Saturday, August 19, 2017

Heckler's Veto?

According to reports, tens of thousands of counter-protesters showed up in marches and rallies in Boston, vastly outnumbering the few hundred people attending the the planned rally in Boston Common, which disbanded after an hour without planned speeches. From what I have read, there were so many more counter-protesters than ralliers that the latter could not be heard. And that was the goal of the counter-protesters.

So: Heckler's veto? And if not, how is it different from some of the campus incidents in which crowds outside the lecture hall have made it impossible for the invited speaker to be heard inside the hall?

Posted by Howard Wasserman on August 19, 2017 at 05:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Friday, August 18, 2017

Trick plays and baseball rules

This is a great story about a trick play in a high-school baseball game. Called the "skunk in the outfield," the play arises with runners on first-and-third. The runner on first walks into right field, hoping to confuse the defense into doing something stupid about that runner, allowing the runner on third to score. It did not work, because the defense kept its cool. It instead produce a 152-second standoff, an ongoing "play" on which nothing happened and no one moved--one fielder stood with the ball and stared at the runner standing in right field. And everyone--players and fans--became increasingly angry.

Posted by Howard Wasserman on August 18, 2017 at 10:44 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Bolivia and Chile Head to ICJ Over Silala River

While governance of transboundary international waterbodies is a constant challenge in many parts of the world, these challenges rarely result in cases before international tribunals. But Bolivia and Chile have brought competing claims over the Silala River to the International Court of Justice (ICJ).  Chile contends that the Silala is an international river subject to international law. Bolivia claims that the river - which originates in springs in the Bolivian highlands - cross the Chilean border only because of man-made canals constructed over a hundred of years ago. Mining interests in Chile's Atacama Desert depend on the Silala for industrial water uses in one of the driest, and most copper-rich, regions of the world. The UN has designated the Silala basin as one of the "the most hydropolitically vulnerable basins in the world."

Continue reading "Bolivia and Chile Head to ICJ Over Silala River"

Posted by Rhett Larson on August 18, 2017 at 09:14 PM | Permalink | Comments (0)

Thursday, August 17, 2017

Are Academics “Validators” of Fake News?

Fake news is a term we have all (unfortunately) become familiar with in the last year. It is misleading or unverified information spread through news and media outlets in order to grab attention of readers. During the election, fake news was published at alarming rates by both conservative and liberal websites. There have been recent high profile reports that mainstream media have spread fake news, including CNN and other reliable sources.

I want to talk and think about this fake news phenomenon, strictly as it applies to academics. The merits of what was actually fake and which party (or country) is most responsible for it is a more complicated question that I will punt on for now.

But what is the role of academics in spreading fake news? Do we unknowingly validate it? Or worse create it?

The Atlantic reported earlier this year that academics are “VIP Validators” of fake news. It pointed out that during last year’s primaries, Seth Abramson, assistant professor of English at the University of New Hampshire wrote in the HuffPost some “increasingly delusional blog posts explaining why Bernie Sanders would likely win the Democratic nomination.” These posts went viral among Bernie followers. The Atlantic also pointed to the example of Laurence Tribe, a professor of law at Harvard who “has been an especially active booster for the [Palmer Report], routinely tweeting links to highly questionable, unverified news stories about Trump.”

Forbes similarly discussed recently the role of academics in spreading fake news and information. Kalev Leetaru claims: “Not a day goes by that an academic paper doesn’t pass through my inbox that contains at least one claim that the authors attribute to a source it did not come from. I constantly see my own academic papers cited as a source of wildly inaccurate numbers about social or mainstream media where the number cited does not even appear anywhere in my paper.”

So with those examples as a preface (though I could name several of my own), I ask, are academics furthering the problem of fake news? I’ll share my thoughts and hope to hear some of yours.

I am absolutely mindful (maybe frightened is a better word) of spreading false information in my work. In today’s academic world, there is a much greater reliance on online sources. For instance, in my field, criminal law—and the topic I’ve written most about—bail, there is a lot of empirical work done by policy and advocacy groups and the government. I do my own empirical work and can stand behind that, but I often have to rely on others work as well. In drafting my book on bail, I have certainly relied on online articles (nonscholarly) about bail related issues and examples of stories of individuals struggling to make bail in the criminal justice system.

 Ten years ago, academics (and students) were only to rely on books or articles in print and had to verify everything by checking the original source. Now, many of the citations acceptable in law journals and other academic sources are online sources. Online publications, including newspapers, academic journals and other sources are fair game for prestigious academic publications. And while there is a hierarchy of online sources (possibly academic peer review journals being best on down to facebook/twitter being at the bottom) there is a lot of room for more reputable sources relying on less reputable ones and this information spreading.

So I worry that with the increasing reliance on online sources, that fake news and information will spread more and that academics will have a dangerous role to play in this. And this worries me because if academics are not providing reliable information, then who will? Academics should be shielded from the whims of a news cycle and deadlines to publish quickly and catchy over claiming titles that catch the eye of a reader and exacerbate the fake news problem. But are we?

More on this in my next post…

Are Academics “Validators” of Fake News?

Posted by Shima Baradaran Baughman on August 17, 2017 at 06:24 PM | Permalink | Comments (4)

Tuesday, August 15, 2017

Finalizing the U.S./Mexico Water Sharing Agreement

A summary of a tentative agreement on shortage sharing in the Colorado River basin was recently released by the International Boundary and Water Commission (IBWC) - the bilateral international commission that implements the 1944 Rivers Treaty between the U.S. and Mexico. This agreement will be Minute 323 to the 1944 Rivers Treaty, and represents an extension of several of the main provisions of Minute 319, the 2012 agreement that expired this year. Minute 323 will only be finalized if the states of the Colorado River basin can agree on a Drought Contingency Plan (DCP). The DCP negotiations are ongoing. This agreement represents the continued success of the IBWC and emphasizes the importance of hydrodiplomatic relations between the U.S. and Mexico. Lost in much of the (in my opinion, misguided) talk of building walls on the border or abandoning NAFTA is the importance of a close, collaborative relationship between the U.S. and Mexico in jointly managing our rivers to enhance drought resiliency and our ability to adapt to changing climate conditions.

Continue reading "Finalizing the U.S./Mexico Water Sharing Agreement"

Posted by Rhett Larson on August 15, 2017 at 07:52 PM | Permalink | Comments (0)

Random thoughts for the day

Two items for the morning, not particularly related.

1) President Trump is "seriously considering" pardoning  Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt for repeatedly ignoring injunctions against his department's Fourth Amendment-violative practices. Trump believes Arpaio has been a strong actor against illegal immigration. But Arapio's department was found to have engaged in systematic constitutional violations and then Arpaio intentionally and repeatedly disregarded court orders designed to stop that behavior. So it seems to me this pardon signals a lot--that federal, state, and local officials can be freer to ignore civil rights injunctions and that Trump, who does not hold the federal judiciary in much regard, may resist both obeying and enforcing future injunctions.

2) In the wake of Charlottesville, there has been discussion about driving into crowds of liberal protesters who move into the streets, with several states proposing laws that would immunize drivers for doing so. Florida's bill would 1) make it a second-degree misdemeanor for a person to "obstruct or interfere" with street traffic "during a protest or demonstration" for which there was no permit and 2) immunize any driver who unintentionally injures or kills someone who was in the street in violation of the first section.

My question: Does such a law violate the First Amendment? Florida law already prohibits obstructing public streets (it is a pedestrian violation), so this law would impose special heightened penalties when the obstruction occurs during an unpermitted protest or demonstration. Florida is a comparative negligence state, so a driver who unintentionally injures or kills someone who is wrongfully in the street (e.g., crossing against the light) may bear some liability for his negligence--unless the victim was in the street during an unpermitted protest or demonstration. In other words, the penalty for obstruction is greater and the protection against negligent drivers less when the person was in the street for expressive purposes than other purposes. This sounds like what Marty Redish and I called a "gratuitous inhibition on speech"--a law that treats more harshly activity done for expressive purposes than for non-expressive purposes.

Posted by Howard Wasserman on August 15, 2017 at 10:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (13)

Sunday, August 13, 2017

Article Submissions: W&L Journal of Civil Rights and Social Justice

The Washington and Lee Journal of Civil Rights and Social Justice (JCRSJ) is conducting a direct article review for submissions to our Fall 2017 Book, Volume 23, Issue 1. Any article submitted to the journal by Sunday, August 27 at 10:00 p.m. will be reviewed and evaluated before September 4.  If you have submitted an article to JCRSJ previously, please resubmit your article for consideration in this direct review.

By submitting your article, you agree to accept a publication offer, if extended by the journal.  Any articles accepted will be published in Volume 23, Issue 1, scheduled for publication in December 2017.

If you wish to submit an article, please e-mail an attached copy of the article, along with your CV, to JCRSJ@law.wlu.edu.  Please include “2017 Direct Article Review” in the subject line. Thank you so much and we look forward to reviewing a number of articles.

Posted by Howard Wasserman on August 13, 2017 at 01:52 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, August 11, 2017

The Process for Challenging a Presidential Self-Pardon

The ongoing investigations of possible collusion between the Trump campaign and Russia have raised all sorts of interesting and difficult legal questions. I've tried my best to read what lawyers and legal scholars are saying who are engaged with these questions, and I've learned a lot from following their debates. Family and friends sometimes ask me some of these questions. While there are a few on which I can at least offer an informed opinion, for most of these questions there are people much better qualified to answer than me (and I agree with Carissa about humility, civility, and uncertainty in offering these opinions).

I was asked one such question the other day by a friend, so I'm here to ask the same question to the many readers and bloggers of PrawfsBlawg who are better qualified to answer than me. Assume a president committed a federal crime and pardoned himself. Who has standing to challenge that pardon, and how would they go about bringing a claim? I guess a federal prosecutor could just bring charges against the president, and leave it up to the judge to decide the constitutionality of the self-pardon. Even if that's right, it just raises another frequently-asked question nowadays about whether a sitting president can or should be indicted, particularly for something like obstruction of justice. If he can't or won't be indicted, then I'm not sure that there is a process to challenge the self-pardon. I've tried to follow the debates on these kinds of issues on blogs and Twitter, but I don't think I've seen this question discussed (and sorry if it has and I've just missed it).

Posted by Rhett Larson on August 11, 2017 at 10:00 PM | Permalink | Comments (9)

In This Week's News: Some law schools accept the GRE. Conservatives' heads explode.

To a certain breed of conservatives, even the term "diversity" is a red cape in front of a bull.

How else to explain this bizarre headline, and the unfortunate article more generally, to Georgetown Law Center's announcement that it will start accepting the GRE as an alternative to the LSAT.  Northwestern made this announcement just before, joining Arizona and Harvard in the group of law schools (presumably to expand) to consider the GRE as one alternative test to the LSAT in evaluating law school applicants.

From that, we get treated to a polemic about how this move represents the decline of western civilization -- or, at the very least, the decline of law schools' commitment to admitting highly-qualified students. 

We can and should debate the complex question of law school testing and, with it, how best to evaluate the skills, credentials, and experience of students to law schools.  Yet, the argument we made, along with the other law schools who have announced this move, have precious little to do with an end-run around standards and quality.  Nor do any of us presume that applicants-of-color are unable to achieve success either on the LSAT or in law school or in the profession.  Rather, we said, and we mean, that we are looking to expand the pool of interesting, talented candidates, especially from STEM fields, who might view the strictures of the LSAT -- the narrowness of the test, as well as the procedures by which it is administered -- to create a disincentive to considering law school.  Nothing here about lower standards; indeed, nothing here about the quest to, in Professor William Otis' extravagant words, "adjust the student body to reflect the ethnic makeup of the electorate."

So, to Ward Connerly, Prof. Otis at Georgetown, and others, keep moving along folks, there's nothing to see here.

 

Posted by Dan Rodriguez on August 11, 2017 at 03:31 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (9)

First Amendment procedure

Sarah Palin sued The New York Times for defamation over a June editorial (following the congressional ballgame shooting) that linked Palin's rhetoric to the 2011 Gabby Giffords shootings. Palin alleges The Times writers acted with actual malice, in part because the paper had published numerous news stories showing there was no link between Palin's rhetoric and Jared Loughner. The Times moved to dismiss, arguing that the complain did not plausibly plead actual malice. In a brief order yesterday, Judge Rakoff ordered the author(s) of the editorial to appear at an evidentiary hearing next week, for questioning about their awareness of these prior news stories.

The prevailing view among civ professors online seems to be that the order is inappropriate.

Continue reading "First Amendment procedure"

Posted by Howard Wasserman on August 11, 2017 at 12:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Teaching via treatise

Classes begin at FIU on Monday.*

[*] Although I must confess to wishing we had another two weeks of summer this year. This is unusual for me--I enjoy the semesters more than summers, because I like the rhythm and routine of teaching. But I am in the midst of three projects and believe I could finish all with an extra two weeks before having to balance teaching time. 

I am trying something different in Federal Courts this semester. I am not using a casebook, but instead am working primarily from two treatises (Erwin Chemerinsky's comprehensive Fed Courts treatise and Jim Pfander's Principles treatise), along with the Constitution, statutes, a handful (maybe 10) of recent cases, and some problems. I have been toying with this for a couple years and finally decided to pull the trigger this year. A few thoughts went into this. I sensed that in upper-level classes, many students used the treatises to prep rather than reading the cases.  My class discussion is organized in a treatise format--we do not work through individual cases, but discuss the doctrine at a macro-level whole, so it may be better to have them read and prepare in a similar format. And the author of one of the books convinced me that my spoon-feeding concerns ("the students are not having to figure out the rules of standing for themselves, Chemerinsky and Pfander are telling them the rules") were overstated and that the class discussion can be as rigorous. Plus, as I will remind the students on Monday, they will have more total pages of reading this way, and while it may take less time or require less re-reading, they still must read with care and preparation to engage in the discussion.

If I like how it works, I plan to follow the same format in Civil Rights in the spring, using my treatise (new edition forthcoming).

Posted by Howard Wasserman on August 11, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (21)

Thursday, August 10, 2017

The Case for Law School Part III

This is the third in a three-part series in defense of law school. One more really important reason to go to law school:

3. A Law degree is a tangible skill for people who lack other tangible skills. Now don’t get me wrong, lawyers don’t cure cancer, or fix broken bones or even cars, we don’t build amazing things, and we certainly don’t invent things. So we really lack important tangible skills that make the world run. That is unfortunate. We need people out there building and creating and fixing tangible things. But there are a lot of people who realized (or are realizing) as they go through wood shop and physics or sewing or cooking class that their skills may not be tangible in nature. Or they don’t like the lifestyle that one of the jobs with a tangible skill provides them. So they decide they want a white collar office job. This would put these individuals in the same category of white collar paper/email shufflers as business people, academics, and most office jobs (you name it: HR, advertising, public relations, marketing, sales, etc.)—however I would argue that lawyers are well placed in this cohort as they have a tangible skill. It hasn’t always been this way before law schools existed and state bars limited who could practice law, but the way it is now, you need a law degree and to pass the bar to practice law.

And a law degree (and passing the bar) provides a student with a tangible skill with which to make money and/or help people. Lawyers are often necessary to help with serious family and custody disputes, immigration problems, tax, trusts, estates, criminal matters, personal injury disputes, contracts, business mergers and so on and so on. The skills to practice these areas of law obviously require more training after law school, but the basis starts at law school. And if a student is willing to work hard and go out there and serve the underprivileged, there are PLENTY of jobs out there. Most jurisdictions have lists for lawyers to sign up who are willing to take cases at reduced rates. This is also available at the federal level. Immigration and criminal cases are always more plentiful than lawyers to help process them and represent defendants in court.

 In this past year, lawyers rallied all across the country to help those who were affected by the Trump immigration ban. Many lawyers are still engaged in volunteer efforts towards this cause. And doesn’t that feel great to be able to do more—something tangible—than just complain on facebook, or cry into your pillow, or write your Congressperson to complain about policies you feel are unjust or constitutional? In other words, there is plenty of legal work to go around and plenty of good to do with it if you have the desire. The tangible skill of law can also help you make a great living. You may not be as rich as if you invent something really useful (like this exercise board I saw on Shark tank that made me rethink my entire life) but there will be work for you if you are willing to work hard and a pretty good income relatively.

Having a skill is not something I really thought about when I was graduating college. I had majored in a social science and hoped for a PhD in political science and to teach after. And although that would have been fascinating, it would not have provided me with skills to be able to represent many criminal defendants and some big companies throughout my career. This is not something students may think about when they are considering what to do after their undergrad, so I put it out there for consideration as a huge bonus to a law degree.

There are plenty more than three reasons to go to law school—I’d love to hear others from you all—but these are my most important three.

Posted by Shima Baradaran Baughman on August 10, 2017 at 01:18 PM | Permalink | Comments (9)

Is "The Federal Judiciary" Necessary?

I have just made my way through Richard Posner's latest book (as of the time of posting), The Federal Judiciary: Strengths and Weaknesses. Not without difficulty: The second half of the book was more of a slog than the first, and finishing it was more an act of will than of love. Before making two points about it, I want to offer some context; another bit of context, a confession, follows at the end. So: 1) I reviewed and criticized Posner's last book, Divergent Paths: The Academy and the Judiciary; 2) in the course of discussing William Domnarski's recent biography of Posner (note that I screwed up Domnarski's name in that post; my apologies), I suggested that it is appropriate and relevant to ask whether Posner has declined and whether his recent work and other statements suggest that it may be time for him to retire (I did not answer the question; I just said it was a natural and important question to ask and criticized the apparent reluctance to do so, for him and for Justice Ginsburg too); 3) I recently raised that question again, albeit in the course of praising something he had written this summer; and 4) as I have often noted, Posner has long been my favorite legal writer and thinker. (Not my "hero." I think lawyers and legal academics are better off without heroes and hero-worship. The famous dedication to John Hart Ely's book Democracy and Distrust is moving, captures a common mentality of lawyers and legal academics, and is a mistake.) If I think there are good reasons to ask whether Posner has declined, these are the questions of an admirer, not a hater. I find moving his quotation from Yeats at page 376, beginning, "Grant me an old man's frenzy,/Myself must I remake/Till I am Timon and Lear," although one might recall that on some interpretations Lear begins by displaying pride and narcissism, harms his kingdom by denying his own aging and death, and comes to madness. 

A longtime critic of Posner (and admirer and former clerk of Posner's nemesis, Justice Scalia), Ed Whelan, has a series of posts at The National Review's website detailing and lambasting the book. (The best posts, in my view, are this and this one.) I do not share all of Whelan's perspective or agree with all of his criticisms of Posner or the book, although some seem on-target. But I write here to offer a partial defense of the book and to raise one general, critical question about it. 

First, the book isn't bad! That's faint praise, but seems necessary in light of Whelan's widely shared posts, which might well lead readers to wonder whether to bother with the book at all. (Whelan does acknowledge that there are good bits and pieces here and there, but the point may get lost amid all the disparaging remarks.) With the caveats noted below, I enjoyed a fair amount of the book, especially the first half. As with a number of Posner's books, even when the book as a whole is questionable or seems loosely put together, there are many tidbits within it to enjoy and profit from. There are reasons to read it. 

For example, as I noted in my last post, I just taught the Intro to Law class for entering 1Ls at my law school. I told my students that it is common for law students to seek definite definitions for and applications of frequently used legal phrases ("intermediate scrutiny," "clearly erroneous," and so on), and common for lawyers to argue over those phrases in the manner of those who think some definite meaning can be derived from them, an exercise that easily turns into a kind of scholasticism. I told the students that such phrases rarely if ever have a precise or fixed meaning, and that--their understandable desire for certainty notwithstanding--it would be a mistake for them to begin their legal educations, or careers, under the illusion that most (or any) legal/judicial language of this sort can be reduced to some kind of mathematical formula. Such phrases should be understood as practices, or as placeholders standing in for an activity calling for judgment, and perhaps summing up some kind of underlying concept or policy, but not a definite one. Posner has a lengthy (too lengthy) section (especially 239-76, but really most of chapter 3) discussing various standards of review and other legal phrases. He argues, by picking them apart, that "there are no satisfactory answers to my questions about the meaning of familiar legal phrases commonly invoked by lawyers and judges without any clear idea of their meaning," and that they "exemplify not only concealment and indirection but also sheer superfluity in legal discourse." The discussion would have been better if it had been shorter, and some of the individual criticisms seem too cute. But it's useful and refreshing. Law students, lawyers, and judges would benefit from reading it.      

The real question is not whether the book is bad, but whether it is necessary. To his credit, Posner announces on the second page that the book is what he calls a "macédoine," a "medley or jumble." I would call it a "gallimaufry," a confused medley or jumble. Also to his credit, he acknowledges the "somewhat unconventional" format of the book, which "contains a good deal of quoted material." "A good deal" is an understatement. The book is about 430 pages long. Of that, some 130 pages consist of long block quotes (I tried not to count short ones), reprints of his own writing (including several judicial opinions), and most strikingly long sections of other people's writing, including lengthy judicial opinions from his own and other courts. Some are useful. Many are useful but could have been shortened or summarized. Some are not: Did we really need five and a half pages of a Slate dialogue between Posner and Akhil Amar? A few are embarrassing: The introductory chapter contains a three-page laudatory review of his last book, from the Los Angeles Daily Journal. At times this feels less like a book book and more like a scrapbook or commonplace book. Much of it feels loosely sutured together. As Whelan notes, it is full of digressions and divagations--often true of Posner's books and usually worth the diversions, but in this case ultimately tedious and marked by abrupt transitions. Imprisoned in this fat book is a much thinner one. I would complete Cyril Connolly's quote and say "wildly signalling to be let out," but I don't see much evidence of that. The epilogue feels tacked on and perfunctory. One understands the desire to acknowledge the election of Donald Trump, but it doesn't add much, unless reprinting the four-page open letter to Trump from "Constitutional Law Scholars" can be considered a fruitful addition. It doesn't seem so to me, especially given that it's an open letter and easily accessible.

(A more substantive side note: Religion plays a weird role in the book, getting numerous brief but ominous references. Posner quotes himself saying that "our deepest values (Holmes's 'can't helps') live below thought and provide warrants for action even when we cannot give those values a compelling or perhaps any rational justification. The point holds even for judicial action. The judge [inevitably] . . . preserves a role for conscience." But he returns again and again to only one "can't help" or "deepest value," religion, often highly speculatively and generally suspiciously if not disparagingly. The closest he comes to a justification for this fixation is a short passage--immediately after arguing with seeming approval that judges are inevitably influenced by their "deepest values" and "conscience[s]," and he notes elsewhere in the book that judges' many priors include religion--offering a cursory and tendentious argument from the Establishment Clause. That's not enough of a hook on which to hang his repeated, abrupt, almost obsessive references to religion. He should have said more about it, or less.)      

I said I especially enjoyed the first half of the book. That's no surprise. I also enjoyed it when I read most of it in his Divergent Paths, Reflections on Judging, How Judges Think, and his two editions of The Federal Courts--not to mention pages and pages elsewhere excoriating the Bluebook. Of course there are some changes and additions, especially from his earlier Federal Courts books. But a good deal of it is a mere reprinting or restatement of recent writings without building on them. The closest to a justification for this extreme repetitiveness that I can find is his statement (at page 393) that his oft-stated skepticism and criticisms are "very largely ignored" and that "[c]riticisms by me that seem irrefutable are seemingly not even noticed, as if I were exhibiting paintings to a blind man or singing to a deaf one." I would urge him to take more comfort than that: I think much more attention has been paid than these quotes suggest. Even if I'm wrong, I don't think it justifies repeating, quoting, or paraphrasing all this yet again and so soon after his last three books on these subjects. One despairing memoir from Lear following his displacement would have been enlightening; four or five would have been tedious, and provided some evidence that it was indeed time for him to exit the stage.

One must note that some books, including some of Posner's previous books, consist largely of reprints of published articles. Maybe that weakens my general point a little, but not much, I think. Some of these kinds of books are indeed superfluous. But in most cases those articles are less likely to be encountered by the general reader, and there is some value in their being collected in book form. The best of them have a unity of purpose that sheds light on the collection as a whole, and make meaningful changes to the articles or add connective tissue that contributes a new element or greater clarity to the work, making it more than the sum of its parts. The books themselves, as books, have some purpose and novelty, even if the material is collected from elsewhere. There's a difference between that and simply repeating what one has already said, at length and as well or better, in previous and recent books.    

In sum, I don't think the book was or is necessary. And to that I would add (with the confessional caveat below) that I doubt in particular that it was necessary for Harvard University Press to publish it. Perhaps that suggests that I place too much faith in university presses, especially elite ones, and am engaging in a form of snobbery or credentialism. I hope not. But I do think that university presses have a valuable niche role to play in publishing, and that elite university presses ought to make the most of that role. Some presses--Oxford and Cambridge come most readily to mind--maintain huge lists. Others, like Harvard or Yale, do not, and should be selective in forming their relatively small booklists. They still have some importance (to me, at least) for their signaling function or imprimatur. The books they publish should deserve that imprimatur and add something to the literature. This one doesn't. (And, as I have suggested, it was not edited as well as one might hope or expect, although Posner thanks the Press for "critical comments on the structure and substance" of the book. I credit that statement, but it might tell us more about the state of the earlier drafts than about the quality of the final product.) A trade press could have published it, perhaps in softcover only. (I haven't read Justice Ginsburg's In My Own Words, which is mostly a collection of speeches and other ephemera along with some co-authored biographical material. Perhaps it is a work of genius. But Simon & Schuster was an adequate, and probably more profitable, home for it; it didn't need and probably didn't merit the imprimatur of a university press.) Or he could have kept working on it until it made a serious and new contribution.  I got some pleasure from the book--occasionally from new things, but mostly from reading what I had basically already read in his other recent books. I'm not panning it, as such. But I doubt strongly that it was necessary. 

* A final confession seems appropriate. I have published one book with Harvard University Press and, more relevantly, have another book in progress with them. For "in progress," read "incredibly late." Some of the reasons it is so late are fair ones: several surgeries and lots of chronic pain. Others are lamentable but understandable: I decided it needed an empirical section, and that is proving more difficult than I thought, something I ought to have weighed more heavily when estimating its date of completion. None are sufficient. I was greatly cheered by this recent article, but I'm not counting on similar forbearance, and I'm terribly embarrassed and frustrated by my lateness. I wrote last year about the effects that both chronic pain and the drugs used to treat it can have on one's productivity as a writer. That is an explanation, not an excuse--others have done more while laboring under greater burdens--but it doesn't fully capture how frustrating and demoralizing it can be to try to get things done when you feel like only half a fully functioning person. Especially given my own ambitions, I would very much like to be writing more and faster right now, as I used to. I can only apologize that I cannot, and try to press on. In any event, it didn't seem fair to criticize Posner's book--which has the comparative advantage to my own of actually existing--and especially to reserve some of that criticism for the Press, for publishing it in this form, without acknowledging the plank in my own eye.    

 

        

Posted by Paul Horwitz on August 10, 2017 at 10:12 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, August 09, 2017

JOTWELL: Kaminiski on Lobel on disruptive platforms

I am honored to read Margot Kaminski's (OSU) new Jotwell essay Disruptive Platforms which reviews my recent article, Orly Lobel, The Law of the Platform, 101 Minn. L. Rev. 87 (2016). In The Law of the Platform I analyze what I refer to as the third generation of the Internet: online apps that disrupt offline services, most iconically represented by Uber and Airbnb. The article unpacks the economic, regulatory, and social drives for the rise of the platform economy and develops a framework for policy makers to consider the vast range of legal challenges that these new companies currently face. Kaminski describes The Law of the Platform as "rich, complicated, and ... well worth reading for anyone following changes to technology and the law." She does however call me a "platform optimist" and is concerned that I romanticize "a lighter regulatory touch in the area of technological development, even while recognizing the legitimacy of a number of consumer concerns." In particular, she raises questions the downsides of lighter enforcement and the risks of exacerbating power disparities through data collection and private digital governance. Here is a taste of this part:

The last third of the article ventures into more dangerous territory. Lobel has previously done important work on the relationship between public regulation and private (or public-private) governance. She closes The Law of the Platform by returning to this topic. Where traditional regulation fails, Lobel argues, platforms themselves can through private “regulation” ensure consumer trust and a certain degree of consumer protection. Platforms do this by obtaining insurance, by voluntarily running background checks, and through rating and recording systems that track all transactions on a platform. It is this last form of governance that most excites Lobel, and most worries me.

I take Kaminski's warning very seriously and it is an area I'd like to research more. The Law of the Platform lays out the initial framework for analyzing and debating this new wave of digital business models and as Kaminski correctly notes, each one of the areas discussed in the article, including tax, consumer protection, occupational licensing, antitrust, employment and labor law, zoning, and discrimination, poses a myriad of challenges and new questions.

I've begun to respond to some of these challenges in several sister articles to the Law of the Platform. I engage with the questions of employment law, including the classification issue of drivers and other workers on the platform, in a talk I delivered when I was honored to give the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals last year. The lecture is now published as an article named The Gig Economy and the Future of Employment and Labor Law.  In another new article, Platform Market Power, Kenneth Bamberger (Berkeley) and I research the questions of antitrust, market concentration, new entry and the risks of dominance and inequities through data collection (soon on SSRN or email me for a copy). And I continue to analyze whether and how the platform can reduce transaction costs in all three stages of the deal in an essay, Coase & the Platform Economy, forthcoming in the Cambridge University Press Sharing Economy Handbook 2017 (Nestor Davidson, Michele Finck & John Infranca eds.) There is still much more to study and debate and I am very grateful for Kaminski’s excellent review pushing us forward as we grapple with the rise of the platform.

 

 

Posted by Orly Lobel on August 9, 2017 at 07:59 PM | Permalink | Comments (0)