "fun."

It will end soon, I know that. Don't begrudge me for finding out later in life what most people have known all along: it's better to take things one day at a time. It's okay to enjoy the present interstitial state and not unduly worry that certain goals could/should have been accomplished by now. It's okay to not yet be completely an adult with the career, mortgage, and family. All in due time, and it will come soon enough, and perhaps sooner than I think or wish. It's okay to be here, for now. It's nice to celebrate your birthday and get presents. It is nice to have someone with whom to duck away from all the crowds and sugar-and-alchohol-buzzed madness, thumbing each other's noses at the thunder-stealing holiday.

But to ease you into the shock of my relative youth and naivete, I offer you a video from your generation.

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Tuesday, October 30, 2007

A Possibly Foolish Question on Larry Solum on Semantic Originalism

I've neither the time nor the expertise to discuss the extensive Legal Theory Blog post on semantic and normative originalism in any detail. This, then, ought to be seen more in the vein of a comment (as I am an inveterate blog commenter, but Solum's blog doesn't have a comment field), and particular question about which I'd like enlightenment.

To what extent is it the case that the choices within semantic originalism are non-normative? It seems to me that (a very small part of) the case for normative reductionism is a little stronger than Solum suggests, because the criterion for choosing sentence meaning in the context of determining legal principles is necessarily normative.

I take the part of Solum's argument with which I'm concerned to hinge on the idea that if speaker meaning is impossible, there's no normative choice to be made between sentence meaning and anything else: sentence meaning is all there is. And speaker meaning is impossible unless the speaker knows that the audience has knowledge of the speaker's intentions (Solum's "reflexivity condition"), a condition that does not apply to legal texts and in particular the U.S. Constitution.

[Caveat: I know very little about Grice's theory of meaning. I've basically skimmed some stuff of his and some secondary literature. So I may make major errors. Fortunately, this is the blogosphere, where errors are fine and dandy.]

It seems to me that the reflexivity condition makes the existence of speaker meaning weirdly audience relative in a troubling fashion. For surely the drafters of individual passages knew that their fellow drafters (i.e. the others in the room at the constitutional convention) knew their expressed intentions. It's only the broader audience that was supposed to be ignorant.

But that audience relativity might make it possible for there to be something *between* speaker meaning and sentence meaning. Imagine three people, A, B, and C. A utters a statement to B, fully satisfying the reflexivity condition as to B. (B knows what A meant, A knows that B knows what A meant, and we can even make it stronger and say that all of this is common knowledge all the way down.) Now suppose B transcribes what A said, and, unbeknownst to A, communicates it to C. And suppose C develops a plausible theory of what A meant when A uttered the statement to B. (Perhaps B communicated A's intention too, perhaps C simply engaged in a successful hermeneutic exercise.) Then C knows (or has a justified belief about) what A meant when A uttered the statement, but A didn't know it would happen. (I submit that the ABC model accurately reflects the interpretive universe of the U.S. constitution.) This is something more than brute sentence meaning, which claims no knowledge about the contents of the specific speaker's head except insofar as it matches the standard use of the words. But it's something less than fully reflexive speaker meaning.

That middle kind of meaning (call it transcribed meaning) might exist when speaker meaning does not. And so, even if speaker meaning is out the window, we're owed some kind of argument as to whether we make use of transcribed meaning or sentence meaning. And it seems that the argument we're owed has to be normative, for the distinction between speaker meaning and transcribed meaning is not about what the speaker meant by the statement, but what the speaker meant for us to get out of the statement. And intuitively, the reasons why we might want to respect or not respect that are normative ones. So perhaps (in Solum's terms) we might not have to choose between framers' meaning and clause meaning, but we have to choose between transcribed framers meaning and clause meaning.

There's so much more to discuss in that post, I might (or might not, time presses badly) discuss things further here. But that's a first thought, and hopefully not too foolish for all that.

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Monday, October 29, 2007

Teaching as Operant Conditioning of the Teacher

This year, I've started teaching a section of undergraduates for the very first time. There are two general schools of thought among academics about teaching. A) "Oh god, why do I have to put up with these children? I have research to do!" B) "I love their innocent little minds!" As noted earlier, I expected to find myself in category A, and I'm shocked to instead find myself in category B.

One wonders why. It feels vaguely immoral to like teaching. The suspicion is that one is forming a personality cult around oneself. Should it feel like an ego boost to have a classroom of bright young faces rapt in awe at the words of wisdom (hah!) flowing past one's lips? Is it really healthy to enjoy the peals of laughter (much of it no doubt motivated by grades and the Will to Sucking Up) at one's jokes?

But perhaps the personality cult runs in the opposite direction. For perhaps the Will to Sucking Up is availing them on a very deep level. For now it's Grading Time.

[Incidentally, grading is the reason that my posts have been rather sparse so far. I'm buried under a pile of midterms about Locke, Hobbes, and Mill. That's a spread that's particularly hard for me: Mill is the only one of those thinkers in whom I have much interest, and he's also the hardest. So the students who choose to write about Mill are producing the worst answers. And I'm faced with a choice between boredom and pain.]

'Cause, see I feel terribly guilty when I have to give them bad grades. See how dangerous this conditioning is. (Did Skinner ever write about this?) I teach them and amuse them, and they provide positive reinforcement with their smart comments in discussion and their smiles and their laughter and their learning. Like any reward-driven animal, I seek out that positive reinforcement (and the good teaching evaluations which go along, and hopefully grease my job market skids a few years down the line) and avoid negative reinforcement. Consequently, I feel an aversion to giving them bad grades. There's some dopamine sloshing around making this happen, but it cashes out when I think "but s/he's so smart! And so hard-working! Maybe I can find some more points somewhere in here."

But that thought must be squashed, for down that path lieth grade inflation and an all-A class and unfairness to the (many) people who performed really well. And thus Your Correspondent is revealed as a Total Softie. And this from the guy who was telling cynical jokes months in advance about grading. (I've been known to openly plan to grade in monkey-hours, as in "an infinite number of monkeys in an infinite time could write the works of Shakespeare. Your paper is three monkey-hours." I've also suggested the dead animal method of grading: an A is a dead skunk, and it goes down to roughly plague rat from there.)

Fortunately, my students are pretty smart, so I've had to give very few actual bad grades. Or perhaps they just have me trained very well indeed, and I'm motivated to believe they're smart.

Pellets! I need pellets, now!

Peck.

Peck.

Cue Twilight Zone music here.

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Quote of the Day: Don't Complain (Too Much) If You Are Complicit

James Grimmelman has a gem on this post by Michael Steven Green on Citation Counts and Legal Philosophy:

The acceptance ratios at any given law review are so law that the process has a significant dart-throwing quality about it already. On the long view, student-editor irrationality is only a serious problem if it keeps things from being published that ought to be published. It's our job as faculty to read scholarship seriously no matter where it comes out. Once the question becomes merely one of publication location, we can only complain about poor student editorial judgment to the extent that we're using it as a proxy for our own.

I always tear out my hair when I have to explain/limitedly defend/bemoan student-run law reviews and journals to friends in other disciplines. Scientists, social scientists, humanities scholars--every other discipline has more rigorous publishing standards.

"You mean you don't have peer review?" "How many law journals are there again?! More than there are law schools?!" "How do you know what is good?!"

It is true that there are too many journals out there, too many specialty topic journals (guilty as charged for being chief articles editor of one at Bourgie Metro Law School), too few standards, no systematic, rigorous process for article selection (I recognize that name is as close to a dominant heuristic as you can get), and not enough faculty advisor engagement/help. It's often the case that second year students (Hell, 1.5Ls) with no training in social science methodology, philosophy, critical theory, economics, history, technology--name your cognate discipline, highly specalized topic, or must-be-trained methodology--will be called upon to edit a piece that is out of their league. Basically, these students are editing for readability and grammar, and doing what they can actually do--enforce The Bluebook. But as to the ability of a student editor to remark on the substantive argument, particularly if it requires special knowledge--this is very spotty.

Of course, there are benefits of student-edited law reviews. There was a great deal of discussion on this on other law blogs (I will find links later). It does make for shorter windows of publication, which means that the gestation period is shorter, and so the articles can be churned out while they're still useful and timely--say, after a major case is relased or following publication of important data. Also, more venues to publish means that the insularity and heavy-hitter problems that occur at the top reviews will be mitigated by having more forums for more topics. Speciality journals have their place too, as clearinghouses for a particular subject--I of course am a fan of employment law journals.

But yes, there are many problems with student-edited law journals. The best journals from the best schools will always turn out good articles (because of the self-selection/insularity/heavy-hitter/name-recognition effect). Less certain in quality are the articles published by journals in the lower tiers of law schools. But there's a wide swath in the middle in which top work will be published but slip under the radar, or mediocre work will be published to readers' bemusement. Take the good with the bad. Read with a grain of salt, figure out who's doing interesting and important work in whatever field you're intersted in, and read them regardless of the placement of their publication. I often rely on Larry Solum's recommendations on Legal Theory Blog (his Downloads of the Week, his comments on articles that have been posted on SSRN) to get direction in areas in which I am not very knowledgeable.

There are tons of problems with the lack of peer review, cognate discipline training, expertise, and faculty advising with student-edited law reviews. I say this as a former student editor myself. But the problems aren't going to go away by just complaining about it, and professors are as much to blame as the hapless-but-ambitious 1.5L articles editors. Unless professors take a more active role in being faculty advisors to the journals they are formally associated with (it is often a figurehead/masthead position), unless they are willing to invest the time it takes to have a system of peer reviewed scholarship (talk to your friends in other departments, it is a significant time investment to be a reader or on an advisory board of a peer-reviewed journal) and unless professors do as James Grimmelman suggests and read as carefully as they want to be read--well, the problem won't just disappear magically by itself, and the problems will persist.

Don't complain (too much) about the problem if you are complicit in it.

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Professor Anita Allen on Philosophy

I was tipped off by this post at Feminist Philosophers to this article on Professor Anita Allen's address to the Collegium of Black Women Philosophers:


Yet she recounts in stinging detail how tough it could be, as a black "Army brat" raised on bases from Georgia to Hawaii, to feel comfortable in philosophy, a discipline that still counts only about 30 black women among thousands of professors. That partly explains why she chose to move to legal academe and express her philosophical interests from there, while maintaining a secondary appointment in philosophy.

"I'm in a livelier, more hands-on world," Allen says, offering a sharp view of the discipline with which she fell in love as an adolescent.

"I have not been able to encourage other people like me to go into philosophy because I don't think it has enough to offer them.

"The salaries aren't that great, the prestige isn't that great, the ability to interact with the world isn't that great, the career options aren't that great, the methodologies are narrow.

"Why would you do that," she asks, "when you could be in an African American studies department, a law school, a history department, and have so many more people to interact with who are more like you, a place where so many more methods are acceptable, so many more topics are going to be written about? Why would you close yourself off in philosophy?

"I feel that philosophy is hoisting itself by its own petard. Its unwillingness to be more inclusive in terms of issues, methods, demographics, means that it's losing out on a lot of vibrancy, a lot of intellectual power."

Despite delight at the birth of the collegium, the existence finally of a "critical mass" of black female philosophers, she admits "philosophy still feels to me like an isolated profession."

"I don't think I would encourage a black woman who has big ideas necessarily to go into philosophy," Allen says. "Why? What's the point? Go out and win the Pulitzer Prize! Don't worry about academic philosophy. On the other hand, I would like to see that world open up to more women and women of color."

If Allen sounds like a person who fell out of love with philosophy as a malformed academic discipline, if not with the subject itself, the field may have itself to blame. She could not have started off more enamored.

There's a a good follow up question in this post: What is philosophy?

I dont know the answers, I'm just a law geek/social scientist. But it's all interesting to me. I forwarded this to friends interested in law and philosophy, and so I thought I'd post this as well.

I was just talking to a couple of jurisprudence scholars about the paucity of female jurisprudes in the current literature and academy, and how intimidating it is to "speak up" and join the male-dominated discussions/shouting matches that occur even on blogs. What can I say that won't sound stupid, or be shut down as being naive? It's heavily male dominated to be sure, and it reminds me of feeling shy in big classes in law school (things are different now that I take mostly graduate seminars which are much more roundtabley and not as prone to the over-talking aggressive male dynamic that tends to reward the loudest male and too-quickly pass over the think-before-speaking female student). I'm always afraid of a rhetorical smack-down for coming off naive, dumb--or hell, just imprecise, the cardinal sin.

You'd think jurisprudes would be less shrill than those talking about more controversial issues like race and feminism. I rarely get into such contentious debates when talking about my own work, which is potentially controversial enough because it's about the efficacy of outcome-oriented organizational accountability programs and compliance with federal anti-discrimination law vs. process-oriented organizational responses that may be merely symbolic. I can imagine tons of arguments that could erupt over economic incentives, restructuring the workplace, paternalism, privacy/autonomy concerns, interfering with market efficiency--there are actually big stakes involved, but the discussion--even at the business school--is for the most part pretty civil and collegial. I am told by a friend that a possible explanation may be the application of the "politics are so vicious because the stakes are so low" principle.

I've always been shy about talking about my interest in jurisprudence or political philosophy on my blog for the same reasons. I used to take jurisprudence and political philosophy courses back in college, continue to read it for "fun," and have even TA'd undergraduate jurisprudence classes. But I never feel quite equipped or confident enough to talk about this lingering interest on my blog (unlike, say, my rants on critical theory).

This is why I don't get free legal philosophy books to review.

UPDATE:

I am alerted by X. Trapnel of Books Do Furnish A Room, of the relevance of this post by Harry Brighouse of Crooked Timber on a MUST READ paper by Sally Haslanger on Women in Philosophy.

Brighouse on Haslanger:

I’m going to resist the temptation to summarise for two reasons: one is that allfaculty members in Philosophy Departments should read the whole thing andcarefully, the other is that I don’t want any misimpressions caused by mysummary to influence subsequent discussion. Read it.

It seems blindingly obvious to me (but I’m willing to stand corrected, of course) that individual women, whatever their individual merits, have a better shot at success in grad school if there is a critical mass of other women in the program. Admissions committees create that environment (or fail to create it) by their decisions about the gender balance of entering classes. Haslanger herself is deliberately cautious about making very strong recommendations, but my (possibly ill-informed, but nevertheless entirely relevant) thought that graduate admissions committees are like night-club bouncers convinces me that graduate admissions committees should work very hard indeed to achieve gender balance.

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Follow the Links

In this interesting post on H-bombing and Ivy self-hating.

A taste:

"If you could have gotten into an Ivy but didn't, congrats! Your life is just as great as it would have been with an Ivy degree."

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Monday Poet: Charles Wright

These are all from the October 29 issue of The New Yorker, which I just received thanks to TC. I let most of my subscriptions lapse due to parsimony regarding my money (and wondering if I had enough time to indulge in everything I over-subscribe to anyway). But I am glad to have this one back--it is always interesting to read, and I like 90% of every issue.

This is currently the only magazine I'm subscribed to, until I cave in and order Martha Stewart's Living to really indulge in my "fuck you, I am a feminist" love of baking, decorating, and craft-making. I don't much miss my Harper's Monthly (I liked only 60-70%/issue, especially because the Lewis Lapham comments were so annoying), and the digital subscription I had to The New Republic is worthless if you don't spend enough time reading it online (it is better to get the print edition to bring on the train, which I may yet do). If not for low resources of money and time, I would read The Atlantic Monthly and The Economist, and yes, definitely over The American Prospect or The Nation (the latter two are too polemic). I, the commie pinko lefty, am still capable of surprising you, the gentle reader.

I can also imagine throwing my non-existent money and time away on The New York Review of Books. I would also subscribe to The American Scholar, which is such a geek signifier on train--the only visible link to PBK since no one actually wears the key (outside of college, it is a little too relivin' the glory days collegiate), and no one actually does the handshake or even remembers it. There are limits to my reading though. I would never read The Believer or anything affiliated with McSweeneys (just say no to emo, especially if it is twee and pretentious). n+1 is something I would subscribe to if I had more money, but better than that is The Paris Review. Yes, Paul Gowder, I said that out loud.

At some point though, reading so many magazines and book reviews makes you wonder whether you should spend that time actually reading the books they review. So there's that. So I've cut down my magazine reading and increased my actual book reading. But I am glad to have this one magazine back. This is awesome.

So for TC, four short poems for Monday. It is impossible to capture the white space in Blogger, but they're charming enough to type up anyway:


It is Sweet to Be Remembered

No one's remembered much longer than a rock
is remembered beside the road
If he's lucky or
Some tune or harsh word
uttered in childhood or back in the day.

Still how nice to imagine some kid someday
picking that rock up and holding it in his hand
Briefly before he chucks it
Deep in the woods in a sunny spot in the tall grass.


Sunlight Bets on the Come

The basic pleasures remain unchanged,
and their minor satisfactions--
Chopping wood, building a fire
Wtching the the elk herd
splinter and cruise around the outcrop of spruce trees

As the deer haul ass,
their white flags like synchonized swimmers' hands,
Sunlight sealing--stretched like Saran wrap--
The world as we know it,
keeping it fresh-flamed should tomorrow arrive.


Consolation and the Order of the World

There is a certain hubris,
or sse of invulnerability,
That sends us packing
Whenever our focus drops a stop, or the flash fails.

These snaps are the balance of our lives,
Defining moments, permanent signs,
Fir shadows needling out of the woods,
night with its full syringe.


We Hope That Love Calls Us, But Sometimes We're Not So Sure

No wind-sighs. And rain-splatter heaves up over the mountains,
and dies out.
October humidity
Like a heart-red tower light,
now bright, now not so bright.
Autumn night at the end of the world.
In its innermost corridors,
all damp and all light are gone, and love, too.
Amber does not remember the pine.

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If Not You, Who? Part I.

(This is Part I of a three-part series on personal responsibility in law/graduate school.)

If I am not for myself, who will be? If I am only for myself, what am I? And if not now, when?

(Hillel the Elder, Pirkei Avot 1:14)


When I was in law school, this refrain was often repeated as a "call to arms/responsibility/torch-passing."

"If not you, who?"

If not you, who will:

- do public interest law
- donate to the law school public interest fund to help pay for fellow students' summer public interst work
- volunteer for this legal clinic during the semester/work for it during the summer with a school grant/work for it after law school despite appalling law school debt
- serve ____ community or _____ cause
- join this ethnic/environmental/cause student organization to serve ____ community or ____ cause
- become an officer of this ethnic/environmental/cause student organization to serve ____ community or ____ cause
- feel personally obligated and responsible to do all of the above

I'm not advocating the complete abdication of responsibility and public service. But it is a strong message to put on the shoulders of young law students, many of whom are naive and idealistic, and more damagingly, with no concept of time management. Most bright young law students got into law school by taking on too much--they loaded up the majors, classes, extra curriculars, honors, theses, interesting summer experiences, volunteer work, causes and ideals.

The problem is that it's much harder to sustain this in law school, which is much different, and much more difficult. The curve, for one thing. Not that college is easy, but for the bright and industrious, hard work (that is not even that hard if there is a natural talent, and there is) is often rewarded with that "A" grade. Not so in law school, which is a different way of learning, analyzing, writing--and grading. The problem is that most students don't really realize this until after first semester--yet they get the "if not you, who" talk on the first day, and then repeatedly (in org orientations) throughout the first three weeks.

Give the kids a break. And most of them are kids. The averages are different for every school, but many law schools have the bulk of their students coming straight from college. I was all of 21 years old when I started law school (nevermind my co-blogger Paul Gowder, who was shockingly young). They (I) are full of ideals, beliefs, and causes. They know why they are in law school and what they want to do, but not how best to do it. Where their strengths may lie, where their energies may best be allocated. Let them do figure it out, piecemeal. Not by doing everything at once, but by getting settled in as law students, figuring out where their strengths lie, what they are most interested in doing and will be best at--be it the journal, the organization, or the clinic. But don't force everything on them to the point of burn out.

There are a few students who but for the "if not you, who" pep talk would remain complacent. But I don't think there are all that many. Most of those who feel a sense of responsibility will indeed serve ___ cause or ____ community. The problem is not getting them to commit, rather the problem is often keeping them from over-committing to the detriment of their grades, personal lives and general health and sanity. Lighten up. Let the first years settle in, and impress up on the 2Ls and 3Ls to really get involved. Hook 'em while they're young may be a countereffectual strategy, because what may result is burn out and fade.

I'm not at all suggesting that professors, in their organization advisor capacities, cease with the inspiring call to arms during org orientations. I like pep talks. I like knowing an organization's vision and mission and what goals it sets out to accomplish. But all of these platitudes should be taken with a grain of salt the size of a Mack truck. I don't think it's wrong to let first year law students take that first year to focus on what they're really here to do: be law students. Work hard at those classes. Don't feel guilty for having a personal life. Settle into your new neighborhood. Learn the law, and the more you learn, the better able you will be to serve ___ community or ____ cause. I tell incoming law students all the time not to over-commit. Join at most one journal, and at most one other organization. Don't do what I did and join two journals, two organizations, and become a mentor to an undergraduate. I was naive, took on too many responsibilties, and felt personally responsible for too much. And in the end, I was not responsible to myself. The only way to bear the burdens of others is to make yourself stronger, after all.

And it all works out in the end: I haven't becomea completely solipsistic, self-serving egotist. Well, I am an solo personal blogger, but that's not the point. I choose to write in the area of anti-discrimination law, I continue to support public interest work with either my time or resources. Not over-committing doesn't make you a bad person. It makes you a sane person. The causes will still be there when you have the knowledge, grades, and degree to make a difference.

In Part II, I'll discuss a way in which law/grad students should be more responsible, with respect to other students, and Part III, with respect to themselves.

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Friday, October 26, 2007

Movie Review: Lust, Caution

This is one of those movies that the less is said about it, the better.

I liked it.

It is staying with me, persistently urging itself like a child tugging at my dress whenever I see a certain shade of blue or whenever I apply my usual red lipstick. It is not a film of great visual scope--unlike Brokeback Mountain, which depended on the wide horizontal frame of Wyoming to encourage a different sort of openness. This was a movie of coat hems, mahogany banisters, hats, cigarettes, mahjong tiles, and lipstick stains on coffee cups. This is a movie that focused on the very particular things that encroach on the mind and heart until you give up in resignation or abandonment. I woke up thinking about it.

Sexual politics map onto real world politics in a ridiculous, ill-fitting way. But they nevertheless map on, as it is not difficult to extend the metaphor of women used as pawns in war as well as love. The brutality, misogyny, and masochism inflicted on the naive-yet-cunning lead actress--by both her lover and her Resistance leaders--is it any wonder that she did herself in? Whose sacrifice? Whose side was she on? Certainly not her own. Perhaps she was really in love in a naive sort of way, perhaps she succumbed to a Stockholm-like perverse sympathy to her lover/abuser, or perhaps she finally realized her Resistance leaders did not care for her--or perhaps all of the above.

This movie makes no grand moralizing statements, but it does ask these questions. I have no answers.

But I do have lingering visual memories that suggest one sort of answer above another, because taken in the aggregate, a series of images and moments tell as much of a story as a grand narrative with a big statement set against a wide vista (and yes, I loved Brokeback Mountain).

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Wednesday, October 24, 2007

Conversations with a Mathematical Physicist, OR: How Does a Mortal Learn Quantum?

A few days ago, I was riding the train across the bay area, and I found myself sitting next to a mathematical physicist, with a former physics student across the aisle. Naturally (being me) I asked him to explain why Quine said, in "Two Dogmas of Empiricism," that quantum physics might require dumping the law of excluded middle. A lot of talk ensued about about electron positions and hidden variables and the Copenhagen interpretation, some of which I sort of understood, but it came down to this: either the law of excluded middle croaks, or locality croaks. And if locality croaks, all of physics (or perhaps all of science!) croaks, because we'd have to study every point in the universe simultaneously.*

(Allow me to just point out the coolness of that. Every point in the universe. Simultaneously. Sure, it's impossible. But isn't it just awesome nonetheless?)

Quantum physics seems to come up a lot in my life lately. (Paul Gowder: this is your life!) I'm taking a philosophy of science course right now, on theories of explanation. The professor, amusingly, does most of his work in philosophy of physics. Consequently, every example features electrons spinning higgledy-piggledy to and fro, lagrangians asymptoting off into singularities**, and light being wave and particle and sausage and indeterminate and a hyperintelligent shade of vaguely pinkish in a yellow-black kind of way, all at the same time. Needless to say, they're mostly totally incomprehensible to anyone without a strong undergraduate major in physics at the very least. Fortunately, the papers we're reading have more mundane examples!

For these and other reasons, I'd like to learn me some quantum physics. And therein the problem arises. I get the impression that there's really no intuitive presentation in words that's also correct. One has a choice between reading math and reading something that's a misrepresentation.

So is this true? Is there a physicist in the house? Is it in principle possible to get a basic grasp of the debates in quantum physics without knowing, say, topology? Comments?

- - -

* Yeah, but, but, but... uh... what happens to science if we drop the law of excluded middle? Do we have to start from the beginning again? Is there a logician in the house who can explain that one to me? (And, while we're at it, you can try and make me comfortable with the old ugly business with material conditionals being true whenever they have a false antecedent. Actually, if we iced the law of excluded middle, could we get rid of that rule too and say that material conditionals are neither true nor false when they have a false antecedent? Pleeeaaassseeee? I'll bet it would make it a lot easier to make sense of counterfactuals! Or, uh, even harder.)

** I have no idea if the five words preceding this footnote marker mean anything at all in the order I put them in, but it sounds cool.

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Law and Letters Book Event: The Future of Reputation

For other L&L book reviews, go here and here.



I am very excited to give my long-delayed (sorry, dissertation meetings/IRB proposals come first) review of Dan Solove's new book, The Future of Reputation. You can buy it here.

I LOVED this book. It is immensely readable and fun to read. The substantive material is itself interesting; the way it is written sustains my interest from beginning to end. That is the basic "thumbs up" review. For a more substantive, summary-type of review, go here for Frank Pasquale's review. Also, here are a bunch of other reviews.

But you know you are not going to get the typical review here.

Instead, I want to discuss this book in the following ways, and I promise you that they are somewhat connected:

I. The Structure of the Book: Anecdote as Argument, and a Narrative of Norms

II. Damn You, Stanley Fish: Interpretive Communities, Norm Enforcement, and Bounded Notions of Privacy/Public Concern

III. For Shame: A Limited Defense of Public Shaming

IV. Why Should You, Voyeuristic Reader, Care About Privacy? Why Should I, The Solipsistic Over-Sharing Meta-Blogger, Care About Privacy?

I. The Structure of the Book: Anecdote as Argument, and a Narrative of Norms

Solove employs several (in)famous anecdotes of internet violations of privacy to make his argument for a clearer, more rigorous definition of privacy law (I will not summarize the argument--go read the book!). I like this approach for several reasons: because this is a general audience book (as opposed to esoteric academic text that no one would want to read), this works very well for driving home his argument. It grounds his argument in understandable, relatable, real-life examples. So many academic books--especially and ironically those arguing for clarification in the law--tend to talk "over" people's heads, abstractly, and without any sort of real-life evidence. Not that anecdotal evidence is rigorous empirical evidence, but it is something. And of course, Solove's project is not empirical (I honestly can't imagine how it could be), so anecdotal evidence serves his thesis well. Talk in the realm of the pneuma, and you'll never get people to understand why the law is so important to daily life. The examples Solove offers are (in)famous and scattered across the globe and among different demographics: from an inconsiderate Japanese girl who won't clean up after her dog to an underdog-type little boy who is publicly embarassed for being his Star Wars loving self to a very indiscreet Senate staffer--we could all be this person whose privacy was violated (or who violated their own privacy). We are more likely to be the audience who punitively, derisively, or voyeuristically participated in the discussion following the violations of privacy though.

I think of his anecdotes as doing more work than merely serving his argument. They are discrete examples of different types of privacy violation and/or public shaming, but to me there's a sort of thread that binds these bright little capsules of argument, like a bunch of paper lanterns. They are little stories, but even vignettes may have an overarching theme--and the one here is obvious: Solove's argument for an expanded and clarified definition of privacy (which I will not explain, I am serious, go read the book). Less obvious, perhaps, is the thread I am interested in: anecdote as argument lends itself to creating a narrative of norms.

Taken in the aggregate, the discrete anecdotes become all the more shocking in how our (my?) generation has redefined the concept of "privacy." I can remember each anecdote that Solove mentions to illustrate his thesis. When I read them all in a row, I am shocked that I have such an appalling lack of discretion, such a high tolerance for voyeurism, and such a mean-spirited nature that I admit to having delighted in laughing along or shaming along with the rest. (I have never argued that I am a good person on this blog, mind you snarks.) The narrative that the string of anecdotes told (privacy = good) served to reinforce a set of norms I often forget in discrete instances of schadenfreude and snark. The narrative of norms got me in the end, and it made Solove's thesis all the more persuasive.

II. Damn You, Stanley Fish: Interpretive Communities, Norm Enforcement, and Bounded Notions of Privacy/Public Concern

I, the lapsed deconstructionist (I was so po-mo), am not a big fan of Stanley Fish. At least anything he writes on the law, and anything he writes for the New York Times. Not only am I not a big fan, I might be considered a big hater. I do have some sympathy for (but hardly agreement) with his idea of "interpretive communities", summarized thus:

This aspect of Fish's theory is one of the most radical and controversial. He posits that meaning inheres not in the text but in the reader, or rather the reading community. "In the procedures I would urge," he writes, "the reader's activities are at the center of attention, where they are regarded not as leading to meaning but as having meaning." He can hold this because he believes that there is no stable basis for meaning. There is no correct interpretation that will always hold true. Meaning does not exist "out there" somewhere. It exists, rather, within the reader.

Wikipedia has this, which I offer because my Fish books are at my parents' house:

Fish's work in this field examines how the interpretation of a text is dependent upon each reader's own subjective experience in one or more communities, each of which is defined as a 'community' by a distinct epistemology. For Fish, a large part of what renders a reader’s subjective experience valuable—that is, why it may be considered “constrained” as opposed to an uncontrolled and idiosyncratic assertion of the self—comes from a concept native to the field of linguistics called linguistic competence. In Fish’s source the term is explained as “the idea that it is possible to characterize a linguistic system that every speaker shares.” In the context of literary criticism, Fish uses this concept to argue that a reader’s approach to a text is not completely subjective, and that an internalized understanding of language shared by the native speakers of that given language makes possible the creation of normative boundaries for one’s experience with language.


Although Fish argues that the only possible meaning of a text is what the author intends, he claims that any actual attempt to access this is not possible. Any attempt to determine what exactly the author intended will result in nothing more than an interpretation based upon the interpretive community of the reader making the interpretation. Fish distinguishes the former as an epistemological point about what texts mean, whereas the latter is a sociological one about how claims about those meanings are produced.

Why do I bring this up? Because it is a basic argument for context, and in this case, the context is not historical, political, sociological, etc--e.g., some external, independent context--but rather the context of readership and audience.

Solove's arguments have at their heart an argument for such context. In each of his anecdotes, the Internet enlarges the context of a discrete act far beyond its original intended parameters: the little boy makes a tape of himself with a light saber for his own amusement (or for his sympathetic friends); the dog poop girl's moment of inconsideration and embarrassment could have been limited to that train car or heck, at least Japan; Jessica Cutler's sexual indiscretions were originally intended for an audience of her personal friends. The context of audience and readership are important for Solove's thesis.

My interest in audience-as-context has more to do with norm enforcement: within a small group, norms are identifiable and easily declared and enforced. The problem is that we don't have small groups or communities anymore. See, e.g., Putnam's "Bowling Alone." What are norms nowadays? I can identify a few norms of Liberal College City: respect pedestrians, recycle, buy sustainable, eat organic, don't vote for Bush. It's still a pretty big city though, and these are the only norms I can see on a daily basis. But that said, normative enforcement is pretty lax, except for the fact that my curb looks loserly if I don't have my recycling bins out, and I would really hate to be the car with a Bush/Cheney sticker out on the street.

Norms are particular and localized; yet the Internet is vast and diffuse. What happens, then, when a privacy violation spreads like wildfire throughout the Internet? Chaos! Read the book for more. But basically, I would say that it shatters the readership interpretive community to pieces; interpretations might have been controlled if only those who really "knew" Jessica Cutler read her blog, but once it hit Wonkette--everyone had an opinion without knowing the people they were judging. One of Solove's take-away points is that privacy is fluid: we might violate our own privacy all the time to our friends, but we are appalled when strangers know our business. Privacy is not rigid, it is fluid--but it has not altogether disappeared either. I would call it "bounded," that we have a certain expectation of privacy between our friends, a different type amongst our colleagues, and limited to our geographic area. The Internet takes this boundedness and destroys the borders. On the other hand, the internet expands the bounds of "public concern"---if it reaches the Internet, everyone believes they have a right to know, a stake in their interest, and a freedom to opine, snark, shame. Boundaries are shattered and expanded, but nothing is contracted. The context is everything, the readership entirely determinative of interpretation: but even though privacy has its bounds, they mean almost nothing on the Internet. Before, public stonings occurred in the town square, but that is an example of a bounded community of norm-enforcement: four corners, only a certain number of people, and only those with an actual interest-stake participated. Not so, now, with the vast blogospheric public square. The one to cast the first stone may not be the one with the highest interest-stake, but rather the one with the most vitriol with the biggest voice.

III. For Shame: A Limited Defense of Public Shaming

All of the above said, I can't help but support some instances of public shaming. I've on occasion complained of something (without going into ad hominem, or giving identifying details) if only to elicit sympathy and feel assured that my conception of norms was violated, and that others agree with me. For instance, I got reassurance that I was not unjustifiably mad about being ditched by my former best male French friend on the streets of Manhattan at midnight in favor of skirt chasing, particularly when he had borrowed all of my cab fare for dinner. Yes, you read that right, "former." I got a lot of "bros before hos" affirmation, whether by comment or email. I kept him pseudonymous, although I admit that mutual friends know who he is, and the full story behind this (and the eventual fallout that resulted from even greater douche baggery, which to my credit I did refrain from blogging--kind of). But still, that readership community is bounded, and the strangers who chance upon my blog will have no way of further shaming him or knowing more about him--not that he is sensitive to rebuke.

This is the concept behind "Crap Email From a Dude", which I love to read. Part of Putnam's thesis in "Bowling Alone" is that not only are norms hard to enforce in our ever more atomized, anonymous, large-scale living patterns, but that norms are hard to identify and disseminate. Enter, the Internet. Crap behavior is capable of being identified, across geographic region, socioeconomic class, gender, race, and age! We can all come to some sort of agreement! Well, not always. Sometimes we disagree (read the comments).

Don't discount the internet's assistance in norm identification, dissemination, and enforcement. I delighted that there was such widespread outcry against Autoadmit (I will not link, they suck), which had its own brand of vicious, sociopathic privacy violation and shaming ratcheted up with appalling misogyny and racism, and peppered with threats of violence. Actually, I wonder why Solove did not bring that up as an example in his book. I imagine it is because he wrote the book before the debacle really unfolded, and Gutenberg printing-time lags far behind internet light-year time. I agree with Solove that shaming has its limits, and the use of identifying details is something to be very, very careful about--because real life people are destroyed when their names are sullied and their reputations are compromised. But I distinguish that reputation destroying done by namers and the sociopaths on Autoadmit, and that pseudonymous, sympathy-gathering, norm-identifying tepid public shaming done on Crap Email From a Dude--and, I admit, myself. I can't claim to be particularly discreet, nor above mild public rebuke myself. I do, however, want to eventually write an empirical paper on behavioral norms in the blogosphere.

IV. Why Should You, Voyeuristic Reader, Care About Privacy? Why Should I, The Solipsistic Over-Sharing Meta-Blogger, Care About Privacy?

Which leads me to my last point: why should you or I care about privacy?

I don't know how precisely to articulate this without sounding hypocritical, but I do. I do care. I may not seem to care, but I do. Those who know me are surprised (shocked, appalled) by my "over-sharer" tendencies. My friends are used to it. New acquaintances slowly get used to it, and their amusement turns to affection (I hope). To a certain extent, I can't imagine being any other way--I have good, deep, quickly intimate friendships because I am the way that I am, and those who respond positively to it like me forever. Even some professor friends are cool with it, though of course I limit my oversharing to those who are likewise indiscreet (or merely indulgent). And hey, I have a personal academic blog. Clearly I have boundary issues.

And so do you, gentle reader. You read my blog. You know a lot of random stuff about me, and seem to care. I don't blog boring, quotidian things (today I...), but you for some reason like to read my movie reviews, music picks, thoughts on academia, and maybe even a bit about myself and my weird immigrant background. You probably read other personal blogs, in which the authors are even more train-wrecky. You can't help it. I certainly can't.

That said, it's not like you or I have given up on privacy. I blog much less on personal stuff than before, particularly now that my readership has grown beyond my friends. When I had only 20 readers a day, half of whom were my friends, the other half random people, I didn't care what I wrote. Now that I get about 200 visitors a day, most of them academics (26 of whom I've come out to), lawyers, grad students, other professionals--yes, I have self-censored. I try to stay interesting, but I get less personal. Except for my norm-identification/enforcement posts (and those are much less frequent now that I have weeded such norm-violators from my life, thanks to the support of my norm-agreeing readers), I blog very little on people in my life except in positive ways. I adamantly refuse to blog about my romantic life, or about my family. I may blog about my upbringing, if only to make a broader point about access to education, gender, or race.

I do, however, put a lot of myself in the blog--just not my day-to-day experiences or identifying details or things that compromise the privacy of others. Opinions are not personal to me; my thoughts on a movie or book are up for grabs. It is a part of being a public intellectual, or in my case, public pompous ass. I like to blog about my work and what I am learning, because I think of education as a collaborative enterprise. I like to indulge in my quirky side on the blog, because I am a raging narcissist the way that all solo bloggers are.

The question is, what is mine to share, and what is yours? I think that my blog friends understand that almost everything that may be considered a "shared memory" is up for grabs, as is pseudonymous anything. Others don't share this broad definition of what is "bloggable." I try to intuit others' conceptions of privacy: if they are private people in general, they will not appreciate being blogged about, whether in a positive or negative manner. General descriptions are probably okay (for instance, I am allowed to say that I appreciate my roommate for introducing me to running, but cannot describe her in any other way). But in general, what's mine is mine, what's yours is yours. I ran into this problem recently with the Former French Friend, whom I gave a CD of my pictures from the last year before our fallout. This was a gesture of friendship, a CD of our common memories--and some non-common ones got slipped in due to shared folders. He puts up all the pictures on Facebook, even the memories he never shared. We are no longer friends. He refuses to take them down. At least the pictures of which he was no part, and the pictures of myself Whether or not they are his memories, or mine--no matter, despite my requests for him to do so. D-bag? Yes, he is. They are his memories too, but they are pictures of me, and they exist somewhere, other people I do not know will see them, and I cannot control this. This is the evil of the internet, these are the perils of online social networking, this is my penance for being naive and too trusting.

Ah, but look--this brings us back to points I, II, and III: I have shown you, by a series of anecdotes, an argument for a fluid-yet-rigorous conception of privacy leading to a narrative of norms; I have engaged you, my small, bounded community of readers, in norm-identification/dissemination/enforcement, I have publicly shamed a former friend, and I have shown that even those with very broad, relaxed standards of privacy do care about privacy violations when norms are violated to unintended viewers/readers.

And with that, I hope that you will find Solove's book as useful for understanding privacy law and our own (individual, community) ever-shifting notions of privacy. Please do read his book. Solove writes very smart, cogent arguments that I do not do justice in the above weird review.

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Tuesday, October 23, 2007

Some Loosely Connected Musings on Passion, Regret, Law School, and Class Privilege, with Advice to Prospective Law Students

I remember finding myself in Charlie Nesson's office at some point during my 1L year, having a conversation that would haunt me for the rest of my law school career. As is his wont, he pointed a video camera at me (and I do hope he destroyed the incriminating footage -- I'm sure I looked like a complete bloody blithering idiot) (seriously -- Charlie -- can you make sure that tape's in the memory hole?) and asked me "what is your passion?"

I don't recall my answer, babbling featured in quantity, but I'm pretty sure the words "I," "don't," and "know" appeared in their usual order at numerous places. And that fact somewhat troubled me for quite a while -- at quite unexpected moments, the question would pop up and present itself for yet another nonanswer. And yet ... and yet ... and yet... somehow the synaptic connection didn't happen, the one that should have told me "maybe you shouldn't be spending years of your life and thousands upon thousands upon still more countless thousands of student loan dollars on law school when you don't really know what your plan happens to be?"

This is not to say that I regret having gone to law school. I don't. I don't necessarily think it was the best decision either, however. It's tempting to look back over part of one's life and indulge in regret or self-praise when really, all the strands in the whole web of decisions that make up a life in progress are deeply and irreducibly entangled, and one can't just chop one out without becoming a total counterfactual mess. (You may cite this as Gowder's Holistic Argument for the Stupidity of Regret. Thank you.)

But since the GHASR might not convince even if it's remembered, I'll offer a piece of more practical advice. Take two years off before law school. Ideally, even, take those two years before finishing undergrad.

Spend the first year working as a paralegal or something in whatever law context seems the most enjoyable for your long-term legal career. (Government, public interest, big firm, whatever.) As I'll discuss in more detail in a future post [11-16-07: the promised future post is live], one major reason that people might end up regretting their decision to go to law school is that many law jobs (and they're becoming increasingly hard to get) really suck for many people. Actually spending some time working with lawyers is a great way to learn whether your image of the day-to-day life of the law matches the reality, and how much, exactly, you'll hate it.

[And actually, this doesn't even apply only to people who are thinking of going to law school. It applies to everyone who is about to sink huge costs in time and in money into some life course without having experienced it first. It just so happens that law is the one with which I happen to be familiar.]

Then spend the next year making a start in the hunt for your passion. If you have an idea ("gee, I always wanted to try landscape photography") then go do it. If you don't, flutter around for a bit chasing the shiny things. Don't expect to "find yourself" or your life's goal. But do expect (I hope... I'd predict) to get a stronger sense of your personality and your preferences for both day-to-day existence and long-term goals.

My scheme might not be practicable for everyone. In particular, people whose families rely on them, who have poverty looming, who have other similar sorts of concerns, might not have the opportunity to spend time working out in the forest or studying Japanese or whatever looks pretty (even if it's selling stocks!).

I can't say much to people in those situations. But I can and will go out on a limb and say that it's a serious distributive injustice if there is a disparity in the opportunity to find out what will make one happy in life. And though the social scientist in me cringes at making this kind of generalization without data, I'll bet that the disparity exists. All the things that make it possible for people to find out what a good life looks like to them -- a broad and deep education, long-distance travel, exposure to role models in a variety of careers and lifestyles, socialization and encouragement to define one's own model of success and bring it about -- all of these things come easily with money and difficultly without. And this needs to stop. How can a child learn that s/he has a talent and passion for art without exposure to the works of others? How can a college student learn what careers s/he might match with (or cobble together a strong resume) if s/he can't afford to work for free in one of those outrageously immoral "unpaid internships" that are becoming all the rage even in massively profitable corporations that can easily pay enough to make it possible for people who can't rely on mummy and daddy's bottomless purse to eat and pay rent while they "build experience?" Time costs money, and we ought to be doing more than we are to provide that time to people who really need it.

It seems to me (yes, I'm working on a paper about this) that there's something about character development -- about finding your own idea of what it might mean for your life to go well -- that is inherently first-person and experiential. You can't just sit around and imagine what might make you feel fulfilled and happy in life, and you can't just rely on the experiences of others. You have to go out and do it yourself.

And so?

[Hi, everyone. This should be a good month. (For me at least.) Thanks to Belle for having me over! And she really does make wonderful chicken soup.]

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How to Read Academic Articles Methodically

From now on, this is how I will structure my precises--even though I don't have to take comprehensives/qualifying exams, field exams, or topical exams. I write them because I can't remember everything I read when I read so many articles on the same thing, I and I write them because everything becomes a footnote in the monograph anyway.

I highly suggest that YOU write them for every article you read (as soon as you finish reading it, or even as you go if you, like me, have useless marginalia and bad handwriting without effort that should be put into reading). I suggest that you do this if you have to take any of the above exams, if you are writing a very long or multi-stage project (theses, dissertations, one conceptual article followed by an empirical piece). I just suggest writing them so that you don't have to re-read articles, or heaven help you, wonder as I do if you read that article.

Plus, I like to post them on the blog. It's a public service and online server.

At any rate, I just got this in my research methods class today:

1. Citation

2. What is/are the key claim/s of the article?

3. What is the research design?

4. How was this research conducted? (i.e., methodology)

5. How were the data sampled? (this, I have found, is very useful to note when conducting your own study)

6. How were the data analyzed?

7. What are the main findings?

8. What evidence is brought to bear to suport those findings?

9. What are the strengths and weaknesses of the evidence?

10. In the end, do you find the evidence persuasive?

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Monday, October 22, 2007

Introducing Guest Blogger: Paul Gowder

This is a new experiment, but I think it will be very fun, interesting--and full of the unexpected.

Please give a big Law and Letters welcome to Paul Gowder, whom some of you may recognize as a voracious commenter on various law blogs. He is a good guy, a most delightful conversational partner, and a big fan of my chicken soup.

But if you're interested in the mundane biographical details:

Paul Gowder did undergrad at a little state school in southern California, then infamously graduated from Harvard Law School in 2000 at an age that he describes as "embarrassing." Thereafter, he, spent a couple years doing legal aid in rural Eastern Oregon and a couple of years doing civil rights law for a "private" firm that's "basically a front operation for the ACLU" in Northern Virginia. In between, he spent a "dissolute and financially ruinous" year in New Orleans, hanging out with musicians and living in a youth hostel. Somewhere in there, he realized that he doesn't like discovery disputes and does like peer review. Accordingly, he stopped practicing law and started planning the leap to faith, a.k.a. to academia.

He's now in his second year in Stanford's political science Ph.D.program, where he does a combination of normative political theoryand occult math, with bounded rationality, institutional economics,and org theory spiced to taste. He also has side interests inphilosophy of science and neuroeconomics. His most interesting current project (which might or might not produce anything in print, N years down the line) involves attempting to vindicate a Millian sort of developmental perfectionism with hypothetical consent based on the counterfactual preferences of boundedly rational actors. (In English: "the state gets to make you learn, neutrality principle notwithstanding, because if you were fully rational you'd want it.") He recently discovered that teaching is not, as he feared it would be, an annoying distraction from research, but is instead great fun and inspiring. He describes his life as '"something between Fear and Trembling and Fear and Loathing."

Welcome, Paul!!!

Paul will be guest-blogging for the next month on "whatever the hell he wants."

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Sunday, October 21, 2007

They Brought The Awesome

Blogging Across America just keeps getting better. I used to consider blog meetups successful if the following criteria were met:

1) I didn't make a mistake and agree to meet a sociopath;
2) I wasn't so terribly socially awkward that I forgot how to talk;
3) I didnt knock something over on myself or my company;
4) I didn't accidentally order/eat something I was allergic to, causing me to very gauchely pick apart my sandwich to avoid the mustard or choke;
5) The person didn't hate me.

HLP and TC have set the bar higher--the most successful blog meet ups result in real friendships and future visits back and forth. Blogging brings connections, places to stay, books to read, people to hang out with.

I am pleased to report that yet another wonderful visit with TC transpired this weekend, with two new great additions: The Philosophical Werewolf and The Roving Commenter. It is always awesome to find people with whom to talk about blogging, philosophy, academic gossip, books and randomness. Even better to get someone who will go with you on a road trip to a Shakespeare Festival, and someone to see "Lust, Caution" with. My idiosyncrasies are such that I am always in need of a roadtrip buddy for my nerdy destinations, and movie dates for my non-mainstream picks. I am no longer satisfied with not being hated; it is indeed better to be actively liked.

It is better to be feared than loved, but in the real world (not the political realm or blogosphere) it is better to be liked than hated. Apparently, homemade chicken soup, biscuits, biscotti, and tours of bookstores go far in getting you towards that goal. You bring the food, they bring the awesome, and everyone leaves happy.

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Friday, October 19, 2007

Say, Fromage!


TC is passionate about cheese. My life's goal is to make her happy. I may stumble towards this goal, but there you go. At least I can buy her cheese for her visit Sunday.

I grew up poor, only occasionally eating Kraft Singles (we bought generic). I wasn't big on cheese for most of my life, despite the French-influence on other parts of my meals. So I had a pretty boring palate for cheese for mst of my life. I remember my college boyfriend (FLOML) introducing me to Vermont cheddar, a cheese I usually don't like. I still don't generally like cheddar, and since 2001 have refused to touch Vermont cheddar--but I often get Canadian Cheddar, which I much like--those Canadians are so inoffensive, they can do no wrong. And they make a pleasantly creamy-but-sharp white cheddar.

Still, one must break out of the cheddar/mozzarella/provolone box. Cheese is not just for slicing up into turkey sandwiches. We do not eat processed cheese foods past a certain level of palate development, so no to American/Canadian Singles (seriously, in Canada, that's what they call them...).

So in an effort to go beyond cheddar and other "sandwich cheeses," I've been going to the neighborhood cheese co-op. Yes, you heard me. Liberal College City is full of co-ops for everything: living, grocery-shopping, bakery-ing, cheese-shopping.

The nice thing about a proper cheese shop is that you can ask for little slices to try, rather than be limited to buying pre-cut wedges from the gourmet grocery stores. That can get expensive (cough, Whole Foods, cough), and if you don't like it--sucks to be you. And because of that, it's a little more difficult to be adventurous and try new cheeses. I have a grad student budget. I like buying wedges under $10, $5 if possible--and yes, I still want to try nice cheeses.

Which is why the cheese co-op is awesome. Far better than Mr. Wensleydale's. And far better than pre-cut, wrapped cheeses from the foodie grocery store.

I plan to arrange the following decoraively in a platter of figs, slices of Bosc pear and Fuji apple (grapes didn't look good), toasted walnuts drizzled with honey, and slices of baguette (or simple crackers):

-Istara: French/Pyrrennes Sheep's Milk Cheese: mild, creamy, flavorful with a tangy finish.

-Piave: Italian Cow's Milk Cheese, a good parmesan with an almost fruity, citrusy finish.

-Sotto Cenere: Italian Cow's Milk Cheese with Truffles, rich and creamy and truffly, slight smokiness.

-Rocchetta: Italian Sheep/Goat/Cow's Milk, like La Tour, so pleasingly sharp, but soft and spreadable. Almost a little bluesy.

-Epoisses: French Cow's Milk, also soft, with sharp bite and smooth finish.

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From the Annals of Empirical Research: The Sampling Frame



It's something I'm working on. I could do the "snowball" sampling method, relying on certain contacts I have to alert me to other organizations and contacts--playing the six-degrees game within a particular industry and geographic area.

That, however, is not very random, systematic, or rigorous.

I have to figure out a way to get organizations to take my survey--I might just go through the phone book, go by industry, and am probably going to stay limited to my geographic area of Awesome Part of the Country (paying attention to the differences in compliance to federal FMLA law and Awesome State FML law). I don't have an NSF grant--no nationwide survey will be really possible, and I can't afford to hire a statistician anyway if I wanted to do a large-N survey.

My N will be small (under 50), because I will be writing all the questions myself, administering the surveys myself, and collecting and analyzing the data myself. Plus, this is a dissertation--my department expects me to finish and produce something publishable, not write the definitive nationwide study. If I do decide to code the scaled variables and turn this project quantitative, I think I can do all of the analysis myself using SPSS or STATA. Or hire some undergraduate monkey to do it for me. Not likely though.

Anyway, empirical concept of the day: The Sampling Frame:

The major question that motivates sampling in the first place is: "Who do you want to generalize to?" Or should it be: "To whom do you want to generalize?" In most social research we are interested in more than just the people who directly participate in our study. We would like to be able to talk in general terms and not be confined only to the people who are in our study. Now, there are times when we aren't very concerned about generalizing. Maybe we're just evaluating a program in a local agency and we don't care whether the program would work with other people in other places and at other times. In that case, sampling and generalizing might not be of interest. In other cases, we would really like to be able to generalize almost universally. When psychologists do research, they are often interested in developing theories that would hold for all humans. But in most applied social research, we are interested in generalizing to specific groups. The group you wish to generalize to is often called the population in your study. This is the group you would like to sample from because this is the group you are interested in generalizing to.

Once you've identified the theoretical and accessible populations, you have to do one more thing before you can actually draw a sample -- you have to get a list of the members of the accessible population. (Or, you have to spell out in detail how you will contact them to assure representativeness). The listing of the accessible population from which you'll draw your sample is called the sampling frame. If you were doing a phone survey and selecting names from the telephone book, the book would be your sampling frame. That wouldn't be a great way to sample because significant subportions of the population either don't have a phone or have moved in or out of the area since the last book was printed. Notice that in this case, you might identify the area code and all three-digit prefixes within that area code and draw a sample simply by randomly dialing numbers (cleverly known as random-digit-dialing). In this case, the sampling frame is not a list per se, but is rather a procedure that you follow as the actual basis for sampling. Finally, you actually draw your sample (using one of the many sampling procedures). The sample is the group of people who you select to be in your study. Notice that I didn't say that the sample was the group of people who are actually in your study. You may not be able to contact or recruit all of the people you actually sample, or some could drop out over the course of the study. The group that actually completes your study is a subsample of the sample -- it doesn't include nonrespondents or dropouts.

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