Saturday, August 01, 2015

What I love about SEALS discussion groups...

I'm happy to be back on Prawfs blogging this month.  I have to admit that I have been on Prawfs a lot less since Danny died, since it reminds me so much of him, but I'm powering through those memories and hopefully I can get through some thoughts this month.  I love that he helped start such a great blog and that is lives on beyond him.

So, I love SEALS.  I know SEALS can get a bad wrap from some (maybe because it is always at an awesome place on the beach) but I have found some of the most informative and interesting panels and discussion groups at SEALS.  I want to talk about the discussion groups for a moment.

This week at SEALS, I was fortunate to be asked to participate in two discussion groups.  The first was discussing innocence from different angles, organized by two greats Lucian Dervan (SIU) and Russ Covey (GSU).  The other (tomorrow) discussing Vices (drugs, porn, gambling, etc.) and was organized by my favorite ex-cop, Seth Stoughton (SCU).  Not sure I have to sell you on the merits of the second panel (because who doesn't want to talk about drugs and sex for three hours? (and it's tomorrow so I can't report on it yet) but the first one was a great learning experience for me.  In the roundtable discussion group on innocence, we were able to hear from former defense attorneys and prosecutors, ABA section chair Bruce Green (thanks Bruce for coming), people with expertise on pretrial and sentencing innocence issues, and people who were for and against innocence (ok, not really on the last part, but there were *some* differing opinions as I recall).

I love discussion groups in general because it is great to keep a discussion moving.  And as much as we all love to talk for 15 minutes, and can certainly fill an hour or two if necessary, it is nice to be forced to keep your comments to 5 minutes.  It takes discipline and it really helps you focus on your key point and arguments supporting it.  I love the exercise and efficiency of it because you can learn about so many more people's work and get to know a lot more people in your field in a lot shorter time.  Again, it is efficient, it is quick moving and I think really informative.  I would love to see this format spread to other conferences over the traditional panel format.

Would love to hear others' thoughts about SEALS or discussion groups or anything else.

Posted by Shima Baradaran on August 1, 2015 at 09:50 PM | Permalink | Comments (1)

Rotations

August is upon us, which means that classes and submission season both loom and that it is time to say thanks and goodbye to our July visitors--Jeff, Catherine, Robin, Leigh, and Heather.

And it means welcoming our August visitors. Returning to Prawfs are Jessie Hill (Case Western), Ari Waldman (New York Law), and Shima Baradaran (Utah). Joining us for the first time are Fabio Arcila (Touro), Andrea Boyack (Washburn), and Bertrall Ross (Berkeley). Welcome and enjoy the month.

Posted by Howard Wasserman on August 1, 2015 at 05:07 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Friday, July 31, 2015

Silicon Valley, Meet Labor Law

I worked on Google’s Global Ethics & Compliance team from 2007-2010 and at that time the thought of labor law having anything to say about the happenings of the Bay Area tech scene seemed unimaginable to most people – including those practicing law. Employment, sure, but not labor. (I’ve found this to be a bit true in academia as well – labor conjures up visions of coalminers or public school teachers but definitely not anybody working at tech companies.) Well, the other day a friend sent me a Wired article titled, “what happens when you talk about salaries at Google” and it reminded me of why that view can get companies into some real trouble.

The article itself is just a string of tweets from a former Google talking about what happened when she decided to conduct a salary transparency experiment at Google. Long story short, she and some coworkers got talking about salaries on the internal social network (I take it she’s talking about one of Google’s many internal email list, like misc), decided to make a spreadsheet where employees could add their own salary information, and then posted a link to the form on her internal profile.

The thing took off. Other people built the spreadsheet out to include fields on gender and a bunch of other stuff that made it possible to get even more out of the data, as it wont to happen when a bunch of smart people get going on something they find interesting (this quality is also a big part of what makes working at Google great). The next week the Googler who started the project was “invited” (I love that) to talk with her manager. Apparently her manager and the higher ups weren’t happy about the project. And, according to this Googler, her manager said “don’t you know what could happen?” And then something else interesting happened, though it takes a second to explain.

Continue reading "Silicon Valley, Meet Labor Law "

Posted by Heather Whitney on July 31, 2015 at 12:49 PM | Permalink | Comments (1)

The End of Ambition?

60-days-green-white-mdI hear that sixty is the new forty.  I hope so.  It's the end of the month, and I'm thinking about ends.  And if the bromide is true, I'm premature.  But here's a trigger warning anyway: what follows is about "ought" fading into "is" or "becoming" fading into "being." It's also hopelessly self-indulgent, but my excuse is that I just got the schedule of faculty meetings for the next year.

By a quirk of career fate, I'm a bit older than most of my professional cohort (in this incarnation).  Next year  will be the fortieth anniversary of my first day of law school, something that flips me out, but also means that I was puzzling through Groves v. John Wunder before the majority (I suspect) of the readers of this blog were born. And it means that most of you will have no conception at all of the inner sense of being closer to the end than to the beginning. There's a hint of it in somebody like that young whippersnapper, President Obama, realizing that he has run his last campaign, but he really does have a whole career ahead of him still.  (On January 20, 2017, he'll be 55, which is only a year older than I was when I got a full time permanent faculty position.)

Running the last campaign is a nice metaphor, because campaigns are about becoming. Careers are a continuing series of campaigns - getting a job, making partner, getting tenure, getting promoted. NPR just ran an interview with Woody Allen, who turns 80 (!!!!) on his next birthday. To the extent that professors create through their writing, those pieces, like the movies that Woody keeps making, are becomings. But those are slightly different becomings, more like unfoldings, and not like steps up a ladder.

Continue reading "The End of Ambition?"

Posted by Jeff Lipshaw on July 31, 2015 at 08:46 AM in Blogging, Deliberation and voices, Lipshaw | Permalink | Comments (1)

Thursday, July 30, 2015

Law-of-Baseball Bleg

I already have the title for a future paper--"Tie Goes to the Runner" and Other Myths of Baseball Rules. The paper will explore baseball rules that everyone believes/assumes are one way and that often are captured in a common, pithy cliche; in fact, they are entirely different, if not the precise opposite, from what everyone thinks. For example, the one from the paper title. As kids, we always yelled "tie goes to the runner" to justify having a runner be safe when the play was too close to call; in fact, the runner is out unless he affirmatively beats the throw--in other words, tie goes to the fielder (Bruce Weber's As They See 'Em has a great discussion of this).

Now I just need some content. So far, I have identified five rules that fit the bill, thanks in part to suggestions from participants in a SEALS discussion group earlier this week: 1) Tie goes to the runner; 2) Infield Fly Rule only applies to balls on the infield; 3) "One base on an overthrow"; 4) "Hand is part of the bat" (so getting hit on hand when hand on bat is a foul ball); 5) The runner cannot run out of the baseline (this rule, and the common misunderstanding of it, came up during the 2013 World Series).

Can anyone think of others? Suggestions welcome in the comments.

Posted by Howard Wasserman on July 30, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (17)

Wednesday, July 29, 2015

SEALS thoughts

For a variety of geographic and other reasons, my SEALS participation this year involved just two days of driving the 50 miles to the Boca Resort. And I will have to miss the MarkelFest! Happy Hour. I did have two random thoughts after the jump.

1) I was struck by what I thought was the rise of the discussion group and an initial sense that discussion groups now outnumber panels. It turns out there still are more panels, although the numbers are almost even (excluding the New Scholars panels), but that still reflects a pretty significant increase in the number of discussion groups. And I see the benefits of having more discussion groups--they allow us to hear from more voices about more things and create more of a conversation than a panel of often-unrelated talks. Even the one panel I did (the SCOTUS Individual Rights Review) was conducted as more of a discussion format and was, I think, a lot of fun for just that reason.

2) Kudos to SEALS on the two-sided name tags, so that the name is showing no matter which side the plastic card is facing. Nothing worse than trying to place someone but their card is flipped over.

Posted by Howard Wasserman on July 29, 2015 at 05:51 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The Virtues and Vices of Casebook Supplements

My co-authors (Bill Banks, Steve Dycus, and Peter Raven-Hansen) and I have just put the finishing touches on the 2015-16 supplement to Aspen's (or is it Wolters Kluwer's?) National Security Law and Counterterrorism Law casebooks, which checks in just under 500 pages this year. Some of that length can be attributed to (1) the seismic changes that these fields have encountered in recent years (thanks, Obama!); and (2) the elapsed time since the last complete editions (2011 for the NSL book; 2012 for the CTL book). Indeed, we're already hard at work at the next editions of each of the books, which, if nothing else, should be ready in time to defeat the need for a 2016-17 supplement.

As pedagogically useful as putting together an annual supplement is, though, it got me thinking about the virtues and vices of casebook supplements more generally. And so I thought I'd sketch out, below the fold, what I see as some of the principal advantages and disadvantages of these enterprises--from the perspectives of authors, adopters, and users. But more than anything, I'm curious if folks agree with my lists--or think I'm missing obvious pros and cons to the world of the casebook supplement.

Continue reading "The Virtues and Vices of Casebook Supplements"

Posted by Steve Vladeck on July 29, 2015 at 11:19 AM in Life of Law Schools, Steve Vladeck, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (28)

MarkelFest! at SEALS Thursday night

The annual MarkelFest! at SEALS will take place at 9:30 p.m. this Thursday, July 30,  at the Palm Court Bar at the Boca Resort. Steve (unfortunately, the only PermaPrawf who will still be there on Thursday) will be your host.

Apologies for the late notice. But spread the word around SEALS and thanks to everyone for helping maintain this SEALS tradition.

Posted by Howard Wasserman on July 29, 2015 at 09:00 AM in Blogging, Howard Wasserman | Permalink | Comments (1)

Tuesday, July 28, 2015

A Failure in the Market for Altruism

Earlier this month it came out that Whole Foods had been systematically overcharging for pre-packaged food, at least in New York. And that wasn’t the first time. Back in 2012, an investigation led by city attorneys in California also uncovered overcharging and Whole Foods ended up paying $800,000 in penalties in addition to starting a new internal compliance program to ensure it didn’t happen again. The company’s recent issues also rekindled criticism (originally raised back in 2014) that some of its fancy cheeses are the product of prison labor, though that fact is not disclosed to consumers.

At least in response to the pricing issue, the CEOs issued a video “apology,” stating that “straight up they made some mistakes” but those mistakes were unintentional, evinced by the fact that, “the mistakes are both in the customers’ favor and sometimes not in the customer’s favor.” And they were going to fix it first and foremost by giving workers more training and hiring a third-party auditor to make sure their practices are improving.

At first I found all this frustrating. The New York Department of Consumer Affairs did not find just pricing mistakes, where about half were under-charged and the other over. No, it found, as best as I can tell, systematic overcharging. So the CEOs reasoning for why customers should believe it wasn’t intentional is, at least without some actual evidence, misleading. And moreover, given that, the chances that the pricing issue was a result of employees lacking proper training strikes me as improbable. The stores seem to have had a policy of not weighing their pre-packaged products. That’s not a training issue at all. So in short, the whole thing smelled bad.

But there’s another question here. Whole Foods isn’t just any company. Its CEO, John Mackey, literally wrote the book “Conscious Capitalism.” (For those with shorter attention spans, he also wrote a HBR article on the same). The whole idea is that Whole Foods and others like it are “galvanized by higher purposes that serve, align and integrate the interests of all their major stakeholders … They endeavor to create financial, intellectual, social, cultural, emotional, spiritual, physical and ecological wealth for all their stakeholders” where the ultimate goal is to “create lasting value as the world evolves to even greater levels of prosperity, helping billions of people flourish and lead lives infused with passion, purpose, love and creativity – a world of freedom, harmony, prosperity, and compassion.”

Given all these moral platitudes (platitudes, to be clear, at least some customers buy into), shouldn’t Whole Foods be held to a higher standard? And if they are not – if between the prison labor and pricing issues not a single customer changed their purchasing habits, what are we to think about the possibility of consumer activism (seen through buying things that are fair trade or union made or sustainably sourced or green or from a “clean” supply chain, etc.) as a means to making the world better in any real sense?

In short: what are people who are trying to buy not just a product but a product made in conformity with other moral commitments doing? Are they paying more money simply so they feel the warm glow of being a do-gooder, irrespective of whether they actually are doing good? Or are they attempting to manifest in their purchasing decisions a commitment to substantive moral ends?

Consumer activism has unquestionably been a part of American history for quite some time. Quaker abolitionists promoted the buying of slavery-free cotton. I’m reading a great book right now about consumer organizing during the Seattle labor movement of 1919. This stuff can be real. But is it today? And if it’s not, how might we correct that market failure? Should we?  

Posted by Heather Whitney on July 28, 2015 at 01:12 PM in Corporate | Permalink | Comments (4)

The Art of Lawyering and Beyond

PkosuriPraveen Kosuri (left), the director of Penn Law School's entrepreneurship clinic, has a neat new piece, Beyond Gilson: The Art of Business Lawyering.  Here's the abstract:

Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients. Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.

What Professor Kosuri captures is that it’s a complex world out there, and trying to distill the essence of business lawyering through one particular science (rather than art) is going to be radically incomplete.

Nevertheless, his approach continues in an analytic tradition of identifying characteristics from the outside, and suggesting essentially that others, for want of a better word, mimic those characteristics. My view ups the stakes even more, because I think being a great business lawyer is not only beyond the acquisition of technical skills, it’s also beyond the acquisition of art. Stated more plainly, to learn the art, to acquire the characteristics Professor Kosuri describes, you have to want them first.

Which raises the question of teachability. I’m pretty sure we instill this affect, this emotional predisposition, more through our modeling of behavior than we do by way of teaching through our words.  There's been a lot of discussion of Atticus Finch in the last few weeks, and who knows how many people Harper Lee inspired to be lawyers through To Kill a Mockingbird (and, hence, the downer of finding out that he may not have been as godlike as previously thought). I confess that I have never read To Kill a Mockingbird, and have only seen parts of the movie. My lawyer hero was Henry Drummond from Inherit the Wind, the fictionalized Clarence Darrow, and his cross-examination (taken in large part from the Scopes trial transcripts) of Matthew Brady, the fictionalized William Jennings Bryan, was the apotheosis of lawyering.

Well, you grow up and it turns out that making a living as a litigator in, say, 1979 or 1985 isn't (for most of us) like trying the Scopes case. But that doesn't diminish the impact of "be like" as the source of one's desire to learn a particular way of practicing one's craft.

And isn't the hardest place either to teach or model "be like" from behind a podium in a lecture hall?

Posted by Jeff Lipshaw on July 28, 2015 at 08:02 AM in Article Spotlight, Corporate, Lipshaw | Permalink | Comments (0)

Monday, July 27, 2015

Call for Papers: "Doing Justice Without Doing Harm"

Call for Proposals

“Doing Justice without Doing Harm”

Pepperdine University School of Law, Malibu, California

March 11-12, 2016

 

We hope you will join us for the conference discussed below.  Mark your calendar, submit a proposal, and forward this message to blogs, list serves, and people who might be interested. Speakers already confirmed include the following: 

 

Barbara E. Armacost, Professor of Law, University of Virginia School of Law.

Rabbi Elliot Dorff, Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy, American Jewish University

Brian Fikkert, Professor of Economics and Community Development and the founder and President of the Chalmers Center for Economic Development at Covenant College.

Richard W. Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, Notre Dame Law School

Gary Haugen, founder and president of International Justice Mission.

Richard H. Sander, economist and Professor of Law, UCLA School of Law

Nicholas Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology at Yale University and Senior Research Fellow in the Institute for Advanced Studies in Culture at the University of Virginia

 

Continue reading "Call for Papers: "Doing Justice Without Doing Harm""

Posted by Rick Garnett on July 27, 2015 at 04:08 PM in Rick Garnett | Permalink | Comments (1)

Sunday, July 26, 2015

Did Cosby's Lawyer blow the Attorney-Client Privilege?

Monique Pressley, a Public Defender Service alum, among other distinguished credentials, is one of Bill Cosby's new lawyers.  In an appearance on CNN, she explained that, on the one hand, "I'm not going to reveal client confidences. I'm counsel for Mr. Cosby and anything that he says to me is said in confidence."  But in the next breath she explained: "when his attorneys speak we are speaking for him. So when we speak and say that he denies all of the allegations and accusations then that is the statement of Bill Cosby."  I wonder if she might have blown the attorney-client privilege with that sort of statement. 

Many courts hold that "[t]he attorney-client privilege does not apply to communications that are intended to be disclosed to third parties or that in fact are so disclosed. It has been held that the disclosure of any meaningful part of a purportedly privileged communication waives the privilege as to the whole."  United States v. Rockwell Int'l, 897 F.2d 1255, 1265 (3d Cir. 1990).  If a statement "was intended for public relations purposes rather than legal purposes" it "is not privileged." Burton v. R.J. Reynolds Tobacco Co., 200 F.R.D. 661, 677 (D. Kan. 2001).  I have no doubt that an attorney legal review of client information to be sent to a public relations firm could well be privileged.  But if, as apparently happened here, a client engages attorneys to directly perform public relations rather than legal functions--or in any event to be a media representative--the client's statements to them are not privileged.  So, Ms. Pressley, do tell--what else did Mr. Cosby say?

Continue reading "Did Cosby's Lawyer blow the Attorney-Client Privilege?"

Posted by Jack Chin on July 26, 2015 at 11:09 AM | Permalink | Comments (10)

Friday, July 24, 2015

Liability for Lifesaving Inventions?

I saw that Evenflo has produced a new car seat (which will be sold by Walmart), which is designed to "jingle" when a child is left in the car seat after the ignition turns off.  In light of the seemingly increasing number of horrific deaths of children accidentally left in carseats, this new car seat could be an important, lifesaving device.  And, yet, the lawyer in me found myself immediately wondering about the liability issues, and accompanying normative questions.  Walmart's director of corporate communications has apparently advertised that "this car seat will eliminate the chance of a baby being forgotten in a car."  Of course, that is only true if the car seat is used properly, in a compatible car, with compatible technology, and if the device doesn't malfunction (among other things).  The actual car seat and instructions will no doubt contain such warnings in bold print all over the place.  And yet, despite such warnings, will a product that is designed precisely to ameliorate inattention (which, thereby, may reasonably encourage more of it), and which is advertised publicly as "eliminating the possibility of a baby being forgotten in a car" really be able to escape liability if some slight inattention in the use of the product causes it to malfunction?  In this regard, if this particular product does not work as a result of misuse, it seems that the legal issues may be different than a run-of-the-mill product that fails to function properly because of misuse.  Since the very purpose of the product is to protect against inattention, does it somehow bear a heavier burden to work despite inattention in use?  In assessing such a claim, would a court take into the positive externalities (for the poor, helpless children otherwise trapped in car seats) from the product (in the cases in which it works)? Although I have not thought about torts in a rigorous way in quite some time,  I do not believe there is a formal, doctrinal way to consider such positive externalities in assessing a liability claim regarding the carseat.  And yet, it seems that normatively it should matter that an overly sensitive liability regime may discourage the production of this lifesaving product, and the positive externalities for the otherwise trapped children.  What do others think? 

Posted by Leigh Osofsky on July 24, 2015 at 01:38 PM in Books | Permalink | Comments (2)

Thursday, July 23, 2015

Hiring Notices, University of Alabama School of Law

I'm happy to pass along these hiring notices for my law school. Feel free to email me if you have any questions, and of course first and foremost to contact Dean Brandon or Professor Hill, per the notices below. 

D. Paul Jones & Charlene A. Jones Chair in Law

The University of Alabama School of Law seeks nominations and applications for a University level Chair-holder. The School of Law has achieved a high level of excellence in the quality of its faculty, students, administration, and staff. We seek to build on our standing as one of the leading public law schools in the United States through recruitment of a Chairholder with a national or international reputation for scholarship and teaching of the highest caliber. We welcome nominations and applications in all fields of law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarship related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from and nominations of persons who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. The School of Law will treat all nominations and applications as strictly confidential, subject only to the requirements of state and federal law. Interested candidates should apply online at https://facultyjobs.ua.edu/. Nominations should be e-mailed to Dean Mark E. Brandon at chairsearch@law.ua.edu. The position will remain open until filled. Please refer any questions about the hiring process to Dean Brandon at chairsearch@law.ua.edu.

Assistant Professor / Associate Professor / Professor

The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at facultyjobs.ua.edu. The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: facappts@law.ua.edu).

Posted by Paul Horwitz on July 23, 2015 at 04:58 PM in Paul Horwitz | Permalink | Comments (0)

Clemency Project 2014

Notwithstanding some of Dan Markel's views about clemency in his Against Mercy, I think he'd have been very supportive of this effort from NYU's Rachel Barkow:

President Obama is interested in using his clemency powers to commute the excessive sentences of nonviolent drug offenders, but he can’t do it without your help.  Clemency Project 2014, the organization devoted to helping sort through the more than 30,000 requests for legal assistance with filing clemency petitions, desperately needs more lawyer volunteers.  Volunteers prepare petitions that outline why the individual meets the stated criteria of the Department of Justice. You don't need to have experience in federal criminal law. There's a two-hour training video that gives you all the info you need, not to mention resource counsel to answer any questions that come up. Please consider volunteering for this important pro bono work and encouraging all the lawyers you know to do the same. We all know mass incarceration is a problem, and this is an opportunity to take individual action to do something about it and target some of the most deserving cases for relief.  The link to sign up and volunteer is here.  And more info is here and here.

 

Posted by Ethan Leib on July 23, 2015 at 01:59 PM | Permalink | Comments (0)

God Doesn't Play Dice, Spooky Action at a Distance, If You Have a Hammer, Everything Looks Like a Nail, Ships Passing in the Night, and Other Metaphors For Belief and Debate

Canstockphoto12155245This is a reflection about disciplines and theory, in particular, law and economics.  I preface it by saying that I think economics is a fascinating subject, I took a lot of econ classes in college (mostly macro), and I was an antitrust lawyer for a long time, which meant that I had to have some handle on micro as well.  What provokes this particular reaction is a new piece by Bob Scott (Columbia), a far more distinguished contract theorist than I, on the same subject, contract interpretation, on which I've been writing and blogging this summer.  Bob and I aren't just ships passing in the night. (If we were, he'd be the aircraft carrier in the photo at left.) We are sailing in different oceans. I have been thinking the last few days about why. (I should say that Bob and his frequent co-author, Alan Schwartz, have acknowledged my previous critiques in print. The sailing metaphor is about our concepts, not the fact of the dialogue!)

I'll come back to the specifics later. What I want to consider first is those circumstances in which reasoned discussion is or is not even possible. A couple years back I read a fascinating article by a philosopher named Brian Ribeiro, in which he assessed truly hard cases of conflicting belief, i.e., those instances in which the interlocutors disagree but are not ignorant of critical facts, are sufficiently educated, and are under no cognitive disabilities. A perfectly good example is religious belief. If you are a Mormon or a Catholic, you are going to believe things about which no amount of reasoned argument will change my belief. Rather, a change has to be the result of a conversion.  To quote Ribeiro, "If reconciliation is to occur, then one of us must forsake reason-giving (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute."

It's pretty easy to see that issue in the case of religion, but my contention here is that it happens all the time in academia, i.e., we are ships passing in the night because we begin with an affective set of foundational beliefs upon which we base our sense-making of experience, and the affect is simply not amenable to anything but a conversion experience if there is to be a change.  The first part of the title is a reference to Einstein's famous quip about quantum mechanics, and has to do with something very fundamental about how you believe one event causes another (like particles influencing each other simultaneously at distances greater than light could travel in that instant - the issue of "entanglement" that Einstein called "spooky action at a distance").

I'm not saying that one can't be converted. I suspect there would be some experiment that could have brought Einstein around, just like Arthur Eddington's experiment brought Newtonians around to Einstein's general relativity. The issue arises at a meta level, when you don't believe that there can be evidence that would change your belief. Sorry, but I don't think even my believing Christian friends whose intellects I  respect beyond question are going to get me to believe in the divinity of Jesus Christ.

I'm pretty sure that there's no bright line that cabins off the meta issue of belief solely to matters of religion, however. My friend and next door neighbor, David Haig, is an esteemed evolutionary biologist at Harvard. He and I occasionally partake of a bottle of wine on a Saturday or Sunday afternoon, and come around at some point to the "hard question of consciousness." This is the unresolved scientific and philosophical question of the phenomenon of consciousness. At this point, the debate is not so much about whether there is a reductive explanation, but whether there can ever be one (that's why it's still as much a philosophical as scientific debate). David and I pretty much agree to disagree on this, but my point is that reasoned discussion morphs into belief and conversion at some point.  That is, if presented with a theory of consciousness that comports with the evidence, I'd be pretty stupid not to be converted (just as if Jesus showed up with Elijah at our next Passover Seder and took over reading the Haggadah). But for now, he believes what he believes and I believe what I believe. (There's a philosophical problem of induction buried in there, because usually the basis of the belief that we'll solve the problem is our past experience of solving heretofore unresolvable problems.)

How this ties back to something as mundane as contract law after the break.

Continue reading "God Doesn't Play Dice, Spooky Action at a Distance, If You Have a Hammer, Everything Looks Like a Nail, Ships Passing in the Night, and Other Metaphors For Belief and Debate"

Posted by Jeff Lipshaw on July 23, 2015 at 10:21 AM in Article Spotlight, Legal Theory, Lipshaw | Permalink | Comments (2)