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The Columbia Continuum

Wednesday, 22 March


on mandates, and mandates by the dark goddess of replevin speaks posted

Monday, 06 March


the solution never works if you haven't identified the problem by the dark goddess of replevin speaks posted

Tuesday, 28 February


Complying with Creative Commons license attribution requirements in slides and powerpoint by Blog – Luis Villa: Open Law and Strategy posted

When I was at Mozilla and WMF, I frequently got asked how to give proper credit when using Creative Commons-licensed images in slideshows. I got the question again last week, and am working on slides right now, so here’s a quick guide.

The basics

First, a quick refresher. To comply with Creative Commons (CC) attribution requirements, you need to provide four things in a “reasonable” manner:

  1. the title of the work (if there is one);
  2. the author (might be an internet username);
  3. the source (where you got it); and
  4. the license (including version).

CC helpfully condenses those to “TASL“. An example:

“Larry Lessig giving #ccsummit2011 keynote” by David Kindler is licensed under CC BY 2.0

Creating this information has traditionally been a pain, but this one were generated with one click by the great new “copy credit as text” button in the CC search beta!

Once you’ve created an appropriate credit line, the question, then, is what is a “reasonable” way to put it into a slide deck? There are a few options.

The maximalist option

An obvious option is to put the credit information on every slide, like the lower right hand corner here:

From “‘Program and Engagement Coordination’ – A reflective process management to take movement conferences to the next level“, by Cornelius Kibelka, under CC BY 4.0.

This has some benefits:

  • Clearly complies with the license.
  • Regularly reminds the audience that the images are available and reusable.
  • If you reorganize the slides, the credit stays with the image.

Things that aren’t so great:

  • Distracts from your message.
  • Very difficult to read, so not very useful to the audience, or motivating for the author.

What Lessig does

To keep the focus on his content, Creative Commons founder Lessig puts all his attributions on a single slide at the end of each talk. (This is consistent with his famous “Lessig method” — large, bold images and very few words.) You can see an example just before the end of a talk he gave in 2013. Note that Lessig does not give an oral explanation of what is on the slide, or mention of the license, since they are shown during applause.

My own slides do something similar:

I give more detail by providing links, and note that all images are specifically CC BY-SA 3.0 unless otherwise noted.

So what’s good/bad about this approach? Good:

  • Doesn’t distract from your message as a speaker (which is the reason you’re speaking, after all!)
  • Complies with the license, since it is “reasonable” for the slide medium.


  • Doesn’t give the authors much recognition.
  • Only weakly informs the audience that that the images are available and reusable (since it is at the end and nearly unreadable).
  • If you reorder your slides, or copy and paste into a different deck, you also have to remember to reorder/reuse your attribution slide.

Improving recognition and utility

Given those drawbacks, here are two things you can consider doing to improve on Lessig’s approach.

Fix utility with a clear link to downloadable information

Consider adding a slide at the end, before the full attribution slide, that provides a download link and mentions the license — something like “download slides, and get links and licenses for images, at lu.is/talks“. If you leave that slide up during Q&A, and the URL is short and memorable, the audience can easily find the licensing information later when it is useful to them.

Recognize authors with a thank-you slide

The small type and quick flash of a long attribution slide may be legally compliant, but it does not help give authors the recognition they often want. So consider adding a “thank you” slide with just the names of authors, and a prominent CC logo, without any titles and licensing information. It will make the authors happy, especially if any of them are in the audience!

Monday, 27 February


React’s license: necessary and open? by Blog – Luis Villa: Open Law and Strategy posted

I got multiple emails last week about React’s patent license, and this analysis made the rounds. So a few quick thoughts.

tl;dr: React’s patent license (1) isn’t a bad idea, because the BSD license is not explicit about granting patent rights; and (2) probably meets the requirements of the Open Source Definition.

    <dl id="attachment_3529" class="wp-caption aligncenter" style="max-width:510px">
        <dt><a href="https://www.flickr.com/photos/10295270@N05/5027301512/"><img class="wp-image-3529 size-medium-img" src="http://i2.wp.com/lu.is/blog/wp-content/uploads/2016/10/react.jpg?resize=510%2C232" alt="react" /></a></dt>
        <dd><a href="https://www.flickr.com/photos/10295270@N05/5027301512/">React</a>, by <a href="https://www.flickr.com/photos/10295270@N05/">erokism</a>, used under <a href="https://creativecommons.org/licenses/by/2.0/">CC BY 2.0</a></dd>

Disclaimer: I have in the past counseled Facebook, but I do not currently represent them, and have never advised them on React.

Why are we here?

Big software companies who genuinely want to give away infrastructure code like React generally have three slightly conflicting goals:

  1. be super-permissive (because you want maximum use)
    1. (a) including GPL-compatibility!  (if you take maximum use seriously)
  2. give users confidence that you won’t sue them over patents
  3. (optional) have defensive patent clauses (if you want to discourage your users from suing you over patents)

Here’s the problem: historically, there hasn’t been a license that meets all of those needs. No license gives both #1(a) and #3, because FSF has historically considered patent termination an incompatibility with GPL v2. BSD/MIT does #1, but doesn’t do 3 – and may not give you confidence about patents (#2).

BSD doesn’t give patent confidence?!?

You might be surprised when I say the BSD license may not give users confidence around patents. You’re not alone! El Camino Legal writes:

I’ve never heard any lawyer postulate that [the BSD license] does not grant a license to fully exploit the licensed software under all of the licensor’s intellectual property. … Developers-licensees (or, more to the point, their lawyers) have traditionally been very confident that the BSD License does not leave room for a licensor to successfully sue under patents.

I personally think a court should and probably would read the BSD license in this way. But I — and many other FOSS experts — are not “very” confident about this, especially for clients at high patent risk for some reason.

Why not? In short, the BSD license does not actually say “you have a license to use our patents” — it just says “you can use our software”. Courts should in this case say “of course allowing you to use their software also allows you to use their patents”. (In US patent law, this is called an implied license.) But whether a court will do this varies from country to country, and even court to court. And in an era (hopefully ending soon!) of mass litigation over software patents, some large companies — and individuals — reasonably want more confidence than that.

You don’t have to take my word for it: law firmsscholars, and FSF have written about concerns with implied licenses. Google took the issue seriously enough to write a React-like additional permission for WebM; and Oracle explicitly cited the problem as motivation for writing, and getting OSI approval for, a BSD-style license with explicit patent grant. (HP doesn’t like Oracle’s license, but still agrees that “there may be a need” to address the problem.)

Don’t over-react by deleting all your BSD-license code! BSD’s implied patent license is probably fine, the vast majority of the time. But if you use BSD-licensed code and face increased patent risk (say, you compete with the author, and they have a lot of patents) then it is reasonable to investigate more. And if you publish code under BSD there is no harm, and some potential benefit, in resolving the uncertainty up front with explicit patent language. This is exactly what Facebook seems to have tried here.

Is it well-written?

Since (until recently) there were no standard permissive licenses with an explicit patent license, concerned companies have used custom-drafted licenses. Unfortunately, virtually no one gets new open licenses right on the first try. For example, Google revised their WebM patent language after early feedback from the open license community. And even the most careful open license drafters have a clause they regret. (Ask me over a beer sometime.)

Given that history, it isn’t surprising that this new license is somewhat inelegant. For example, El Camino is correct that the “Necessary Claim” language comes from standards rather than software. (I suspect Facebook got it from either the Apache license and the WebM patent grant.) I’d personally add that “for the avoidance of doubt” is usually not good practice. And I’m curious why they called this an “additional” grant in the title of the document ­— on the one hand, that could be read to acknowledge the implicit grant in the BSD license (great!), but on the other hand it could be read to weaken the value of the termination clause (not so hot). (And of course, Facebook also had some second thoughts, updating the license to allow countersuits – against themselves!)

Is it open?

El Camino’s blog post has gotten attention in large part for claiming that the React license is not open source. Respectfully, I think they’ve gotten this wrong, and I want to correct the record.

Their claim that React is not open source hinges on the definition of a “fee” in section 1 of the Open Source Definition. The Definition says:

The license shall not require a royalty or other fee for such sale.

El Camino argues that the React license clause that requires you not to sue Facebook over patents is a “fee”, since the licensee “pays a price… not… paid with money” to use the software. This interpretation is not unreasonable! Giving up your options is, indeed, a “price” in some sense.

However, the OSI and the broader open source community have always interpreted “fee” to mean monetary payment. This is reflected in the annotated Open Source Definition, which states that this clause “require[s] free redistribution” (emphasis mine) kmqsfkv.

More conclusively, the GPL (indeed, all copyleft licenses) also require you to give up some options — the option to make proprietary derivatives! If “fee” was defined as “giving up options”, then the GPL would never have been treated as an open license. Instead, GPL has always been considered open by the Open Source Initiative — pretty conclusive evidence that “fee” means monetary payment.

And of course, as El Camino noted in an update to their original post, OSI approved similar patent language when they approved MPL 1.1.

I’m not going to firmly claim that the React license is compliant with the Open Source Definition, since it hasn’t gone through a full OSI review. But I think the concern raised by El Camino is based on a (well-intentioned) misunderstanding of the Open Source Definition, and the language would likely pass an OSI review for OSD compliance.

Is it a good idea?

Of course, a license can meet the requirements of the Open Source Definition and still not be a great idea. For example, when drafting MPL 2.0 we realized that narrowing MPL 1.1’s patent termination clause would encourage use in some cases while not hurting Mozilla’s contributors. I suspect that, overall, React’s license would be better if it made the same change. But, again, “you might not want to use it if your company is a frequent patent litigator and/or huge Facebook competitor” is not the same as “not open”.

License protects users, not just Facebook

It is important to note that there are two key ways that this clause protects React’s users, not just Facebook.

First, there is the obvious one: this gives users a very explicit patent license. If Zuckerberg retires tomorrow (or, um, sells their open source components to Oracle) React’s users will still have a very clear license to those patents.

Second, this clause gives Facebook the ability to protect React users who are sued over React-related patents, not just Facebook. Would Facebook actually protect React users that way? No idea! But if I’m a troll and considering suing React users en masse, this language at least gives a reason to pause and think twice. (MPL 2.0’s patent retaliation clause, canceling not just the patent license but also the copyright license, would have even more teeth – something for Facebook to consider if they revise this again :)

Bottom line

Is the React license elegant? No. Should you be worried about using it? Probably not. If anything, Facebook’s attempt to give users an explicit patent license should probably be seen as a good faith gesture that builds some confidence in their ecosystem.

But yeah, don’t use it if your company intends to invest heavily in React and also sue Facebook over unrelated patents. That… would be dumb. :)

Wednesday, 25 January


Copyleft, attribution, and data: other considerations by Blog – Luis Villa: Open Law and Strategy posted

Public licenses for databases don’t work well. Before going into solutions to that problem, though, I wanted to talk briefly about some things that are important to consider when thinking about solutions: real-world examples of the problems; a common, but bad, solution; and a discussion of the motivations behind public licenses.

Bullfrog map unavailable“, by Peter Desmets, under CC BY 3.0 unported

Real-world concerns, not just theoretical

When looking at solutions, it is important to understand that the practical concerns I blogged about aren’t just theoretical — they matter in practice too. For example, Peter Desmet has done a great job showing how overreaching licenses make bullfrog maps (and other data combinations) illegal. Alex Barth of OpenStreetMap has also discussed how ODbL creates problems for OSM users (though he got some Wikipedia-related facts wrong). And I’ve spoken to very well-intentioned organizations (including thoughtful, impactful non-profits) scared off from OSM for similar reasons.

On the flip side, because these rules are based on such flimsy legal grounds, sophisticated corporate legal departments often feel comfortable circumventing
the requirements by exploiting loopholes. (Needless to say, they don’t blog about the problems with the licenses – they just go ahead and use the loopholes.) So overreaching attempts to create new rights are, in many ways, the worst of both worlds: they hurt well-intentioned cooperation, and don’t dissuade parties with a significant interest in exploiting the commons.

What not to do: create new “rights”

When thinking about solutions, it is unfortunately also important to say what isn’t a good idea: create new rights, or override limitations on old ones. The Free Software Foundation, to their great credit, has always consistently said that if weakening copyright also weakens the GPL, they’ll take that tradeoff; and that vice-versa, the GPL should not ask for rights that go beyond copyright law. The most recent copyleft licenses from Creative Commons, Mozilla, and the FSF all make this explicit: limitations on copyright, like fair use, are not trumped by our licenses.

Unfortunately, many people have a good-faith desire to see copyleft-like results in other domains. As a result, they’ve gone the wrong way on this point. ODbL is probably the most blatant example of this: even at the time, Science Commons correctly pointed out that ODbL’s attempt to create database rights by contract outside of the EU was a bad idea. Unfortunately, well-intentioned people (including me!) pushed it through anyway. Similarly, open hardware proponents have tried to stretch copyright to cover functional works, with predictably messy results.

This is not just practically wrong, for the reasons I’ve explained in earlier posts. It is also ethically wrong for those of us who want to see more data sharing, because any “rights” we create by fiat are going to end up being used primarily to stop sharing, not encourage it.

Remembering why we do share-alike and attribution

Consider this section a brief sketch for a future post – if I forgot something
big, please let me know, but please don’t roast me in comments for being brief
or reductive about your favorite motivation.

It is important when writing about public licenses to remember why the idea of
placing restrictions on re-use is so intuitively appealing outside of software.
If we don’t understand why people want to do less-than-public domain, it’s hard
to come up with solutions that actually work. Motivations tend to be some
combination (varying from person to person and community to community) of:

  • Recognition: Many people want to at least be recognized for their work, even when they ask for nothing else. (When Creative Commons assessed usage after their 1.0 licenses, 97-98% of people chose attribution.) This sentiment underlies many otherwise “permissive” licenses, as well as academic norms around plagiarism and attribution.
  • Reducing free riding: Lots of people are afraid that commons can be destroyed by people who use the resource without giving back. Historically, this “tragedy of the commons” was about rivalrous goods (like fisheries), but the same concern is often raised in the context of collaborative communities, whose labor can be rivalrous even when their goods are non-rivalrous. Some people like share-alike requirements because, pragmatically, they feel such requirements are one way to prevent (or at least reduce) this risk by encouraging people to either participate fully or not participate at all. (If you’re interested in this point, I’ve written about it before.)
  • “Fairness”: Many people like share-alike out of a deep moral sense that if you take, you should also give back. This often looks the same as the previous point, but with the key distinction that at least some people focused on fairness care more about process and less about outcomes: a smaller, less productive community with more sharing may, for them, be better than a larger, more productive community where not everyone shares perfectly.
  • Access to allow self-help: Another variation on the previous two points is a use of copyleft that focuses less on “is the author helping me by cooperating” and more on “did the author give me materials I can then use to help myself”. In this view, increased access to raw material (like source code, or data) can be good even the authors are non-cooperative. (To those familiar with the Linux kernel discussions, this is essentially “I got a lousy driver, and the authors hate me, but at least I got *a* driver”.)
  • Ethical: Many people simply think data/source should never be proprietary, and so will use any means possible, like copyleft, to increase the amount of non-proprietary code in the world.

All of these motivations can be more or less valid at different points in time, in ways that (again) deserve a different post. (For example, automatic attribution may not have the same impact as “human” attribution, which may not be a surprise given the evidence on crowding out of intrinsic motivations.)

Finally, next (and final?) post: what solutions we’ve got.

Wednesday, 18 January


when a provider gets it right by the dark goddess of replevin speaks posted

Tuesday, 13 December


more fun with PBM appeals by the dark goddess of replevin speaks posted

Thursday, 01 December


Public licenses and data: So what to do instead? by Blog – Luis Villa: Open Law and Strategy posted

I just explained why open and copyleft licensing, which work fairly well in the software context, might not be legally workable, or practically a good idea, around data. So what to do instead? tl;dr: say no to licenses, say yes to norms.

"Day 43-Sharing" by A. David Holloway, under CC BY 2.0.
Day 43-Sharing” by A. David Holloway, under CC BY 2.0.

Partial solutions

In this complex landscape, it should be no surprise that there are no perfect solutions. I’ll start with two behaviors that can help.

Education and lawyering: just say no

If you’re reading this post, odds are that, within your organization or community, you’re known as a data geek and might get pulled in when someone asks for a new data (or hardware, or culture) license. The best thing you can do is help explain why restrictive “public” licensing for data is a bad idea. To the extent there is a community of lawyers around open licensing, we also need to be comfortable saying “this is a bad idea”.

These blog posts, to some extent, are my mea culpa for not saying “no” during the drafting of ODbL. At that time, I thought that if only we worked hard enough, and were creative enough, we could make a data license that avoided the pitfalls others had identified. It was only years later that I finally realized there were systemic reasons why we were doomed, despite lots of hard work and thoughtful lawyering. These posts lay out why, so that in the future I can say no more efficiently. Feel free to borrow them when you also need to say no :)

Project structure: collaboration builds on itself

When thinking about what people actually want from open licenses, it is important to remember that how people collaborate is deeply impacted by factors of how your project is structured. (To put it another way, architecture is also law.) For example, many kernel contributors feel that the best reason to contribute your code to the Linux kernel is not because of the license, but because the high velocity of development means that your costs are much lower if you get your features upstream quickly. Similarly, if you can build a big community like Wikimedia’s around your data, the velocity of improvements is likely to reduce the desire to fork. Where possible, consider also offering services and collaboration spaces that encourage people to work in public, rather than providing the bare minimum necessary for your own use. Or more simply, spend money on community people, rather than lawyers! These kinds of tweaks can often have much more of an impact on free-riding and contribution than any license choice. Unfortunately, the details are often project specific – which makes it hard to talk about in a blog post! Especially one that is already too long.

Solving with norms

So if lawyers should advise against the use of data law, and structuring your project for collaboration might not apply to you, what then? Following Peter Desmet, Science Commons, and others, I think the right tool for building resilient, global communities of sharing (in data and elsewhere) is written norms, combined with a formal release of rights.

Norms are essentially optimistic statements of what should be done, rather than formal requirements of what must be done (with the enforcement power of the state behind them). There is an extensive literature, pioneered by Nobelist Elinor Ostrom, on how they are actually how a huge amount of humankind’s work gets done – despite the skepticism of economists and lawyers. Critically, they often work even without the enforcement power of the legal system. For example, academia’s anti-plagiarism norms (when buttressed by appropriate non-legal institutional supports) are fairly successful. While there are still plagiarism problems, they’re fairly comparable to the Linux kernel’s GPL-violation problems – even though, unlike GPL, there is no legal enforcement mechanisms!

Norms and licenses have similar benefits

In many key ways, norms are not actually significantly different than licenses. Norms and licenses both can help (or hurt) a community reach their goals by:

  • Educating newcomers about community expectations: Collaboration requires shared understanding of the behavior that will guide that collaboration. Written norms can create that shared expectation just as well as licenses, and often better, since they can be flexible and human-readable in ways legally-binding international documents can’t.
  • Serving as the basis for social pressure: For the vast majority of collaborative projects, praise, shame, and other social nudges, not legal threats, are the actual basis for collaboration. (If you need proof of this, consider the decades-long success of open source before any legal enforcement was attempted.) Again, norms can serve this role just as well or not better, since it is often desire to cooperate and a fear of shaming that are what actually drive collaboration.
  • Similar levels of enforcement: While you can’t use the legal system to enforce a norm, most people and organizations also don’t have the option to use the legal system to enforce licenses – it is too expensive, or too time consuming, or the violator is in another country, or one of many other reasons why the legal system might not be an option (especially in data!) So instead most projects result to tools like personal appeals or threats of publicity – tools that are still available with norms.
  • Working in practice (usually): As I mentioned above, basing collaboration on social norms, rather than legal tools, work all the time in real life. The idea that collaboration can’t occur without the threat of legal sanction is really a somewhat recent invention. (I could actually have listed this under differences – since, as Ostrom teaches us, legal mechanisms often fail where norms succeed, and I think that is the case in data too.)

Why are norms better?

Of course, if norms were merely “as good as” licenses in the ways I just listed, I probably wouldn’t recommend them. Here are some ways that they can be better, in ways that address some of the concerns I raised in my earlier posts in this series:

  • Global: While building global norms is not easy, social norms based on appeals to the very human desires for collaboration and partnership can be a lot more global than the current schemes for protecting database or hardware rights, which aren’t international. (You can try to fake internationalization through a license, but as I pointed out in earlier posts, that is likely to fail legally, and be ignored by exactly the largest partners who you most want to get on board.)
  • Flexible: Many of the practical problems with licenses in data space boil down to their inflexibility: if a license presumes something to be true, and it isn’t, you might not be able to do anything about it. Norms can be much more generous – well-intentioned re-users can creatively reinterpret the rules as necessary to get to a good outcome, without having to ask every contributor to change the license. (Copyright law in the US provides some flexibility through fair use, which has been critical in the development of the internet. The EU does not extend such flexibility to data, though member states can add some fair dealing provisions if they choose. In neither case are those exceptions global, so they can’t be relied on by collaborative projects that aim to be global in scope.)
  • Work against, not with, the permission culture: Lessig warned us early on about “permission culture” – the notion that we would always need to ask permission to do anything. Creative Commons was an attempt to fight it, but by being a legal obligation, rather than a normative statement, it made a key concession to the permission culture – that the legal system was the right terrain to have discussions about sharing. The digital world has pretty whole-heartedly rejected this conclusion, sharing freely and constantly. As a result, I suspect a system that appeals to ethical systems has a better chance of long-term sustainability, because it works with the “new” default behavior online rather than bringing in the heavy, and inflexible, hand of the law.

Why you still need a (permissive) license

Norms aren’t enough if the underlying legal system might allow an early contributor to later wield the law as a threat. That’s why the best practice in the data space is to use something like the Creative Commons public domain grant (CC-Zero) to set a clear, reliable, permissive baseline, and then use norms to add flexible requirements on top of that. This uses law to provide reliability and predictability, and then uses norms to address concerns about fairness, free-riding, and effectiveness. CC-Zero still isn’t perfect; most notably it has to try to be both a grant and a license to deal with different international rules around grants.

What next?

In this context, when I say “norms”, I mean not just the general term, but specifically written norms that can act as a reference point for community members. In the data space, some good examples are DPLA’s “CCO-BY” and the Canadensys biodiversity initiative. A more subtle form can be found buried in the terms for NIH’s Clinical Trials database. So, some potential next steps, depending on where your collaborative project is:

  • If your community has informal norms (“attribution good! sharing good!”) consider writing them down like the examples above. If you’re being pressed to adopt a license (hi, Wikidata!), consider writing down norms instead, and thinking creatively about how to name and shame those who violate those norms.
  • If you’re an organization that publishes licenses, consider using your drafting prowess to write some standard norms that encapsulate the same behaviors without the clunkiness of database (or hardware) law. (Open Data Commons made some moves in this direction circa 2010, and other groups could consider doing the same.)
  • If you’re an organization that keeps getting told that people won’t participate in your project because of your license, consider moving towards a more permissive license + a norm, or interpreting your license permissively and reinforcing it with norms.

Good luck! May your data be widely re-used and contributors be excited to join your project.

Tuesday, 22 November


i don't know how other people do this by the dark goddess of replevin speaks posted

Friday, 11 November


the further adventures of radiology department a by the dark goddess of replevin speaks posted

Wednesday, 09 November


possibly the most boring post i will ever write by the dark goddess of replevin speaks posted


i made a difference today by the dark goddess of replevin speaks posted

Saturday, 05 November


hello, my name is... by the dark goddess of replevin speaks posted

Wednesday, 02 November


the other side of defensive medicine by the dark goddess of replevin speaks posted

Thursday, 20 October


dear sergeant by the dark goddess of replevin speaks posted

Wednesday, 19 October


every cane is a "stick" by the dark goddess of replevin speaks posted

Monday, 17 October


dear director of patient relations by the dark goddess of replevin speaks posted

Tuesday, 11 October


don't judge a post by its title by the dark goddess of replevin speaks posted

Thursday, 15 September


Copyleft and data: databases as poor subject by Blog – Luis Villa: Open Law and Strategy posted

tl;dr: Open licensing works when you strike a healthy balance between obligations and reuse. Data, and how it is used, is different from software in ways that change that balance, making reasonable compromises in software (like attribution) suddenly become insanely difficult barriers.

In my last post, I wrote about how database law is a poor platform to build a global public copyleft license on top of. Of course, whether you can have copyleft in data only matters if copyleft in data is a good idea. When we compare software (where copyleft has worked reasonably well) to databases, we’ll see that databases are different in ways that make even “minor” obligations like attribution much more onerous.

Card Puncher from the 1920 US Census.
Card Puncher from the 1920 US Census.

How works are combined

In software copyleft, the most common scenarios to evaluate are merging two large programs, or copying one small file into a much larger program. In this scenario, understanding how licenses work together is fairly straightforward: you have two licenses. If they can work together, great; if they can’t, then you don’t go forward, or, if it matters enough, you change the license on your own work to make it work.

In contrast, data is often combined in three ways that are significantly different than software:

  • Scale: Instead of a handful of projects, data is often combined from hundreds of sources, so doing a license conflicts analysis if any of those sources have conflicting obligations (like copyleft) is impractical. Peter Desmet did a great job of analyzing this in the context of an international bio-science dataset, which has 11,000+ data sources.
  • Boundaries: There are some cases where hundreds of pieces of software are combined (like operating systems and modern web services) but they have “natural” places to draw a boundary around the scope of the copyleft. Examples of this include the kernel-userspace boundary (useful when dealing with the GPL and Linux kernel), APIs (useful when dealing with the LGPL), or software-as-a-service (where no software is “distributed” in the classic sense at all). As a result, no one has to do much analysis of how those pieces fit together. In contrast, no natural “lines” have emerged around databases, so either you have copyleft that eats the entire combined dataset, or you have no copyleft. ODbL attempts to manage this with the concept of “independent” databases and produced works, but after this recent case I’m not sure even those tenuous attempts hold as a legal matter anymore.
  • Authorship: When you combine a handful of pieces of software, most of the time you also control the licensing of at least one of those pieces of software, and you can adjust the licensing of that piece as needed. (Widely-used exceptions to this rule, like OpenSSL, tend to be rare.) In other words, if you’re writing a Linux kernel driver, or a WordPress theme, you can choose the license to make sure it complies. Not necessarily the case in data combinations: if you’re making use of large public data sets, you’re often combining many other data sources where you aren’t the author. So if some of them have conflicting license obligations, you’re stuck.

How attribution is managed

Attribution in large software projects is painful enough that lawyers have written a lot on it, and open-source operating systems vendors have built somewhat elaborate systems to manage it. This isn’t just a problem for copyleft: it is also a problem for the supposedly easy case of attribution-only licenses.

Now, again, instead of dozens of authors, often employed by the same copyright-owner, imagine hundreds or thousands. And imagine that instead of combining these pieces in basically the same way each time you build the software, imagine that every time you have a different query, you have to provide different attribution data (because the relevant slices of data may have different sources or authors). That’s data!

The least-bad “solution” here is to (1) tag every field (not just data source) with licensing information, and (2) have data-reading software create new, accurate attribution information every time a new view into the data is created. (I actually know of at least one company that does this internally!) This is not impossible, but it is a big burden on data software developers, who must now include a lawyer in their product design team. Most of them will just go ahead and violate the licenses instead, pass the burden on to their users to figure out what the heck is going on, or both.

Who creates data

Most software is either under a very standard and well-understood open source license, or is produced by a single entity (or often even a single person!) that retains copyright and can adjust that license based on their needs. So if you find a piece of software that you’d like to use, you can either (1) just read their standard FOSS license, or (2) call them up and ask them to change it. (They might not change it, but at least they can if they want to.) This helps make copyleft problems manageable: if you find a true incompatibility, you can often ask the source of the problem to fix it, or fix it yourself (by changing the license on your software).

Data sources typically can’t solve problems by relicensing, because many of the most important data sources are not authored by a single company or single author. In particular:

  • Governments: Lots of data is produced by governments, where licensing changes can literally require an act of the legislature. So if you do anything that goes against their license, or two different governments release data under conflicting licenses, you can’t just call up their lawyers and ask for a change.
  • Community collaborations: The biggest open software relicensing that’s ever been done (Mozilla) required getting permission from a few thousand people. Successful online collaboration projects can have 1-2 orders of magnitude more contributors than that, making relicensing is hard. Wikidata solved this the right way: by going with CC0.

What is the bottom line?

Copyleft (and, to a lesser extent, attribution licenses) works when the obligations placed on a user are in balance with the benefits those users receive. If they aren’t in balance, the materials don’t get used. Ultimately, if the data does not get used, our egos feel good (we released this!) but no one benefits, and regardless of the license, no one gets attributed and no new material is released. Unfortunately, even minor requirements like attribution can throw the balance out of whack. So if we genuinely want to benefit the world with our data, we probably need to let it go.

So what to do?

So if data is legally hard to build a license for, and the nature of data makes copyleft (or even attribution!) hard, what to do? I’ll go into that in my next post.

Copyleft and data: database law as (poor) platform by Blog – Luis Villa: Open Law and Strategy posted

tl;dr: Databases are a very poor fit for any licensing scheme, like copyleft, that (1) is intended to encourage use by the entire world but also (2) wants to place requirements on that use. This is because of broken legal systems and the way data is used. Projects considering copyleft, or even mere attribution, for data, should consider other approaches instead.

Hollerith Census Machine Dials, by Marcin Wichary, under CC BY 2.0
The original database: Hollerith Census Machine Dials, by Marcin Wichary, under CC BY 2.0.

I’ve been a user of copyleft/share-alike licenses for a long time, and even helped draft several of them, but I’ve come around to the point of view that copyleft is a poor fit for data. Unfortunately, I’ve been explaining this a lot lately, so I want to explain why in writing. This first post will focus on how the legal system around databases is broken. Later posts will focus on how databases are hard to license, and what we might do about it.

FOSS licensing, and particularly copyleft, relies on legal features database rights lack

Defenders of copyleft often have to point out that copyleft isn’t necessarily anti-copyright, because copyleft depends on copyright. This is true, of course, but the more I think about databases and open licensing, the more I think “copyleft depends on copyright” almost understates the case – global copyleft depends not just on “copyright”, but on very specific features of the international copyright system which database law lacks.

To put it in software terms, the underlying legal platform lacks the features necessary to reliably implement copyleft.

Consider some differences between the copyright system and database law:

  • Maturity: Copyright has had 100 or so years as an international system to work out kinks like “what is a work” or “how do joint authors share rights?” Even software copyright law has existed for about 40 years. In contrast, database law in practice has existed for less  than 20 years, pretty much all of that in Europe, and I can count all the high court rulings on it on my fingers and toes. So key terms, like “substantial”, are pretty hard to define-courts and legislatures simply haven’t defined, or refined, the key concepts. This makes it very hard to write a general-purpose public license whose outcomes are predictable.

  • Stability: Related to the previous point, copyright tends to change incrementally, as long-standing concepts are slowly adapted to new circumstances. (The gradual broadening of fair use in the Google era is a good example of this.) In contrast, since there are so few decisions, basically every decision about database law leads to upheaval. Open Source licenses tend to have a shelf-life of about ten years; good luck writing a database license that means the same thing in ten years as it does today!

  • Global nature: Want to share copyrighted works with the entire world? Copyright (through the Berne Convention) has you covered. Want to share a database? Well, you can easily give it away to the whole world (probably!), but want to reliably put any conditions on that sharing? Good luck! You’ve now got to write a single contract that is enforceable in every jurisdiction, plus a license that works in the EU, Japan, South Korea, and Mexico. As an example again, “substantial” – used in both ODbL and CC 4.0 – is a term from the EU’s Database Directive, so good luck figuring out what it means in a contract in the US or within the context of Japan’s database law.

  • Default rights: Eben Moglen has often pointed out that anyone who attacks the GPL is at a disadvantage, because if they somehow show that the license is legally invalid, then they get copyright’s “default”: which is to say, they don’t get anything. So they are forced to fight about the specific terms, rather than the validity of the license as a whole. In contrast, in much of the world (and certainly in the US), if you show that a database license is legally invalid, then you get database’s default: which is to say, you get everything. So someone who doesn’t want to follow the copyleft has very, very strong incentives to demolish your license altogether. (Unless, of course, the entire system shifts from underneath you to create a stronger default – like it may have in the EU with the Ryanair case.)

With all these differences, what starts off as hard (“write a general-purpose, public-facing license that requires sharing”) becomes insanely difficult in the database context. Key goals of a general-purpose, public license – global, predictable, reliable – are very hard to do.

In  upcoming posts, I’ll try to explain why, even if it were possible to write such a license from a legal perspective, it might not be a good idea because of how databases are used.

Wednesday, 03 August


when someone tells you who he is, believe him by the dark goddess of replevin speaks posted

Monday, 27 June


Here Comes the Fat Lady by Blakely Blog posted

After giving it some thought, I’ve decided to put the Blakely Blog to bed for good. I feel that other blogs and similar resources on the internet are doing an excellent job of keeping up with all of news and developments in this area of law and my efforts are largely duplicative. Furthermore, my schedule (which includes assisting in a soon to commence criminal trial in the SDNY) has not permitted me to spend much time working on the blog since the Booker decision.

It’s been fun, though. When I started this little endeavor I never imagined that this blog would get the attention it received. I know that the Blakely Blog was a productive endeavor from the scores of emails I received from people whose friends and family members relied on this blog, as well as others, to help sort out a complicated issue that affected them very personally.

I’d like to thank all of the people that took the time to write to me and send me opinions and news from around the country. I’d also like to thank Laurie Cohen from the Wall Street Journal who interviewed me about the Blakely Blog this summer and even mentioned me by name in the Journal.

Although I won’t be blogging any longer, I plan on submitting at least one piece of writing on the Booker case sometime this year to a legal journal. You can keep an eye out for that in the near future.

Again, thanks for reading and I wish you all the best.


Jason Hernandez

CLS Sentencing Symposium - Considerations at Sentencing – What Factors are Relevant and Who Should Decide? by Blakely Blog posted

The second panel’s topic was: Considerations at Sentencing – What Factors are Relevant and Who Should Decide?

The moderator was Judge John Martin, Debevoise & Plimpton.

The panelists were:

Kyron Huigens, Professor, Benjamin N. Cardozo School of Law
Kevin R. Reitz, Professor, University of Colorado School of Law
Paul H. Robinson, Professor, University of Pennsylvania Law School
Barbara Tombs, Executive Director, Minnesota Sentencing Guidelines Commission

This is by no means a complete or official report on the symposium; the Columbia Law Review will have an official report soon. All errors are my own.

Paul Robinson

Prof. Robinson began his presentation by suggesting that the question posed to the panel is misleading because it makes the assumption that there is one decision maker. In fact, there are several and they make a number of decision on several topics, such as:

Policymaking – setting goals, purposes
Rule articulation – turning general policy into articulable rules
Fact finding
Judgment making – expressing normative judgments
Determining punishment amount
Determining punishment method

Prof. Robinson used a chart (which I will post here when I get my hand on it tomorrow) that illustrates the kinds of decisions made by different decision makers (legislatures, judges, sentencing commissions, parole boards, juries, etc.)

In his opinion, the SRA got it right, but the Commission got it wrong.

Kyron Huigens

Prof. Huigens began by professing a preference for discretionary sentencing. He spent a great deal of time exploring the tension between Williams v. NY and the Court’s most recent 6th Amendment jurisprudence. That tension – known as the Blakely paradox to some (or possibly just me) – is that a judges can do what Blakely proscribes only as long as the legislature has refrained from establishing a statutory structure to guide sentencing. It seems inconsistent that judicial fact-finding is acceptable in indeterminate systems where defendant’s have little to no recourse to appeal a sentence, but impermissible when the legislature creates guidelines. He promised to explore this topic in an article he is working on.

Kevin R. Reitz

Prof. Reitz said that the states that have done the best job are the ones that have put in presumptive guidelines. That list includes Minnesota, Washington, Oregon, Kansas, North Carolina and Ohio. (There may have been others that I missed.) The best ones, he said, remove the prison release discretion from parole boards.

The states that have indeterminate systems are driving the prison population explosion.

Prof. Reitz discussed some of the problems he has with Booker and Blakely. The effect of Booker when lined up in the context of other Supreme Court decisions that have created loopholes to the Sixth Amendment is what he called “Constitutional Swiss cheese.” And there may be more holes than cheese.

The holes are all of the exceptions to the Booker rule, which are:

Williams; Booker II
Harris; McMillan

He summarized the lay of the land as follows. The following systems have no Blakley problems: voluntary guidelines, indeterminate sentencing, mandatory minimum guidelines and mandatory minimum statutes. The following systems have Blakely problems: presumptive guidelines, presumptive statutes, mandatory guidelines.

The jurisdictions with Blakely problems have two options – Blakelyization or avoidance (change the system entirely).

Barabara Tombs

Barabara Tombs began by explaining that Minnesota’s guidelines are driven by retribution as a penal philosophy. “That’s why we put people in prison.” (Or something close to that). She said that the Commission’s work is guided by their chosen penal philosophy. It helps the Commission to focus on what our guidelines can and cannot do.

She felt that Blakely and Booker will hurt the younger sentencing commissions more than the older ones.

She discussed some statistics from Minnesota which were of interest. In Minnesota they have a 2% upward departure rate for sex offenses and murder. There are a lot of downward departures in drug cases (60% in some cases). Curiously, Minnesota has mandatory minimum drug sentences but judges can depart downward from the mandatory minimum. (I’m not sure how that works).

Finally, she (sensibly, in my view) observed that Blakely was all about jury sentencing and after the first few pages of Booker, it seems to have disappeared. Where did it go?

Judge Martin

In wrapping up the panel, Judge Martin said that he was disturbed by how much deference is being paid to reducing sentencing disparities. He feels like we have elevated that goal to too high a position.

He said that he likes the new system over the old, because it leaves guidelines and appellate review. Hopefully Congress won’t jump in too quickly, he added.

CLS Sentencing Panel – Prosecutorial Discretion and Its Challenges by Blakely Blog posted

The first panel addressed the topic of prosecutorial discretion and its changes. The moderator was CLS Professor Paul Shechtman.

The panelists were:

Martha Coakley, District Attorney, Middlesex County, MA
Michele Hirshman, First Deputy A.G., New York State
Nancy King, Professor, Vanderbilt University School of Law
Ronald F. Wright, Professor, Wake Forest University School of Law

What follows are some highlights from the panel discussion. This is by no means a complete or official report on the symposium; the Columbia Law Review will have an official report soon. All errors are my own.

This panel will explore whether prosecutorial discretion holds the keys to state sentencing, as many say does in the federal system.

Ron Wright

Prof. Wright began his comments by discussing the regulatory imbalance in sentencing. Analogizing the imbalance to other more traditional areas of regulation, he suggests that we can learn from the regulatory imbalances in sentencing.

On the topic of prosecutorial guidelines, Prof. Wright noted that some states like Kansas (and Minnesota) considered establishing prosecutorial guidelines, but in the end abandoned the effort. At least one state – Washington – has experimented with the idea of prosecutorial guidelines. These are internal guidelines, however.

Prof. Wright spent a fair amount of time talking about New Jersey, a state he described as not the hot bed of sentencing reform.

Nancy King

Whereas Prof. Wright’s focus was on macro-sentencing issues, Prof. King focused on the micro picture.

She noted that a great deal of the sentencing disparity debate has focused on racial disparities and disparity among sentencing judges. Missing from the analysis is a study of the mode of conviction. For example, sentences will vary depending on whether the defendant chose a bench trial instead of a jury trial, or went to trial at all. This is what some have called the guideline’s dirty little secret.

Prof. King is in the midst of studying data from 5 states (Pennsylvania, Maryland, Minnesota, Kansas and Washington) to study the disparities that arise based on different modes of conviction. This is a work in progress but she shared some of her preliminary results.

In Maryland and Pennsylvania she found that when the defendant chooses a jury trial, they are much more likely to be incarcerated.

(Except for cocaine offenses in Pennsylvania where bench trials are more likely to result in incarceration, but incarceration rates are lower in bench trials for simple possession).

In Washington, whether the defendant pled guilty, chose a bench trial or a jury trial, the rate of incarceration did not vary in a statistically significant manner.

In Minnesota she examined 3 offenses and found that in 5th degree drug cases, a bench trial meant the defendant was less likely to go to jail.

Prof. King also observed that in mandatory guideline states the bargain is over the charge, not the sentence, because there is no room to bargain about the sentence. Some have suggested that there needs to be a year between the top and bottom of the guideline for there to be meaningful sentence bargaining.

Michele Hirshman

Michele Hirshman has been working for the NY Attorney General’s office for the last 6 years. She immediately observed that it is important to get prosecutors to see themselves as seeking justice, not convictions.

In NY, the discretion of prosecutors is very limited. Grand jury proceeding place major restrictions on what a prosecutor can do, making it difficult to build a case. The prosecutor has to present a very big part of their case to the grand jury. Elaborate evidentiary rules that constrain how they can prove a case.

She discussed the significance of electing judges and prosecutors, arguing that this democratic check is the best way to constrain prosecutors.

Martha Coakley

Martha Coakley began her presentation by asking whether we were asking the right questions? First, we thought the problem was sentencing. We addressed that. Then we thought the problem was prosecutors. But what about the role of the defense counsel?

She suggested that better funding and treating defense work as a highly respected profession is an important way to check prosecutors.

She observed that in Massachusetts they have Rule 25(b)(2) which allows judges to reduce a charge if it’s unfair. Judges have more discretion than prosecutors. This is an important check on the prosecutor.

Finally, she argued that all crimes are not created equal. In child abuse cases the ability to intervene early is of utmost importance. Someone who abuses kids needs a different sentence and rehabilitative program than a bank robber.

We spend too much money on putting people in jail and focusing on sentencing guidelines.

CLS Sentencing Symposium - Judge Lynch's Opening Remarks by Blakely Blog posted

This post is coming to you live from Columbia Law School’s state sentencing symposium. The symposium was kicked off with some opening remarks by Judge and CLS Professor Gerard Lynch. What follows are some highlights of his opening remarks.

Judge Lynch began his comments by noting the impeccable timing of the symposium. The timing, however, was fortuitous – the symposium was not planned as a response to Blakely or Booker. The original purpose of this symposium was to steer the sentencing conversation away from Congress and the Sentencing Commission, and towards the courts.

Sentencing is still a topic that is not given a lot of attention in criminal courses. Legal and academic writing tends to focus of Congress, although federal sentencing only composes 7% of the incarcerated public. This is especially significant given that the focus of federal law (white collar crime, immigration and drug crimes) is distinct from the traditional street crimes that most people are concerned about.

Although there is no clear pattern or trajectory in sentencing law, the states have been the true innovators in sentencing.

State Sentencing Symposium at Columbia Law School by Blakely Blog posted

The symposium starts tomorrow at 1:30pm with Judge Lynch's opening remarks. The event is open to the public and free of charge.

For more details go here.

I'll be in attendance and blogging from the symposium.

Tuesday Morning News by Blakely Blog posted

Law.com has an interesting backstory to Justice Breyer's ethical quandary regarding the Booker case. Can one of the guidelines' architects decide their fate? Apparently, it not only matters what you ask, but who you ask. As you may recall, the bloggers spotted this issue well before the press. In this post from August, I discussed Justice Breyer's possible recusal, with a little help from the blogging community.

The Monitor has a good article discussing Booker's impact on different types of crimes. The article argues that Booker will affect white collar crime and drug crimes more than any other class of crimes, whereas more "serious" crimes will not be disturbed.

Tulsa World has an interesting article that is a few days old entitled, "Judge sticking with sentencing guidelines." Unfortunately, you have to be a subscriber to access the article. But, I did manage to find this little blurb:

U.S. Chief District Judge Sven Erik Holmes is a believer in guideline sentencing, and he intends to keep using the existing federal guidelines even though the U.S. Supreme Court said Wednesday that they are no longer mandatory.

Chief Judge Holmes issued a Blakely Blockbuster opinion in August in US v. O'Daniel. In that decision, he laid out a 4 point plan for bringing the guidelines into compliance with Blakely.

Interesting, It's-A-Small-World News: Alexandra Shapiro, the primary author of the New York Council of Defense Lawyers amicus brief, and a partner at Latham & Watkins NY, is co-teaching a Seminar in Federal Criminal Practice at Columbia Law School this semester. The course, which I am enrolled in, is also taught by Jonathan Bach, a partner at Kronish Lieb Weiner & Hellman LLP.

Sentencing is, of course, a big part of the seminar due to Blakely and Booker.

Morning News Stories by Blakely Blog posted

Findlaw.com columnist Mark Allenbaugh writes, "The Supreme Court's New Blockbuster U.S. Sentencing Guidelines Decision: A Clear Sixth Amendment Ruling, with an Invitation to Congress to Create a Better Remedy."

Salon.com cleverly pokes, "Supreme Court to Congress: Here's what you really meant." Salon asked the current chair of the American Bar Association's committee on sentencing, Jim Felman, a practicing defense attorney in Tampa, Fla., to shed some light on the surprising Supreme Court news.

The Washington Post editorializes, "The Court on Sentencing."

Oregonians will find the following article interesting, "A better way to set prison time - Hit to federal sentencing laws is a reminder to Oregon that the state also must update its court practices."

More News Stories by Blakely Blog posted

I have some coherent commentary planned for tomorrow. Until then, here are a few more news stories of note.

Supreme Court generates more sentencing turmoil,” from The Columbian:

Stephen Kanter, a professor at Lewis & Clark's Northwestern School of Law, said many sentences may be reconfirmed, with judges saying they would have given the same sentence even if they hadn't been bound by guidelines.

U.S. Sentencing Guidelines Made Advisory by Court,” from Bloomberg:

``It probably will create additional leverage for defense counsel in negotiating agreements,'' said B. Todd Jones, a former U.S. attorney in Minnesota. ``They know they have two bites at the apple now'' -- with prosecutors and judges.

Lots and Lots of News Stories by Blakely Blog posted

Here is a collection of recent news stories on yesterday's opinions by the Court. Where relevant, I've excerpted interesting parts from the stories.

"High court loosens criminal sentencing guidelines," from the Seattle Times:

Gregory Poe, a Washington, D.C., attorney and former federal defender, said, "Congress is likely to make changes. And there is great concern that Congress may have an appetite to create a system applying strict penalties regardless of the merits in individual cases."


Frank Bowman, a professor at the Indiana University School of Law and a leading expert on the guidelines, said, "There is one thing that appears to be clear: The court has, by either judicial fiat or an act of statutory interpretation, created a system of advisory guidelines which, I think you can at least argue, give federal trial judges the greatest sentencing power they've ever had."

Assistant Attorney General Christopher Wray said the Justice Department was "disappointed" that the court had made the guidelines advisory in nature, but emphasized that the opinion makes clear that trial judges still are required to consult the guidelines in making sentencing decisions.

"Area well poised in wake of Supreme Court sentencing decision," from the Waco Tribune:

Federal inmates at the McLennan County Detention Center in downtown Waco raised the roof for joy Wednesday morning after learning on television news that the U.S. Supreme Court had upended federal sentencing guidelines.

Most inmates there have yet to be sentenced and are waiting to go to court, said Thomas Medart, chief of security at the privately run facility.

"They're happy," he said. "It's postponed some of the sentencing that would have happened, but it's not creating any problems for us."


U.S. District Judge Walter S. Smith Jr., who presides over Waco's federal court and is chief judge for the Western District of Texas, said he wasn't surprised by the ruling. After all, Smith issued a ruling of his own in July saying the sentencing guidelines were not constitutional and violated defendants' Sixth Amendment right to a jury trial.

Smith said he was pleased with the decision because it will give federal judges more discretion in sentencing. He said


Whatever the fallout, Smith said he doesn't believe Wednesday's ruling will be the last word on the subject, an observation echoed on the Supreme Court. Congress will likely set higher mandatory minimums for many crimes, again taking away judges' discretion, he said.

Johnny Sutton, U.S. attorney for the Western District of Texas, said he needs more time to digest the high court's ruling. But it doesn't appear "the sky is falling," he said.

"Sentencing guidelines tossed out," from The Pittsburgh Post-Gazette:

Calling yesterday's decision a "mess," Ohio State University law professor Douglas Berman said: "This is going to be applied in diverse and dramatically different ways in the lower courts."

For students of the Supreme Court's internal politics, the split decision yesterday reflected the influence of Breyer, who worked on sentencing reform as the Senate Judiciary Committee's chief counsel in 1979 and 1980 and served on the Sentencing Commission from 1985 to 1989. "This is Breyer's revenge," said Berman. "He loves the world he created and wants to hold onto it any way he can."


Sen. Arlen Specter, R-Pa., who as the Judiciary Committee chairman would preside over any rewriting of sentencing law, reacted cautiously to yesterday's ruling. "I intend to thoroughly review the Supreme Court's decision and work to establish a sentencing method that will be appropriately tough on career criminals, fair and consistent with constitutional requirements," he said.

"Judges Freed From Sentencing Rules," from the LA Times:

By basically preserving the current system, the ruling is not likely to have a broad effect on criminals serving federal terms or those awaiting sentence. It is unclear what effect it will have on future sentencing.

"There are going to be a lot of disappointed criminals in federal prison today," said Kent Scheidegger of the Criminal Justice Legal Foundation, an organization in Sacramento that supports the rights of crime victims.

Some other stories include: "Sentencing ruling may aid Cianci's early release," from the Providence Journal; "Justices weaken sentencing rules," from the Philadelphia Inquirer;"Federal sentencing system to get overhaul," from the Knoxville News Sentinel.

Late Nite Thoughts by Blakely Blog posted

I’ve put together some of my initial reactions to today’s decision in Booker and Fanfan. The decision is a whopping 124 pages and there’s a lot to discuss, of course. These are just preliminary thoughts that I hope to refine and pick-up in the next several months.

The first opinion, written by Stevens, addresses the first question: does Blakely apply to the guidelines? The answer is yes. Although there is plenty to talk about here, the real action is in the second opinion, authored by Breyer.

Two meta-observations. First, the tone of both opinions is rather matter-of-fact when compared to Blakely. Of course, Scalia is not exactly the kumbaya type, but I get the feeling that the bitter fight over the guidelines was waged in Blakely, not in Booker and Fanfan. Second, the Booker and Fanfan opinions don’t cite to academic commentary, whereas Blakely cited to academics on the issue of prosecutorial discretion and pleas. In the remedy opinion, the Court makes several assertions regarding alternative remedies that could have been more fully explored if they had cited to scholarly work.

Now, I’ll turn to a few topics that stuck out to me.

Elements, Statutory Construction and the 6th Amendment

The Court’s first citation is to In re Winship. To my surprise, the Court then discusses Jones at length. Jones was a statutory construction case where the Court was called upon to decide whether Congress intended to create 3 separate car jacking offenses, or whether the statute identified sentencing factors. Although Jones (and Castillo and Almendarez-Torres) are relevant, they do not pose 6th Amendment questions. These cases presume the answer to the question before the Court. We know that the government must prove all elements of an offense to a jury beyond a reasonable doubt. It’s unclear how this line of cases helps us understand how we should treat a leadership enhancement (which is not an element of any offense) in light of the 6th Amendment.

But here’s the tougher question: is drug quantity an element of the offense after Booker and Fanfan? The opinion suggests that they are not, but that they may have to be treated as elements. Judge Easterbrook’s dissent in Booker said that the majority’s conception of drug quantity under Blakely was nothing more than Apprendi. Ok. Where do we stand now?

(I recognize that my thoughts on this are inchoate, but it’s late and I’m still just thinking out loud.)

What’s good law now?

The majority opinion authored by Stevens was forced to confront the viability of several cases now that Blakely applies to the guidelines. Here’s a quick run-down of what the Court said: Dunnigan survives. Witte and Watts are inapposite because they did not present 6th Amendment questions. Edwards and Mistretta are not inconsistent with the Booker ruling.

I find it hard to believe that none of these cases were overruled, or at least recognized as being in tension with the ruling. One gets the feeling that Stevens is distinguishing these cases on very narrow grounds that may not survive closer scrutiny.

Retroactivity, Prior Convictions and Mandatory Minimums

Unfortunately, the Court didn’t say much (if anything) about retroactivity, prior convictions (Almendarez-Torres) or mandatory minimums, and fact finding that leads to the imposition of mandatory minimum sentences (Harris).
This isn’t surprising, I guess, given that the cases didn’t present any of these issues. My guess would be that the Court will now grant cert on a case to handle the retroactivity question, which is the most pressing of these three topics. The Court’s adherence and praise of the Apprendi/Ring line of cases suggests that Booker and Fanfan won’t be retroactive.

What Would Congress Do? (WWCD?)

Debates will surely rage over the majority’s take on what Congress would have preferred if faced with the limitations imposed by Booker and Fanfan.

I’ll just make a brief point here and return to the topic at a later date. The Court appears to interchangeably apply two standards here: what would Congress have intended and what will make the smallest fuss. The second standard appears to play a prominent role and I’m not convinced that that’s the right standard. I am also a bit skeptical of the Court’s zealous protection of judicial factfinding. Of course “court” meant “judge” in 1987. All we knew was judicial fact finding. I’m not convinced that this legislative preference should trump the newly invigorated 6th Amendment. Instead, we’ve been given a “soft” 6th Amendment jury trial right. This portion of the remedy opinion seems out of sync (“old school,” if you will) with the new, hip, “not your found fathers” 6th Amendment that Stevens “updates” for us.

Advisory Guidelines, Relevant Conduct and Uniformity

In the second opinion, the Court justifies its choice of advisory guidelines over a jury fact-finding regime, in part, on the need to ensure uniformity by adherence to the offender’s real conduct, as expressed by relevant conduct. The argument here is that if judges can’t take relevant conduct into consideration, there will be an unbearable sentencing disparity that the SRA was supposed to eradicate.

This argument, in my view, relies on some questionable assumptions about the ability of a jury fact-finding regime to properly “account” for relevant conduct. But even assuming that jury fact-finding could not account for relevant conduct, I’m not sure that the sentencing disparity that the majority is talking about here is the kind of disparity that gave birth to the guidelines. Base level offenses would remain unaffected by a jury fact finding system. The defendant would have to answer for any discoverable relevant conduct that makes it into the indictment. Just how much of a disparity are we facing here?

Not to mention that there are competing sentencing goals that are recognized by the SRA that would counsel against rigid adherence to a real offense system. The Court’s discussion of relevant conduct cast in light of uniformity concerns glosses over the fundamental incompatibility of Blakely and relevant conduct, in my view.

Guidelines Suffer Technical Knockout - May Live To See Another Day by Blakely Blog posted

Here's some old news - the Supreme Court ruled today that Blakely applies to the guidelines. The remedy appears to be making the guidelines advisory, subject to appeal based on a "reasonableness" standard.

I just got my first look at the opinion(s), which you can access here. I reserve the right to correct my characterization if I made a mistake.

More to follow later tonight...

5 hours and counting? by Blakely Blog posted

Well, in 5 hours I'll be on a plane to Ft. Lauderdale. The Supreme Court will announce any new decisions tomorrow at 10 am. So my prediction, based solely on my travel schedule, is that Booker and Fanfan will be decided tomorrow, as my plane takes off.

Details to follow, if I'm right, after I land in FLL.

No Decision Today by Blakely Blog posted

Still no decision. The next possible day for a decision is tomorrow. That and you might even get that pony you wanted for your birthday.

More Exciting News About the Columbia Sentencing Symposium by Blakely Blog posted

I've just been made aware of some exciting additions to the upcoming Columbia Law Review symposium on state sentencing entitled, Sentencing: What's at Stake for the States?

The symposium will be held on the campus of Columbia Law School this January 21 and 22. And we might even have a Booker and Fanfan decision by then! Imagine that.

I've pasted the text of a recent press release announcing the event and some recent additions.

Judge William Pryor Headlines Symposium on State Sentencing Guidelines

Eleventh Circuit Judge William H. Pryor, Jr. Highlights List of Judges, Academics, and Practitioners Coming to New York to Debate the Merits of Various Sentencing Regimes

New York, NY --- The Columbia Law Review announced Thursday that it will be hosting a symposium entitled Sentencing: What's at Stake for the States? this January 21 and 22 on the campus of Columbia Law School in New York City. The symposium, centered primarily on state criminal sentencing regimes, will feature more than twenty of the most interesting and thoughtful voices in sentencing scholarship and practice.

The Supreme Court's decision last term in Blakely v. Washington will very likely lead a number of states to revise their sentencing guidelines, even if only to quell uncertainty as to the case's applicability. This symposium seeks to contribute to these endeavors by providing a forum for candid and lively discussions of the practical and theoretical implications of various sentencing systems and reforms. To that end, it will address a broad range of topics, including the institutional concerns inherent in guideline systems and the competing or complimentary policies underlying different sentencing frameworks.

The keynote address will be delivered by Judge William H. Pryor, Jr., of the Eleventh Circuit Court of Appeals. Throughout his career, Judge Pryor has been an outspoken advocate of sentencing reform. As Attorney General of Alabama, he led the creation of that state's Sentencing Commission, which he saw as a means to achieve "truth in sentencing," eliminate unjust disparities, and relieve a serious prison overcrowding problem and budgetary crisis. He also has championed the use of alternatives to incarceration for first-time nonviolent offenders, such as work and restitution penalties, and counseling for drug offenders.

In addition to Judge Pryor, the symposium will feature professors Rachel Barkow (NYU), Frank Bowman (Indiana), Antony Duff (Stirling), Richard Frase (Minnesota), Kyron Huigens (Cardozo), Nancy King (Vanderbilt), James Liebman (Columbia), Marc Miller (Emory), Kevin Reitz(Colorado), Paul Robinson (Penn), Kate Stith (Yale), Paul Shechtman (Columbia), Michael Tonry(Cambridge), Ron Wright (Wake Forest), and Franklin Zimring (Boalt Hall); Middlesex County(MA) D.A. Martha Coakley; Michele Hirshman of the N.Y. Attorney General's Office; Roxanne Lieb of the Washington State Institute for Public Policy; Barbara Tombs of the MN Sentencing Guidelines Commission; and Judges Gerard Lynch and John Martin, Jr. (retired).

The symposium will begin midday Friday, January 21, highlighted by Judge Pryor's address at 5:30 p.m., and end Saturday, January 22. It will be open to the public and free of charge. For a complete listing of the participants, panel topics, and event times, please visit http://www.columbialawreview.org/symposium/.

I've run out of clever blog posts to communicate that we still don't have a Booker and Fanfan decision by Blakely Blog posted

At least that appears to be the case, based on reports from the SCOTUS blog. This means we have to wait until the new year for a decision. Jan. 11th is the next possible date for an opinion. Wow.

The waiting is the hardest part by Blakely Blog posted

No Booker/Fanfan decision today. Next possible opinion date: Dec. 13th.

Still No Decision from the SCOTUS by Blakely Blog posted

The next likely dates for an opinion are December 7, 8 and 13th.

State Sentencing Symposium at Columbia Law School by Blakely Blog posted

I've just received word that the Columbia Law Review has posted an online announcement of an upcoming sentencing symposium which will focus on state sentencing. The symposium will take place at Columbia Law School on January 21st and 22nd.

The symposium will feature some fantastic panels. Here's what the web site is reporting:

Panel 1: Prosecutorial Discretion and Its Challenges
Michele Hirshman, First Deputy A.G., New York State
Nancy King, Professor, Vanderbilt University School of Law
Ron Wright, Professor, Wake Forest University School of Law

Panel 2: Considerations at Sentencing – What Factors are Relevant and Who Should Decide?
Kyron Huigens, Professor, Benjamin N. Cardozo School of Law
Kevin Reitz, Professor, University of Colorado School of Law
Paul Robinson, Professor, University of Pennsylvania Law School

Panel 3: Theories & Policies Underlying Guideline Systems
Antony Duff, Professor, University of Stirling
Richard Frase, Professor, University of Minnesota Law School
Roxanne Lieb, Director, Washington State Institute for Public Policy
Michael Tonry, Professor, University of Minnesota Law School

Panel 4: The Institutional Concerns Inherent in Sentencing Regimes
Rachel Barkow, Assistant Professor, New York University School of Law
Frank Bowman, Professor, Indiana University School of Law
Marc Miller, Professor, Emory School of Law
Frank Zimring, Professor, University of California at Berkeley School of Law

For more information, check out the CLR web site dedicated to the symposium here.

Gone Fishin' by Blakely Blog posted

This post makes official what is obvious to readers of this blog - I am on a Blakely break of sorts until the Court decides Booker and Fanfan. The demands of Federal Courts, Mass Torts, Trial Practice and Tort Reform Research require my attention while the Supremes trade drafts back and forth.

But once they decide, I'll be back to my old form, blogging virtually 24/7. I've been doing a lot of sentencing reading the last month and I hope that this will help to make my post-Blakely commentary all the more insightful.

Hey, just think. I might be back on the horse on Monday. It could happen.

Blakely and Consecutive Sentences in New York by Blakely Blog posted

Unfortunately, I've been away from the blog for quite some time. My mind has been at ease, however, because I know you are all in good hands as long as Sentencing Law and Policy is out there. Let's face it, in the world of Blakely blogs, Sentencing Law and Policy is the New York Times of blogs, whereas the Blakely Blog has more of a New York Post feel. That's ok, I like it that way.

One of the things that has kept me busy is a pro bono project that I have started as part of Columbia's pro bono program. What am I working on? A Blakely project, of course. I get many emails and letters from prisoners and their family members asking for my help on various Blakely appeals. Unfortunately, I have to turn all of those requests down because I'm not an attorney. Right now, I'm just a guy with a lot of debt and a blog. I've taken-on this pro bono project, which is supervised by a real live attorney, as a way to give back to the community.

Here's what I'm working on, and if anyone out there can offer some help, I'd be very appreciative (especially from jurisdictions outside of NY). This case only concerns New York state law, there are no federal charges. The client was indicted for and found guilty of, among other things, manslaughter in the first degree (NY Penal Law § 125.20 (1)) and criminal possession of a weapon in the second degree (NY Penal Law § 265.03). The indictment did not allege against whom the defendant intended to use the weapon for purposes of the possession charge, which is a distinct crime from manslaughter and relevant for purposes of sentencing. The judge, however, sentenced the defendant for manslaughter and criminal possession of a weapon.

Here's where the specifics of New York state law come in.

The judge imposed consecutive sentences on the defendant despite N.Y. Penal Law § 70.25(2) which states:

When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.

This relevant because if the indictment alleged that the defendant intened to use the weapon which he criminally possessed against the same person who he was charged with manslaughter, § 70.25(2) would likely bar a consecutive sentence.

The question here appears to be: could the judge independently find that that the defendant possessed the weapon with the intent of using against someone not in the indictment for the purposes of sentencing him to a consecutive sentence? Prior to the Blakely ruling, the state argued that the sentence did not go beyond the statutory maximum. That Apprendi-based understanding of the law is clearly undercut by Blakely, but the Blakely issue here is not as clear cut as it is in a number of cases. Was the indictment not sufficient enough to comply with Blakely?

Assuming that Blakely doesn't apply, there is an argument that criminal possession of a weapon is an offense that should be sentenced concurrently with manslaughter under § 70.25(2). My question here is, does the Blakely ruling's like obliteration (maybe "obliterate" is a strong word) of the sentencing factor/element distinction undermine NY precedent which states that possession of a weapon distinct for § 70.25(2) purposes from manslaughter?

I know that there have been challenges in California to the state's consecutive sentences law. Those cases may be inapposite because the defendant in this case is not challenging the constitutionality of § 70.25(2). He is only challenging the judicial finding of fact not included in the indictment. On the other hand, I would still like to hear from anyone who has any thoughts or experience in mounting challenges to consecutive sentencing statutes from all jurisdictions, including California.

I would appreciate it if any one out there was willing to discuss the concurrent/consecutive sentencing aspect of this case, or offer any other suggestions for research outside of New York.

Update: I've added some detail and taken some things out of this post since I first put it up.

"Restitution Proceedings In Federal Sentencing" - An Online Seminar by Blakely Blog posted

On Wednesday, October 20 (9:00 a.m. PST) and Friday, October 22 (12:00 Noon PST), AFDA will conduct an online seminar entitled, "Restitution Proceedings In Federal Sentencing."

The program will run approximately 45 minutes to one hour. It will be held in the ONLINE SEMINARS section of the AFDA web site, which operates like a chat room but with moderator controls. The presentation format will be audio accompanied by the sequential placement of slides in the chat room screen, similar to a powerpoint presentation.

The program will present a five-step analysis in handling restitution determinations. As courts have recognized that restitution is a statutory obligation and thus not based specifically on the sentencing guidelines, this topic remains relevant in our handling of fraud / theft during this remarkable period of uncertainty surrounding the guidelines, as we await the Supreme Court's ruling in Booker / Fanfan.

For more details, please visit the AFDA web site.

Oral Argument Transcripts from Booker and Fanfan by Blakely Blog posted

You can access a transcript of the oral argument here.

California Dreamin' and Some Thoughts About Monday's Argument at the Court by Blakely Blog posted

After spending over an hour on the A train on my way to JFK and five and a half hours in the middle seat of row 32 aboard Delta flight 462, I’ve finally made to the beautiful campus of Stanford Law School. I’m anxiously awaiting the start of what promises to be two great days of discussion and learning. Although this blog represents the bulk of my thinking on Blakely, I hope that as a result of the Stanford conference, I will be able to produce a more serious and scholarly look at Blakely for publication in a law journal. In particular, I am very interested in exploring the historical role of the jury and the Blakely majority’s use of history to justify the majority opinion.

All of that will have to wait a little longer. The conference does not start until the afternoon, so I’m taking some time this morning to offer some of my thoughts on Monday’s argument in Booker and Fanfan.

My Prediction for Question One

As Tom Goldstein, the consummate Court insider, has reported, the word is that the Blakely majority will hold (see this post, and the surrounding posts as well). Based solely on my observation of the argument, I think that the Court will split 6-3 with respect to Question One, with Justice Kennedy joining the Blakely majority. As you may recall, I set the line at 1.5 Justices for the Booker/Fanfan argument, so I guess I think that the respondents will “cover.” (Remember, this is for novelty purposes only.).

Here’s why I think the break-down will be 6-3. First, I’m assuming that the Blakely majority will hold. There were some reports that Justice Ginsburg might defect from the Blakely majority but based on her questions on Monday, I don’t think she’s likely to defect. Plus, others are reporting that she’s sticking with the majority. I guess I just think that’s right.

Second, I can’t see O’Connor or Breyer, after their dissents in Blakely, making a 180 degree turn. These two Justices were the most active questioners of the respondents (especially Breyer), and I don’t think they will change their position. They put too much into being the voice of the dissent in Blakely, in my opinion. The Chief is hard to peg, but my guess is that he will join Breyer and O’Connor in dissent.

Finally, that leaves Justice Kennedy. Remember, Kennedy is no fan of the guidelines. In fact, he dislikes the guidelines so much that he has a report which bears his name that attacks the guidelines. Despite those feelings, he dissented in Blakely, but the handwriting is on the wall with respect to Booker and Fanfan. Why not join the majority? In my notes, I have Justice Kennedy asking only two questions to Acting SG Paul Clement, both on the topic of what constitutes a “Blakely fact.” He asked the SG if there were any facts which could still be found by the judge under Blakely. He used determining the defendant’s remorse as an example. Doug Berman has picked up on this line of questioning, suggesting that the Court start working through a distinction between “offense facts” and “offender facts.” Although I don’t think that Justice Kennedy will be able to convince the majority to endorse his bright-line, I take his questions to those of a Justice considering joining the majority. Furthermore, I think the respondents may have convinced Justice Kennedy that the "collaborative process" or "dialogue" between the branches which he extols in his dissent may have died in recent years.

I know this amounts to nothing more than a hunch, but I’ll stick to it. (By the way, if you haven’t read the Vanity Fair piece about Bush v. Gore, where former clerks on the Court at that time spill some of the beans, you should certainly get a copy. But be warned, there are some harsh words about Justice Kennedy in there and a choice quote from Scalia reminiscing about his days in Brooklyn.).

On the other hand, Justice Kennedy did ask the respondents what can be viewed as some hostile questions. He pressed them on why a standardless discretionary system is preferable to the guidelines; he asked what policy or principle dictated the respondent’s conclusions; and he asked some pragmatic questions regarding factfinding by correctional authorities, as opposed to judges. In a way, these questions are not hostile if Justice Kennedy’s fears of a standardless sentencing regime are allayed by the Court’s answer to question two. If the Court endorses an advisory guideline system, with meaningful appellate review, I think Justice Kennedy’s fears are put to rest and he joins the majority.

Assuming my prediction is right, I wonder if lower courts will be left to pickup where Justice Kennedy left off in the oral argument. Perhaps they will be the ones to propose the line, if there is one at all. As I mentioned at the beginning of this intolerably long post, I’d be interested to see how Justice Kennedy’s line fits with the judge’s and the jury’s historic role.

Question Two – Who the heck knows?

Trying to figure out what the Court will say with respect to question two is likely an exercise in futility. There are simply too many possibilities and permutations which make predicting how 5 members of the Court will vote very difficult. I do, however, think that based on the questions asked by Justice Breyer and O’Connor, which I think focused more on the remedy than the first question (the transcript will prove me right or wrong on that), that these two Justices will try very hard to agree on an answer to the severance question. My inclination here is that Breyer and O’Connor are thinking, “Well, the guidelines are going down and there’s nothing we can do about it. We might as well do what we can to help forge a consensus with respect to the second question. After all, or dissents in Blakely were so pragmatic, we might as well be pragmatic here and do what we can to limit the chaos.”

I could do a little more speculating on question two, but instead I’d like to raise a point which has been haunting me since the oral argument. At one point during the argument, one of the Justices quipped that their opinion on the second question will have limited relevance because Congress will inevitably, and likely quickly, act to repair the guidelines after the case is decided. There are reports circulating that Congress is contemplating a slue of mandatory minimum sentences should the Court invalidate the guidelines. Should that come to pass, I can’t envision who the winners would be.

Only a temporary pause by Blakely Blog posted

I've been offline for a few days, but I will soon return to the blog. I've been busy arguing before the Senate, the Columbia Law School Senate, that is; researching for a professor (non-sentencing related); and reading for class (not so much on the last one).

I'm about 2 minutes, I'll be on my way to JFK where my ultimate destination will be Stanford Law School and the upcoming Sentencing Conference.

More blogging to come...

Late night wrap-up by Blakely Blog posted

First, let me say that I apologize for the errors in the posts by Dave Ziff (which have been corrected). Those errors are my own, not Dave’s and are attributable to my hurried attempt to get news out on the blog. In particular, I offer my apologies to Chris, who is a fellow blogger at TalkLeft and a supporter of this blog.

I’d also like to thank Dave Ziff for taking the time to transcribe my ramblings into something coherent for readers of the blog. Thanks Dave!

Dave’s posts offer a rather broad sketch of the argument. Most of the major threads of discussion and questioning are covered by Dave’s posts, but there are many fine points which were not captured. I hope to raise those finer points over the next few days.

A few other blogs are covering the Blakely argument, notably Doug Berman on Sentencing Law and Policy (who I met in person for the first time, despite our many email exchanges), Tom Goldstein covers the argument with some insider information at the SCOTUS blog and Howard Bashman has coverage of the argument on How Appealing.

Prof. Berman’s first post offers some thoughts on the SG’s arguments on Blakely’s applicability.

Prof. Berman has rounded up the media coverage on his site, too.

I’m going to reserve further commentary until tomorrow (which is now today). What a day! Stay tuned.

by Crouching Hamster posted

Day 4

And I have not left the burrow, other than one time, late last night, to get provisions for me and the animals. I could have carried on, but they must eat, and their stockpile of food had dwindled over the past reckless week.

by Crouching Hamster posted

Hooray for Presidents! Hooray for sleeping in! Hooray for multislacking! (Isn't that what it's all about? Oh, right. Presidential ski trip. I forgot to plan that.)

by Crouching Hamster posted

Listen the snow is falling over town
Listen the snow is falling everywhere
Between Empire State Building
And between Trafalgar Square
Listen the snow is falling over town

Listen the snow is falling over town
Listen the snow is falling everywhere
Between your bed and mine
Between your head and my mind
Listen the snow is falling over town

Between Tokyo and Paris
Between London and Dallas
Between your God and mine
Listen the snow is falling everywhere

Snow dream
Snow fall
Snow fly

- Galaxie 500 version (Yoko Ono)

I love New York.

by Crouching Hamster posted

To be avoided: Bravo (the qualuudes are complimentary!) Pizza on 5th Avenue, near 20th Street.

by Crouching Hamster posted

In response to the recent survey which found that 51% of all American women live without a spouse, the NYT asks, Why are there so many single Americans?

I can think of one reason:

[Content no longer available. Lawyers get testy!]

by Crouching Hamster posted

This week I won a $100 bet that Kerry would not run for POTUS. (Hanging out with trash-talking guys is becoming a real source of income for me.)

I have another $100 riding on a bet that Gore will not run, and $100 that the Dems will put up Hillary and Obama against the Republican nominee.

Easy money. Difficult to collect.

And as progressive and powerful as a Hillary-Obama ticket may sound, it may not be such a good thing. More Republicans will come out to vote against Hillary than Democrats who will vote for Hillary. Even with Obama as a running mate, do we really think otherwise? (I'd love to be wrong about this.) I'm not just talking out of my ass. I'm basing this on readers' comments to Judith Warner's "Trying to Imagine a Woman in the White House." Most took the time to say, "Yes, but not Hillary." It's a small sample, and probably not statistically significant, but very telling nonetheless. One would think that the average commenter on a NYT blog is not a raging Republican. And in fact, many of the commenters describe themselves as die-hard Democrats. And they write that they would not vote for Hillary. Are these fringe Democrats? The ones who voted for Nader? 5%?

This has me a little concerned in that I just want a Democrat in the White House. And any one of the leading Democratic candidates would be phenomenal in comparison to another Republican. Even Hillary. And you all know it. But if we are going to be choosy, let's choose the candidate who can beat the Republican nominee. It's early days, and I couldn't for certain tell you who that is, but isn't that really our goal?

by Crouching Hamster posted

The old crack: sea salt & vinegar potato chips

The new crack: sea salt and cracked black pepper potato chips

(enjoyed in moderation)

by Half the Sins of Mankind posted

The emphasis on private sector jobs is for two reasons.(1) Republicans frequently claim that a job on the government payroll isn't a "real" job, but mere make-work -- even if it produces useful goods or services, such as the roads and bridges built during the New Deal.(2) The austerity-driven cuts in public sector jobs, particularly at the state and local levels, have been a significant drag on

by Half the Sins of Mankind posted

Is Charles Krauthammer Truly Or Only Pretending to Be Thick As Two Short Planks? He concludes a rant against the White House's feud with Fox News (which is foolish of the Obama Administration, undeniably) with this: Defend Fox from the likes of Anita Dunn? She's been attacked for extolling Mao's political philosophy in a speech at a high school graduation. But the critics miss the surpassing

by Half the Sins of Mankind posted

Medal of Honor to James Earl Ray While any transcript produced by Rush Limbaugh himself is suspect, I do think Jack Huberman may have been in error in his claim that Limbaugh at one point said, "You know who deserves a posthumous Medal of Honor? James Earl Ray. We miss you, James. Godspeed."The only person I can find who actually has said that James Earl Ray deserved the Congressional Medal of

by Half the Sins of Mankind posted

Slate Shake Although I find the demands for bridal virginity as appalling as Timothy Noah does, he's nonetheless being willfully stupid about why artificial hymens are considered a threat to conservative Muslim values. Pause for a moment to consider what these men are asking God to protect them from: a cheap, mass-produced insert that releases fake blood. It's the technical equivalent of a

by Half the Sins of Mankind posted

Amazon Oops Evidently there was some confusion about which "Sarah Palin in a partly-unzipped fleece against a blue sky with fleecy clouds" picture to use for the book cover.The one Harper-Collins picked is much more flattering, though it omits Palin's signature can-do up-do in favor of the softer style preferred by the GOP image consultants.

by Half the Sins of Mankind posted

Resolution: No More Betting I picked up a bad habit from my husband, which is to challenge people who are convinced they are right about something that is empirically provable (either now or in the future) to a bet. The habit is a bad one for many reasons, and on a practical level it hasn't always worked out even for my husband, as he's soon due to pay up on a bet he made with one of my friends

by Half the Sins of Mankind posted

You Pick Them Cherries, Girl A summer intern at the Wall Street Journal produced a fawning interview with Gov. Rick "Goodhair" Perry about how totally awesome Texas is, especially compared to California. It's all about as silly as you would expect from the above description, with some extra win in Gov. Perry's admiration for the elderly's opposition to government insurance, because "They like

by Half the Sins of Mankind posted

Countless Screaming Argonauts Christopher Beam trots out the standard "it's economically irrational to vote" argument on behalf of Meg Whitman, who currently seeks to be the Republican candidate for California's next gubernatorial election despite not having registered to vote until 2002. She's apparently been eligible since 1978, which makes the non-standard, Whitman-specific part of Beam's

by Half the Sins of Mankind posted

Gateway =/= Tunnel While Steve Chapman is right to call out the government on its sloppy use of statistics with regard to teen smoking, I don't think he makes a definitive case against the FDA's ban on non-menthol flavors in cigarettes. The question is not what teen smokers are smoking once the habit is established, but rather what they smoked when they first began smoking. I'm among the

by Half the Sins of Mankind posted

Is "Bill Wilson" a Name Associated with Jewish People? I am a little puzzled over the latest rightwing-generated dust-up, which is Americans for Limited Government's claim after ALG sent a mass e-mail under the name of its president, Bill Wilson, an NBC "Dateline" producer responded with "Bite Me, Jew Boy!"So far as I can tell from Googling, Mr. Wilson is not Jewish, and so the reply seems a

by Half the Sins of Mankind posted

What do the House and Senate health care reform bills say about an individual mandate? The WSJ has been running arguments about why health care reform legislation is unconstitutional if it includes an "individual mandate," on the premise that there's no commerce here that Congress would be regulating, and therefore it goes beyond even the broad reading of the Commerce Clause ("The Congress shall

by Half the Sins of Mankind posted

More Depressing Than the Birthers I'm glad I'm leaving the country for a few days, because the debate over the health care bill is really starting to get to me. I simultaneously can't seem to resist reading the news reports about all the stupid things people say and believe, that are blocking out the worthwhile questions about whether HR 3200 (the bill sponsored by Rep. Dingell that has passed

by Half the Sins of Mankind posted

We All Lived Through the 1990s, Right? I'm sort of puzzled by Virginia Democrats' excitement over publicizing Republican gubernatorial candidate Robert F. McDonnell's graduate thesis (submitted in 1989 for a MPP and JD from Regent University). His blueprint for the coming decade was well on point, and indeed even prescient about some of the wackier fringes of the GOP into the 21st century.

by Half the Sins of Mankind posted

I Do Not Think It Means Only What You Think It Means In an article about "Mexican hot dogs" -- distinguishable chiefly for wrapping the dog in bacon before cooking it -- NYT writer John T. Edge refers to this style being even more popular in Tucson than in the rest of the country: In a dozen or more cities across the United States, these Mexican takes on the American hot dog are ascendant — from

by Half the Sins of Mankind posted

The Kind of Catholic You'd Expect a "New American Radical" To Be James Walcott links the Esquire profile of one Mike Austin, who until the article’s publication wrote the blog Return of Scipio. The profile holds Austin up as an example of "the New American Radical"; "he has called President Obama 'evil' and 'malignant,' and he believes, along with much of the hard-line wing of the Republican

by Half the Sins of Mankind posted

God and High School Because I haven't made a blog post out of IMing in a while. A friend (who will go by "DC") posted this on my Facebook Wall with the note, "gosh help us all..."DC: I sent you a youtube video that made me shake my head. I only saw the first 30 secs when they try to tell their friend that India is not in Asia.PG: Oh, there is a lot more to shake your head over. It was giving me

by Half the Sins of Mankind posted

This Is the Debate Conservatives Betsy McCaughey and Sarah Palin accused Ezekiel Emanuel of wanting to limit the medical care available to a child with cerebral palsy. Emanuel's brothers Rahm and Ari are well-known, but he also has an adopted sister -- who has cerebral palsy.

by Half the Sins of Mankind posted

High School I don't know which of my former classmates' actions on Facebook confounds me more:The guy who went to Tulane, failed out because he was partying too much, came back to the local college, graduated and took over his dad's successful insurance agency: Lou DobbsScott Davis is a fan.orThe girl I didn't know well in high school but accepted her friend request because I'm like that, and

by Half the Sins of Mankind posted

If I Say It, They Will Contradict Me I may have to abandon my long-held position that nobody sane will say there is anything racist in a criticism of Obama so long as it is a criticism that would have been made of a white president otherwise identical to Obama. Pretentious elitist, yep; tyrannical socialist, yep; liberal pansy Neville Chamberlain, yep. I had to take Philip Kennicott out of the "

by Half the Sins of Mankind posted

The WaPo Editorial Page Is Full of Fail This Week Today it's Michael Kinsley: You've probably heard by now that Harry and Louise have changed their minds. This fictional couple dreamed up by the health insurance lobby to stop the last attempt at health-care reform -- led by Hillary Clinton in 1993-94 -- is back on the air, declaring that reform is essential. A news release from the insurance

by Half the Sins of Mankind posted

Philip Kennicott Proves Himself the Exception A culture critic for The Washington Post, Kennicott appears to be the one person who does see something racial behind every criticism of Obama -- despite Kennicott himself being a white guy. During last year's campaign, he responded to Republicans' petty criticism of Obama's literal platform to accept his nomination at the Democratic Convention in a

by Half the Sins of Mankind posted

Why Latinos Might Be Angry About Sotomayor's Treatment Eva Rodriguez makes a perfectly unassailable point that Latino voters should not hold against Republican senators a vote against Sotomayor that is based on her legal philosophy ("due process or preemption or disparate impact analysis under Title VII"). What this neglects, however, is that not all of the opposition to Sotomayor that was stated

by Half the Sins of Mankind posted

Or, Uh, The Base-Closing Commission? Ruth Marcus triumphantly ties together two of today's headlines in a single editorial: "If you're interested in how to get health-care costs under control, the case of the F-22 offers an instructive example. ... Which brings me to health care, and one of the most promising ideas for constraining rising costs: Get politics out of the decision making about how

by Half the Sins of Mankind posted

If You Prick Tom Cruise, Does He Not Bleed? Both the NYTimes ad and the publisher's website for the book Valkyrie by Philipp Freiherr von Boeselager (the last surviving member of a group that plotted to kill Hitler) most prominently feature the following endorsement: “von Boeselager’s story is far removed from the new and sanitized Hollywood take on the July 20 plot….[an] astonishing memoir.”-

by Half the Sins of Mankind posted

Isn't This What You Wanted? This WSJ Law Blog post from last Thursday puzzled me: Republican senators are getting at a second bite at Judge Sonia Sotomayor this morning. Their cross exams so far are focused, once again, on the supposed disconnect between Sotomayor, the judge, and Sotomayor, the speaker. The tone has become noticeably chippier this morning, especially from Lindsey Graham (left)

Race, Law Firms, and KIPP by Legal Economics posted

The New York Times, of which I am a voracious reader, recently published an article on the underrepresentation of Blacks at the partnership level in major law firms. The data is indisputable, but the interpretation of the data is not.

Large law firms, attempting to fight the perception of racism and perhaps signing onto some societal goals of racial distributive justice, hire a significant number of minority lawyers whom they would not hire but for the color of their skin. This doesn't mean that the minority lawyers hired are not, generally speaking, high quality law students. However, given the constraint of a limited number of associate positions at every firm, every degree of consideration given to race becomes a degree of consideration not given to other qualities.

To a critic of hiring policies that are not race neutral, the result of few minority associates becoming partners is a natural consequence of this fact. Their assumption is that these other qualities are what make a good candidate for partner. A proponent of the policies, on the other hand, might argue that minorities are excluded because of their race once they become part of the firm, an dthat this could be fixed if firms were to be more proactive. In reality, the reasons why minority associates are less likely than their white colleagues to make partner are complex, and both points are fair ones.

A minority associate most likely has been affected by a long chain of policies preferring minorities: undergraduate admissions, law school admissions, and hiring. The aim of these policies from an equality of opportunity standpoint is to counteract the disadvantages of growing up as a minority. If the policies are simply nudging marginally underqualified people into marginally tougher jobs, then, absent additional resources, they may simply be setting people up for failure who would otherwise succeed. An associate who does not make partner in a top 5 law firm might have made partner in a top 10 law firm, and an associate who does not make partner in a top 10 law firm might have made partner in a top 20 law firm. Having race preferential hiring policies absent some minimum level of additional support for minorities may actually be less desirable for those who share the goals of those policies than not having them at all.

Furthermore, a marginalized minority associate at a corporate law firm in NYC could have used the skills acquired in law school to have become a community leader in a smaller city or town. If we examine the end goals of race preferential policies-- for one, creating positive role models for the next generation of minorities-- I have to wonder whether society wants to encourage large law firms to prefer minorities. Other good reasons may exist for encouraging race preferential hiring policies at large corporate law firms, but at least in this respect the goals seem inconsistent.

In any event, regardless of one's view on race preferential policies for minorities, almost everyone would prefer to eliminate the disadvantages of minorities from the start. The New York Times Magazine recently had a fascinating piece in part on a unique approach to education of poor students. Critics of private and charter schools like to point out that few succeed at educating students where public schools also fail. However, KIPP schools, an uncommon exception, may prove the rule about the worth of exploring alternatives to the traditional public school system and its educational methods.

The idea the biggest differences in the outcomes of former children of poor parents and former children of wealthier parents is in the ways they are raised to communicate is an appealing one. Yet I have to wonder how much of the difference in KIPP's results is based on factors other than teaching philosophy, such as KIPP teachers' willingness to put in 15 hours a day on a regular basis. This amount of work may even make some corporate lawyers feel lazy. Despite the numerous challenges faced by low income students and public school districts in low income areas, I suspect that ultimately the reason many people in this country are undereducated is simply because society sets a low priority on education and has a low expectation of children of poor parents.

What would the world be like if we gave public school teachers in even the lowest income districts the professional respect and salaries of corporate lawyers and investment bankers and in return demanded similarly high levels of performance? My thought is that the government should be require extremely high performance from poor schools and, in return, be willing to throw large enough sums of money at teachers and administrators who are competent enough to overcome these challenges posed by such settings. If we lived in a society with true equality of opportunity, where students from poorer backgrounds consistently achieved as high as students from wealthier ones, perhaps the need for race preferential policies at any level would disappear.

Overpollution by Legal Economics posted

The type of lawyer I will be was determined recently in Torts while we were talking about the Coase theorem and homeowners damaged by pollution. I suggested that if I were a factory owner having the right to pollute and homeowners could pay me to stop, I would choose to pollute much more than I needed in order to hold homeowners hostage for the entire surplus.

To borrow on the example from my class, let's say that when I, the factory owner, have the right to pollute and produce at my operations profit-maximizing level, I cause $500 of harm to 10 homeowners. Let's also assume that they can act as one unit. In this situation, we might think that homeowners collectively would be willing to pay me up to $5,000 if I could eliminate the pollution entirely. Assuming no transaction costs we would ordinarily just set the marginal social benefit of pollution abating equipment equal to the marginal social cost of the equipment.

However, let's assume that I decide to pollute slightly above my operations profit-maximizing level. We have two costs to this: 1) the cost of increased pollution, and 2) the cost of generating excess pollution. If the second cost is roughly nil, in a world without the homeowners I would be indifferent to the level of pollution. However, in a world with the homeowners, the more harm I can cause, the better bargaining position I am in. If I can cause $10,000 in harm instead of the operations profit-maximizing level of harm, I can hold up the homeowners for an additional $5,000 in order to eliminate the pollution. In non-discrete terms, I would have an incentive to cause pollution as long as each additional unit of pollution I caused increased the amount of free money I could get from homeowners later on. In theory, the only check on the potential maximum compensation I would get would be when the homeowners' marginal utility of decreasing pollution met my marginal cost of producing it. However, let's assume the curves diverge. Say the cost of producing pollution is held constant at 0 and the marginal utility of decreasing a unit of pollution is constant.

Now, we would only have to compare the marginal utility of decreasing pollution with the marginal utility of purchasing other goods. Assuming the marginal utility is very high relative to other goods, I could theoretically reduce the homeowners surrounding my factory to the level of subsistence and take virtually all their surplus utility. True evil.

The more interesting point is why this doesn't work. Looking from a broader viewpoint, all of us can do all kinds of things in our lives to harm other people, but usually refrain for good reason. Cooperation tends to be a more effective strategy than defection. People don't like feeling cheated or held hostage. Additionally, if factories owners began doing this to people, their right to pollute would eventually become a right of homeowners not to suffer from pollution (and homeowners might then hold factories hostage for their profits).

The other interesting point is in the distinction between a property right and a right to recover for harm. If a homeowner is particularly sensitive to pollution, a right to recover for harm in a court would require this person prove that unusual sensitivity in order to receive increased damages. However, damages would have to be proven and would have to conform to some standard of reasonableness. A homeowner could not simply get away with claiming that he just really hated pollution and that it was worth a lot of money for him to be pollution free when this preference wasn't within so many standard deviations of the mean preference.

At least to some extent, we want to extend property rights over the right to recover for harm (and injunctive relief over damages) when we want to allow more room for individual idiosyncracies. Perhaps on a broader scale, the ratio of absolute property rights to indeterminate tort rights is a measure of society's valuation of individuality to efficiency.

Strict Liability or Negligence by Legal Economics posted

I really love my torts class and professor (Baker). He is an insurance/economics guy, and I feel like the issues we discuss in class are always on a really high order of abstraction. This makes things very interesting and fun. Baker basically just explains the cases briefly and then asks people questions about (in my mind) more important things-- the principles that are drawn out of the cases.

One of the issues we have been talking about a lot is the trend for courts to hold people or companies responsible for harm to others only when they are negligent.

The standard for determine negligence is generally "reasonable care." In other words, the amount of care a reasonable person would take. Since this is really vague, courts have employed a cost-benefit analysis called BPL. The "Burden" of a measure must be less than the "Probability" times the "extent of Loss" in order for an entity to be held not to have taken "reasonable care."

The negligence standard may have an appeal for intuitive reasons of fairness, but I believe that a strict liability standard would be more efficient.

Imagine that a company can spend from 0 to 100 on safety, and that customers can incur a loss of 0 to 100 from injuries. Companies face declining marginal returns on investment, meaning that the moving from level 0 to 1 produces a lot of decrease in the cost of injuries, whereas moving from level 99 to 100 produces almost no decrease. The optimal level of investment is where the sum of costs (actually net costs, but I'll just refer to them as costs for simplicity) are minimized. The graph would look something like this.

The distance from the point (0,0) to the line is also minimized here. For those of you who weren't math majors and can't tell what the algebraic function would look like from the graph: Cost of Injury = (Some Constant) * (Cost of Investment)^x, where x, the power (exponent) of Cost of Investment, is between 0 and 1. (Fun fact: when x = .5, the angle of the line from (0,0) to the Total Cost line is exactly 45 degrees.)

In this case, the optimal level of investment is 45, and the optimum amount of injury to customers is 25. Because of declining marginal net benefit on investment (because x is between 0 and 1), it is impossible to eliminate all injury.

Assume that the probability that an accident will happen to any one customer is very low. People tend to discount or even truncate low probability, high consequence events when making decisions, so absent a law imposing any liability on the business, it would never bear the social costs of investing no money in safety. Therefore, it's really wonderful that we have liability law. In fact, since x is between 0 and 1, the Total Cost line forms an asymptote with the x-axis. If a company spent 0, cost to injured customers and, in turn, society would be infinite. (I point this out, of course, to show the limitations of using mathematical models. At some point customers would start considering safety. However, within a certain range the model approximates reality quite well, which is why people use it.)

In order to maximize social welfare, we want a company spending less than 45 to raise its spending to the optimal level, and we want a company spending more than 45 (over prioritizing safety) to lower its level of spending to the optimal level.

Now comes the fun part. Social cost is actually a function of the standard deviation from the optimal level of investment of companies in this industry. I won't prove that (partially because I think I lack the math skills, but I would be grateful if someone else would like to in a comment). Just think about it for a second. The further away from optimal a company goes, the greater the total cost to society. In fact, the cost gets greater at an increasing rate.

In other words, we can say that Society's Costs = (Std. Deviation)^x, where x is greater than 1. (I think this is because the power of x in the equation above was less than 1. Now I'd really be interested to see the math if someone wants to tackle this.)

So, we can view reducing standard deviation from the optimal level of investment as a goal in itself. In other words, a low margin of error from optimal is extremely valuable.

Under the negligence standard of "reasonable care," courts are supposed to make this determination. Businesses have to try to pursue not the optimum level, but the level at which they think the court will consider "reasonable." Businesses spend tons of money every year and hire professional industry analysts to try to make precise, quantitative cost-benefit analyzes. If businesses were internalizing these cost-benefit analysis decisions entirely (that is, if they were required to pay for all the costs: the cost of investment and the cost of injuries), then they would have a significant incentive to meet the optimum level of investment as closely as possible and to keep low the industry's standard deviation from optimal investment.

Courts, however, do not employ management consultants with MBAs from MIT. The standard deviation from optimum when the court decides liability under "reasonable care" on a case by case basis will much higher. This is both because the court's own approximation of the optimum level of investment is likely to be imprecise and also because the decisions are somewhat unpredictable-- businesses will have a hard time trying to measure what "reasonable care" is.

Holding a business liable under a relatively strict standard would force businesses to internalize all the costs of injuries. They would ultimately choose something close to the optimal level of investment and then pay for any injuries that did occur. This would both decrease the standard deviation from optimal and decrease the amount of litigation, since the business would have a large incentive to settle most claims when it knew it would be forced to pay most claims.

Furthermore, a business gets a "double payout" for investing in a reasonable amount of care. Not only do they reduce the number of injuries and thus the number of claims they might have to pay, but they also don't have to pay claims at all as long as they exercise what the court considers "reasonable care." Conceivably, this would lead to over investment in safety compared to a stricter standard. Firms under "reasonable care" would be very concerned with erring on the side of caution. Assuming courts don't dictate a suboptimal level of investment to begin with (which is a possibility), this would lead to over investment in safety.

As long as the law can fully compensate me if I am injured, I would personally prefer for firms to be as efficient as possible because this would give me the highest quality service at the lowest cost. Whether they err slightly towards investing too much in safety or slightly towards investing too little is pretty irrelevant to me, assuming the law will fully restore me if I am injured.

I also think issues such as moral responsibility and blame apply only to individuals. When dealing with repeatable, predictable events on a large scale, statistical level, a focus on efficiency and preventability should trump attempting to apply standards of morality developed for individuals to multimillion dollar or multibillion dollar organizations.

Also, some non economists fail to realize that the arguments economists make about efficiency do not have normative components to them. In this case, I am not sure that the other values are incredibly important compared to the extreme inefficiency of the "reasonable care" standard. However, I don't make this claim with much force, and I haven't put a lot of thought into it. I'll stand by my math and economics, but there is much room for debate on the value level.

Waste and Pareto Inefficiency in the Columbia Bookstore by Legal Economics posted

Before arriving for orientation at Columbia (two days before our first class), the administration failed to tell us anything about either our classes or the textbooks we would need for them. We all had to buy them new at the Columbia bookstore instead of having the opportunity to buy them through amazon.com or another source cheaper than the bookstore. The bookstore failed to order enough textbooks despite an agreement with the professors of our Legal Methods course, and there were severe shortages. The store had to have these books shipped overnight at great expense to them and the inconvenience to many students.

I purchased all my textbooks at the Columbia Bookstore as soon as I got my schedule. I carefully read their return policy because I hate to buy new books if I can help it and wanted to try to avoid some of the potential costs to me of the decision by the administration not to give me an idea what textbooks I should buy in advance. The policy stated there and in other places in the store was that I could return the books up until September 14th, the end of the second week of classes at the main campus. Of course, I read all of the exceptions to insure that I would actually be able to return these books if I ordered cheaper ones online, and I even confirmed with the clerk that I would be able to do this.

I went and purchased a ton of cheaper used books online with the intent to return all of my new ones. I also selected the slowest, cheapest shipping method with the understanding that I would be fine to return the books up until September 14th.

When I went to return some today, they pulled out this sheet of paper saying that I had never seen before:

I told the woman that I had never seen that sheet and that the policy they gave me with the receipt says that the last day to return the books is September 14th.

As I anticipated, she told me that that doesn't apply to "special courses." I then whipped out my statutory interpretation skills and pointed her to the relevant text of the policy, which as you can see, clearly states "special one-week courses," not "special courses."

The woman then went into the back, apparently to talk with managers. After a few minutes she came back and told me that the books have stickers which say "no return" on them, but that she would go ahead and make this one-time exception for me. I wasn't going to give up, however, because I still have over $150 worth of books I need to return when I get the used books in the mail.

I said that none of the books I purchased had "no return" on them, and I told her there was nothing about no return on the books as I bought them. She replied that mine must have been the only ones without this information, and then when I challenged her on this she there was something actually on the book description below where the books are.

I told her that if I actually had missed this on the day when I bought my books, then I understood that I wasn't entitled to refunds on these and wouldn't press my case, but she insisted that they would make a one-time exception for me-- they just didn't want everyone bringing their books back.

I went to the back to see how I could've missed these stickers the first time I bought the book because I was genuinely curious and convinced that I had made a mistake. I find one of the books on the list, the Strauss Legal Methods book, and am looking for something that says "No Return." Not being able to find this, I ask the bookstore employee standing to my left if these books are "No Return" and where it stated that. As I ask him this, I notice that he had in his hand a big roll of bright-red "No Return" stickers and that he had been just been plastering these all over the section which contained our "Legal Methods" books. In response to my question, he held up the stickers and said he was about to post one there (by the Strauss book) as well.

He then asked me if I was the one up at the front, and I told him I was and then explained that I had been planning to return many more of the books before September 14th than just the two I had brought with me today. He asked me when I would be able to do it and I said "Probably within a week." He then told me they would make an exception for me and told me to ask for him by name when I came back to return the other books.

This whole fiasco was a pretty clear attempt by the bookstore to enforce a new return policy after we had all already bought our books under the previous policy. While I understand their desire not to lose money on these books, they are the ones who messed up by not labeling the books as "No Return" or adding this into their policy before I bought them. This oversight on their part caused many of us at the law school to order used books online under the assumption we would be able to return them.

I rightly assumed there is at least one other 1L who bought these books before they put up the stickers and now wants to return them. I knew the bookstore would direct them to the stickers if the tried to return the books, so I wanted people to know that these stickers were only put up today, and that the bookstore is clearly in the wrong here, so I posted a message on a CLS '09 Facebook thread.

While I suspect many people will end up getting these refunds, in a way this is a hollow victory. I am sickened by the obvious Pareto Inefficiency of the circumstances surrounding all of this. If the company ends up complying with its own stated policy, then this only shifts the cost of a massive amount of waste they created back onto them, which I think is only fair.

The waste they created is defined as the money students spent on used books ordered to replace these new ones (Used Cost), minus the resell value (Resell Used) adjusted for the shipping costs here and to wherever they would go next (Shipping) and for the extreme hassle everyone would have to go through in order to sell these books and ship them out (Hassle).

More concisely, the waste to law students if the store did not honor its policy would be:

(StudentWaste) = (Used Cost) - (Resell Used) + (Shipping) + (Hassel)

The significant costs to the bookstore of absorbing its mistake would be the restocking expenses (Restocking), the storage fee for all these books for one year and the lost opportunity cost of storing other things (Storage), the loss to capital including the opportunity cost of capital-- in other words, they could have had the money invested in an appreciating rather than depreciating asset-- (Capital), and the potential for massive depreciation of capital if the professors decide to publish a new edition or decide to switch curricula at all (-Resell)+(RiskChange)(CostChange). Of course, 0 < (RiskChange) < 1. Thus, the costs of the waste to the bookstore is:

(StoreWaste) = (Restocking) + (Storage) + (Capital) - (Resell) + (RiskChange)*(CostChange)

One thing I would like to note here is that, if (StoreWaste) > (StudentWaste), then the Pareto-Efficient outcome would be for the students not to return the books and for the store to pay the students some premium (PayOff) in addition to (StudentWaste) in order to have the students deal with the problem. In order to be Pareto-Efficient, that is, beneficial for the bookstore and the students in this circumstance, the equation would have to be as follows:

(Payoff) + (StudentWaste) < (StoreWaste)

A second, more significant level of waste may have been created by the administration's failure to inform student's of their class schedules and required textbooks in time for the students to order used books before arriving at Columbia. The administration may have had good reasons for not having done this, but I think any reasonable person would concede that we should be weighing whatever those reasons are against some precisely-defined costs to the students and the bookstore.

New books experience a high amount of depreciation on sell-back, particularly if students need to write or highlight in them, which is the case with many law-school textbooks. Although compared to the market for other textbooks, the market is much tighter for clean law textbooks and depreciation higher (since most students will still be writing in the clean used book), I'd still estimate that students can save at least 30% by buying a clean used copy and 10% buying a new copy online. (The textbooks bought at the bookstore were not subject to sales taxes, or this would change the formulation to weigh even more heavily towards buying online.)

In addition to the percent savings estimates, I will make the following additional assumptions in calculating the cost of the administration's policy:

1) All students paid an average of what I paid at the bookstore, $246.35.

2) Only new copies were sold to students in the bookstore.

3) 250 out of 350 students in the 1L class at Columbia would have chosen a clean used copy over a new copy if any price difference existed between the two.

4) Out of the 100 students who preferred the the new copy, 50 preferred the convenience of the bookstore over ordering online.

With these things in mind, some simple mathematics can shed light on the cost of the administration's policy of not ordering textbooks (Cost Policy):

(CostPolicy) = ($246.35)*(.7)*(250) + (246.35)*(.9)(50)

(CostPolicy) = 54,197

As this figure suggests, my assumptions allow for a fairly wide variation before (CostPolicy) becomes insignificant.

Before finishing and getting to the reading of these books I'm discussing in the abstract, I'd like to delve into some possible components of (CostPolicy) and suggest that there may be a Pareto-Efficient alternative to the current policy.

First, let's make the simplifying assumption that the only parties we should care about are the law school, professors, and student body. Also, we'll assume while working with the benefits and costs to each entity that no benefit or cost to one entity have any positive or negative effects on any other entity other than effects I state below. This last assumption is highly doubtful given the nature of the relationships among the 3 entities, but we can cast this aside since the outcome I'm going after, Pareto-Efficiency, harms no entity while benefiting at least one entity.

Let's assume that the law school gets a percentage of every sale that the bookstore makes to entering 1Ls. If (KickBack) < (CostPolicy), that is, if the total amount of income the law school receives from these books is less than $54,197, then this situation is Pareto-Inefficient between the two parties. Since professors are also getting royalties from every sale of a new book they have written or edited, then we must add this into the equation as well.

How we account for royalties is a bit complicated, because if a student doesn't buy a new book at the bookstore, that doesn't mean that the professor completely loses royalties for that book, since a student then shifts her purchase to the used market. This purchase in the used market depletes the supply of used books, and the student's markings in the books deplete the supply of clean used books, making the price of all used books higher, and closer to the price of new books. Since new books and used books are imperfect substitutes, the markets for the two types overlap significantly. If the supply of used books falls, the demand for new books rises, although not at a 1:1 ratio (otherwise they would be perfect substitutes).

Even making an educated guess about this ratio, called the degree of substitution elasticity, would require an insanely large amount of data which I, unfortunately, threw away just today thinking I would never need it. In any event, my intuition is that this factor is quite significant and so I will assign it (SubElasticity) a value of .5, which I think is very conservative given the high premium placed on clean copies of the books. I would give this number a much higher weight if I could safely assume the book was used by thousands of students in classes around the country and take the preferences of the 1L students at Columbia as a negligible part of this whole.

Assuming that every new book a student forgoes for a clean used book costs the professors half the royalties they otherwise would have received, assuming that professors at this law school are collectively are receiving a 15% royalty on the books we buy with them as editors or contributors, and assuming everyone bought the Strauss Book which I bought for $92.15 and the optional Greenwalt book which I bought for $17.75, then we can define net royalties (those existing under the current policy, but which would be lost if students knew about their textbooks in advance) as:

($92.15+$17.75)*(.15)*(.75)*(250) or (NetRoyalties) = $3090.94

This is not an insignificant cost, but is of a different order of magnitude than the aggregate cost of the waste imposed on students (CostPolicy), which, again, is $54,197. Even if the law school gets an additional 5% (KickBack) from every book sold at the bookstore, the benefit to the law school and professors combined still doesn't even come close to (CostPolicy).

(KickBack) = (.05)*(300)*($246.35) = $3695.25

(KickBack) + (NetRoyalties) = $6786.19

Now we get to the good stuff! Any "other reasons" that Columbia might have for this policy must add up with (KickBack) + (NetRoyalties) to equal (CostPolicy). In other words, the "other reasons" must be worth $47,410.81. To put it all together simply, if: (OtherReasons) + (KickBack) + (NetRoyalties) < (CostPolicy) then the situation is Pareto Inefficient. As long as (OtherReasons) is less than $47,410.81, and, there may actually be no other reasons, then the situation is not optimal.

The cost of waste to the student body in this scenario is $154.85 per student. The cost of the law school's kickbacks and the professor's royalties combined in this scenario is about $19.39 per student. Subject to significant inaccuracy in accounting for one or more crucial assumptions, the model I've set up clearly shows that the law school community is harmed much more than it is helped by this policy.

To put this more bluntly, if the law school informed students of the textbooks they needed to buy beforehand and incoming 1L students next year simply gave the law school an extra $154.85, the students would be no worse off than they are under the current policy (assuming the bookstore doesn't allow returns) and the law school would have an extra $47,410.81 after they paid off the professors for lost royalties. If the 1L students next year simply compensated the law school and professors for all their losses in exchange for the change in policy, the student body would have an extra $47,410.81 and the school and professors would be no worse off than they are now.

What's important to me as an economic thinker is not whether such a surplus is distributed to one group or another. Certainly, every group would want a share of the bigger pie. However, I am very concerned with the complete waste in aggregate of tens of thousands of dollars if no good (OtherReasons) exist for 1Ls not being able to purchase these textbooks online ahead of time.

Industrial Safety (2 of 3) by Legal Economics posted

The data available comparing the number of railroad workers injured and killed in the late 1800s to the price of preventing most of these injuries and deaths suggests that employees, if employees were assuming these risks for higher pay, were placing an incredibly low value on their own lives. However, a more plausible explanation asserts itself, and that is that people tend to discount both long-term risks and low-probability high-consequences events when making decisions. In other words, someone offered a railroad job was very unlikely to be thinking of (or even have the capability of accurately assessing) the multitude of low-probability high-consequence risks when deciding whether to take the job or not. He was more likely thinking of how he was going to feed his family. Even if a potential employee did consider these risks and demanded a higher wage, the railroad could always find hundreds of other qualified candidates not considering these risks and willing to take a lower wage. In the absence of collective bargaining, we again encounter a race to the bottom-- this time in hiring.

However, before we pull out our copy of Das Kapital and start planning the revolution, we should examine how we could harmonize the incentives of managers with morality.

The Railroad Safety Act of 1886 was an attempt to remedy this situation. The legislature perceived this social inefficiency and properly concluded that there were too many unnecessary deaths and industries in the injury. Their solution to the problem was to require railroads to install certain equipment on the trains which would prevent a significant number of injuries and deaths.

While the legislation succeeded in reducing the number of casualties among railroad workers, it was a blunt ax where a fine scalpel would have been of better use. In light of the confusion in the industry and courts over interpretation of some of the statutes, the simplest solution to this problem (and similar problems in many industries) seems to have been simply to alter the common law doctrine of "assumption of risk" by statute, creating a legal presumption that an industry would be completely or in some significant part liable for any damages suffered by its employees in the course of their work. If companies had to pay out a certain amount every year for every employee hurt or killed in the course of employment and these amounts were assessed in line with people's true values of life and bodily integrity, then the companies would be in a good position to harness their competitive energies towards allocate scarce resources to preventing the greatest number of injuries and deaths as cheaply as possible.

One implication of this solution, given that workers don't properly account for the risk of injury or death at the time an employment contract is created, is that railroads could simply require workers to assume these risks explicitly as a condition of employment. Indeed, this happened in England with railroad safety legislation in the same time period and drained the legislation of all its power. If we are not to accept the inefficiencies of an extremely artificially low value being placed on life and if we assume we can't change human nature to make people fully take these risks into account, only two possible solutions arise.

If workers were not allowed to assume these risks either implicitly or explicitly, companies would be forced to assume liabilities. One of the objections to requiring this in common law was the idea that people should have some sort of fundamental right to contract. More broadly, this belief is based on values of personal freedom and autonomy. A strict deontologist would conclude that these values should never be sacrificed for utilitarian ones, like saving many lives and preventing many injuries. If this is the only feasible way to attain those utilitarian goals in a capitalist system, then I find the argument unpersuasive.

However, John Kenneth Galbraith's concept of countervailing power points to another solution, but a discussion of that concept and solution will have to wait until I can get away from my casebook again.

Industrial Safety (1 of 3) by Legal Economics posted

In 19th century American and English law, the legal doctrine of "assumption of risk" kept workers employed in dangerous industries from collecting damages from their employers for injuries on the job and kept the widows from collecting in the event of death. The primary causes of injury and death were when men had body parts smashed while linking cars together with a pin and when they fell or were knocked off of the tops of moving trains. The percentage workers killed or seriously injured in the railroad industry was staggering, and in an era before the modern welfare state and before workers formed cooperative insurance companies to pool risk, this legal principle effectively condemned widows, crippled workers, and their families to destitution.

The principle of "assumption of risk" was based the belief that railroad workers, upon taking employment in the industry, were accepting the risks of a hazardous occupation in return for better pay, and that this higher pay released the employers from liability. In common law, when a person took employment, he or she was legally presumed to have assumed all the risks of that employment unless the employee and employer explicitly contracted otherwise. Why would presumption be that the employee and not the employer assumed the risk of the occupation? This notion may seem odd to the 21st century reader.

In pre-industrial times, this policy may have made economic sense. That is, holding employees liable might have prevented more injuries and deaths for a lower cost than holding employers liable. In the late 19th century, however, management theorists began to turn the lens of their industrial theories to focus on the problem of risk. If managers were to accept human fallibility as inextricable component of homogenous, industrial process, then they could develop systems which would minimize the risks posed when a worker inevitably made a mistake. The answer to whether workers or employers could best manage risks comes down to an issue of information asymmetry: while a worker may only have had access to his own experiences and those of a few fellow employees, the management of a national railroad company potentially had access to mountains of risk data from which patterns could be inferred.

Because of this asymettry, the argument goes, an employee would have to exert significant resources to preventing injuries, whereas managers could prevent them relatively cheaply. Scientific scrutiny of industrial organization reduced the costs of production for many other commodities, and now the commodity of safety could also be purchased much cheaper.

However, here we encounter the fundamental problem. If a company supplying a homogenous good, coal for example, can devise a way to increase efficiency by lowering the marginal costs of each unit of coal, it can undercut its competitors, steal business, and reap increased profits. The increased profits of the innovator and decreased price of coal in the market induce other coal producers to adopt such a practice (or innovate themselves) in order to decrease operating costs and survive. At the end of this cycle, consumers spend less money to buy coal, and producers operate more efficiently.

In the case of safety this principle operates in quite the opposite way. If workers assume all the risks of their occupations, then a manager has no financial incentive to worry about worker safety. One might argue that a moral incentive is enough, and that a manager should undertake to improve worker safety because it's the right thing to do. However, assuming that any dollar spent on safety is an expense and is not recovered by savings from lower wages (an argument I will address shortly), any dollar spent on safety must come either from increased prices or decreased profits.

As it turns out, neither of these options actually increase the welfare of the business. If the company attempts to pass on the cost increase to indifferent consumers, who only care about the price of the final good (and not about the 1 in 10,000 chance that someone involved in the production of a unit would be seriously injured), then these consumers will begin to buy all their products from the company's competitors, forcing the business either to cease making expenses for safety or to go bankrupt.

One might be tempted to see this situation as a conflict between the greedy company's desire for profit and the safety of common workers. However, if the extra dollar spent on safety is taken as a loss by the company, the return on investment to shareholders will fall. The company must compete with other companies for shareholders' capital just as much as it competes with other companies for product sales. If shareholders are relatively indifferent to the suffering of a company's ex-employees and their families and remove their capital from our socially responsible coal company, the business will no longer have the means to expand and will likely shrink.

What should be drawn from this analysis is that, if a company chooses to be humanitarian in this environment, it will likely go bankrupt or at least remain a localized oddity. The end result is that all successful businesses are immoral.

But wait! What about the assumption of risk doctrine? Isn't a company's cost of labor higher because of the extra pay it gives to workers to compensate them for taking a risky job? If so, wouldn't the company more than make up in savings on wages what it spends on safety?

I will address these questions in the next post.

Introduction: Positive Externalities by Legal Economics posted

The idea for this blog came to me after a discussion section for my first year Legal Methods class at Columbia Law School today. During this class, I had spoken out on a number of issues relating to some legislation passed in the 1890s and a subsequent court case interpreting this legislation. I was tearing into the legislature, the ICC (Interstate Commerce Commission), and a federal appeals court with what were, to me, dry and obvious economic arguments involving phrases such as "perverse incentives" that sounded much more emotionally charged in a legal setting than they ever did to me in my economics classes. I thought I had come off as framing the issues in a very simplistic way, and was a bit embarrassed. I was surprised when, later in the day, several people in my class who made a number of good points themselves, complimented me on the issues I had raised in the discussion section.

The tools of economics have so far been vital to my positive and normative understanding of the law, and I expect they will continue to inform it as I continue through law school. In addition, the context that an economic framework provides helps me better retain the issues of law and legal theory that may be more directly relevant on a final examination. Expressing these thoughts to larger audience and flushing them out more fully through debate may contribute even more to my retention and understanding and, ultimately, to my success in law school and beyond.

Thus, the benefit of readers is not my primary concern, but hopefully my activity will produce some useful externalities.

at least his partners know he has a blog by the dark goddess of replevin speaks posted

brief means brief by the dark goddess of replevin speaks posted

Service Snakes by the dark goddess of replevin speaks posted

grandfathered in, or perhaps grandmothered by the dark goddess of replevin speaks posted

the gauntlet is thrown by the dark goddess of replevin speaks posted

"game of lighter fluid tag ends badly" by the dark goddess of replevin speaks posted

OMG! WTF? by the dark goddess of replevin speaks posted

link rot by the dark goddess of replevin speaks posted

never heard of this one! by the dark goddess of replevin speaks posted

why i think twitter is stupid by the dark goddess of replevin speaks posted

Free as in … ? My LibrePlanet 2016 talk by Blog – Luis Villa: Open Law and Strategy posted

Below is the talk I gave at LibrePlanet 2016. The tl;dr version:

  • Learning how political philosophy has evolved since the 1670s shows that the FSF’s four freedoms are good, but not sufficient.
  • In particular, the “capability approach” pioneered by Amartya Sen and Martha Nussbaum is applicable to software, and shows us how to think about improving the capability of people.
  • There are a bunch of ways that free software, as a movement, could refocus on liberating people, not code.

I did not talk about it in the talk (given the audience), but I think this approach is broadly applicable to every software developer who wants to make the world a better place (including usability-inclined developers, open web/standards folks, etc.), not just FSF members.

I was not able to use my speaker notes during the talk itself, so these may not match terribly well with what I actually said on Saturday – hopefully they’re a bit more coherent. Video will be posted here when I have it. [Update: video here.]

image from talk

Most of you will recognize this phrase as borrowed from the Wikimedia Foundation. Think on it for a few seconds, and how it differs from the Four Freedoms.

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I’d like to talk today about code freedom, and what it can learn from modern political philosophy.

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Last time I was at Libre Planet, I was talking with someone in a hallway, and I mentioned that Libre Office had crashed several times while I was on the plane, losing some data and making me redo some slides. He insisted that it was better to have code freedom, even when things crashed in a program that I could not fix without reading C++ comments in German. I pointed out, somewhat successfully, that software that was actually reliable freed me to work on my actual slides.

We were both talking about “freedom” but we clearly had different meanings for the word. This was obviously unsatisfying for both of us – out common language/vocabulary failed us.

This is sadly not a rare thing: probably many of us have had the same conversation with parents, friends, co-workers, etc.

So today I wanted to dig into “freedom” – what does it mean and what frameworks do we hang around it.

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So why do we need to talk about Freedom and what it means? Ultimately, freedom is confusing. When card-carrying FSF members use it, we mean a very specific thing – the four freedoms. When lots of other people use it, they mean… well, other things. We’ll get into it in more detail soon, but suffice to say that many people find Apple and Google freeing. And if that’s how they feel, then we’ve got a very big communication gap.

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I’m not a political philosopher anymore; to the extent I ever was one, it ended when I graduated from my polisci program and… immediately went to work at Ximian, here in Boston.

My goal here today is to show you that when political philosophers talk about freedom, they also have some of the same challenges we do, stemming from some of the same historical reasons. They’ve also gotten, in recent years, to some decent solutions – and we’ll discuss how those might apply to us.

Apologies if any of you are actually political philosophers: in trying to cram this into 30 minutes, we’re going to take some very, very serious shortcuts!

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Let’s start with a very brief introduction to political philosophy.


Philosophers of all stripes tend to end up arguing about what is “good”; political philosophers, in particular, tend to argue about what is “just”. It turns out that this is a very slippery concept that has evolved over time. I’ll use it somewhat interchangeably with “freedom” in this talk, which is not accurate, but will do for our purposes.


Ultimately, what makes a philosopher a political philosopher is that once they’ve figured out what justice might be, they then argue about what human systems are the best ways to get us to justice.

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In some sense, this is very much an engineering problem: given the state of the world we’ve got, what does a better world look like, and how do we get there? Unlike our engineering problems, of course, it deals with the messy aspects of human nature: we have no compilers, no test-driven-development, etc.

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So before Richard Stallman, who were the modern political philosophers?

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Your basic “intro to political philosophy” class can have a few starting points. You can do Plato, or you can do Hobbes (the philosopher, not the tiger), but today we’ll start with John Locke. He worked in the late 1600s.

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Locke is perhaps most famous in the US for having been gloriously plagiarized by Thomas Jefferson’s “life, liberty, and pursuit of happiness”. Before that, though, he argued that to understand what justice is, you have to look at what people are missing when they don’t have government. Borrowing from earlier British philosophers (mostly Hobbes), he said (in essence) that when people have no government, everyone steals from – and kills – everyone else. So what is justice? Well, it’s not stealing and killing!

This is not just a source for Jefferson to steal from; it is perhaps the first articulation of the idea that every human being (at least, every white man) is entitled to certain inalienable rights – what are often called the natural rights.

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This introduces the idea that individual freedom (to live, to have health, etc.) is a key part of justice.

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Locke was forward-thinking enough that he was exiled to the Netherlands at one point. But he was also a creature of his time, and concluded that monarchy could be part of a just system of government, as long as the people “consented” by, well, not immigrating.

This is in some sense pretty backwards, since in 1600s Europe, emigration isn’t exactly easy. But it is also pretty forward looking – his most immediate British predecessor, Hobbes, basically argued that Kings were great. So Locke is one of the first to argue that what the people want (another aspect of what we now think of as individual freedom) is important.

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It is important to point out that Locke’s approach is what we’d now call a negative approach to rights: the system (the state, in this case) is obligated to protect you, but it isn’t obliged to give you anything.

Coming from the late 1600s, this is not a crazy perspective – most governments don’t even do these things. For Locke to say “the King should not take your stuff” is pretty radical; to have said “and it should also give you health care” would have also made him the inventor of science fiction. And the landed aristocracy are typically fans!

(Also, apologies to my typographically-sensitive friends; kerning of italicized fonts in Libre Office is poor and I got lazy around here about manually fixing it.)

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But this is where Locke starts to fall down to modern ears: if you’re not one of the landed aristocracy; if you’ve got no stuff for the King to take, Locke isn’t doing much for you. And it turns out there are a whole lot of people in 1600s England without much stuff to take.
So let’s fast forward 150+ years.

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You all know who Marx is; probably many of you have even been called Marxists at one point or another!

Marx is complicated, and his historical legacy even more so. Let’s put most of that aside for today, and focus on one particular idea we’ve inherited from Marx.


For our purposes, out of all of Marx, we can focus on the key insight that people other than the propertied class can have needs.(This is not really his insight; but he popularizes it.) I

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Having recognized that humans have needs, Marx then goes on to propose that, in a just society, the individual might not be the only one who has a responsibility to provide those needs – the state, at least when we reach a “higher phase” of economic and moral development, should also provide.

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This sounds pretty great on paper, but it is important to grok that Marx argues that his perfect system will happen only when we’ve reached such a high level of economic development that no one will need to work, so everyone will work only on what they love. In other words, he ignores the scarcity we face in the real world. He also ignores inequality – since the revolution will have washed away all starting differences. Obviously, taken to this extreme, this has led to a lot of bad outcomes in the world – which is what gives “marxism” its bad name.

But it is also important to realize that this is better than Locke (who isn’t particularly concerned with inequality), and in practice the idea (properly moderated!) has led to the modern social welfare state. So it is a useful tool in the modern philosophical toolkit.

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Fast forward again, another 100 years. Our scene moves down the street, to Harvard. Perhaps the two most important works of political philosophy of the 20th century are written and published within four years of each other, further up Mass Avenue from MIT.

John Rawls publishes his Theory of Justice in 1971; Robert Nozick follows up with his Anarchy, the State, and Utopia in 1974.

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Rawls and Nozick, and their most famous books, differ radically in what they think of as justice, and what systems they think lead to the greatest justice. (Nozick is the libertarian’s libertarian; Rawls more of a welfare-state type.) Their systems, and the differences between them, are out of our scope today (though both are fascinating!).

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However, both agree, in their ways, that any theory of a just world must grapple with the core fact that modern societies have a variety of different people, with different skills, interests, backgrounds, etc. (This shouldn’t be surprising, given that both were writing in the aftermath of the 60s, which had made so clear to many that our societies were pretty deeply unjust to a lot of people.)

This marks the beginning of the modern age of political philosophy: Locke didn’t care much about differences between people; Marx assumed it away. Nozick and Rawls can be said, effectively, to mark the point when political philosophy starts taking difference seriously.

But that was 40 years ago – what has happened since then?

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So that brings us to the 1990s, and also to 2016. (If you haven’t already figured it out, political philosophy tends to move pretty slowly.)

The new-ish hotness in political philosophy is something called capability theory. The first work is put forward by Amartya Sen, an Indian economist working with (among others) the United Nations on how to focus their development work. Martha Nussbaum then picked up the ball, putting in a great deal of work to systematize it.

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When Sen starts working on what became capability theory, he’s a development economist trying to help understand how to help improve the lives of his fellow Indian citizens. And he’s worried that a huge focus on GDP is not leading to very good outcomes. He turns to political theory, and it doesn’t help him: it is focused on very abstract systems. John Locke saying “life, liberty, property” and “sometimes monarchs are OK” doesn’t help him target the UN’s investment dollars.

So his question becomes: how do I create a theory of What is Just that actually helps guide decisions in the real world? Capability theory, in other words, is ultimately pragmatic.

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To put it another way, you can think of the capability approach as an attempt to figure out what effective freedom is: how do we take freedom out of textbooks and into something that really empowers people?

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One of the key flaws for Sen of existing theories was that they talked about giving people at worst, negative rights (protecting their rights to retain property they didn’t have) and at best, giving them resources (giving them things or training they couldn’t take advantage of). He found this unconvincing, because in his experience India’s constitution gave all citizens those formal rights, but often denied them those rights in practice, through poverty, gender discrimination, caste discrimination, etc.

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And so from this observation we have the name of the approach: it focuses on what, pragmatically, people need to be capable of acting freely.

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Some examples may be helpful here to explain what Sen and Nussbaum are getting at.

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For example, if all men and women have the same formal access to education, but women get fewer job callbacks after college than men with identical resumes, or men refuse to care for children and aging parents, then it seems unlikely that we can really claim to have a just society.

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Somalia, circa 1995-2000, was, on the face of it, a libertarian paradise: it gave you a lot of freedom to start businesses! No minimum wage, no EPA.

But it turns out you need more than “freedom from government interference” to run a business: you have to have a lot of other infrastructure as well. (Remember, here, Locke’s “negative” rights: government not stopping you, v. government supporting you.)

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These examples suggest that answering political philosopher question #1 (“what is justice?”) requires more than just measuring access to resources. What you want to know to understand whether a system is just, you have to measure whether all people have the opportunity to get to the important goals.

In other words, do they have the capability to act?

This is the core insight that the capabilities approach is grounded in: it is helpful, but not enough, to say “someone has the natural rights” (Locke) or “some time in the future everyone will have the same opportunity” (Marx).

(Is any of this starting to ring a bell?)

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Capability approach is, again, very pragmatic, and comes from a background of trying to allocate scarce development resources in the real world, rather than a philosopher’s cozy university office. So if you’re trying to answer the political philosopher’s question (“what system”), you need to pick and choose a few capabilities to focus on, and figure out what system will support those capabilities.

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Again, an example might be helpful here to show how picking the right things to focus on can be important when you’re aiming to build a system that supports human capability.


If you focus on only one dimension, you’re going to get things confused. When Sen was beginning his work, the development community tended to focus exclusively on GDP. Comparing the Phillippines and South Africa by this number would have told you to focus your efforts on the Philippines.


But  one of the most basic requirements to effective freedom – to supporting people’s capability to act – is being alive! When we look at it through that lens, we pretty quickly see that South Africa is worth more energy. It’s critical to look through that broader lens to figure out whether your work is actually building human freedom.

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This is, perhaps, the most contentious area of capability theory – it’s where writing is being done across a variety of disciplines, including economics, political philosophy, sociology, and development. This writing has split into two main areas: the pragmatists, who just want to figure out useful tools that help them improve the world, and the theorists, who want to ground the theory in philosophy (sometimes as far back as Aristotle).

This is a great place to raise Martha Nussbaum again: she’s done the most to bring theoretical rigor to the capability approach. (Some people call Sen’s work the “capability approach”, to show that it is just a way of thinking about the problem; and Nussbaum’s work “capability theory”, to show that it is a more rigorous approach.)


I have bad news: there is no one way of doing this. Some approaches can include:

  • Local nuance: What is valued and important in one culture may not be in another; or different obstacles may exist in different places and times. Nussbaum’s work particularly focuses on this, interviewing people both to find criteria that are particularly relevant to them, but also to attempt to identify global values.
  • Democracy: Some of Sen’s early research showed that democracies were better at getting people food than non-democracies of similar levels of economic development, leading to avoidance of famines. So “what people prioritize based on their votes” is a legitimate way to understand the right capabilities to focus on.
  • Data: you’ll almost never see a table like the one I just showed you in most political philosophy! The capability approach embraces the use of data to supplement our intuitions and research.
  • Old-fashioned philosophizing: it can be perfectly appropriate to sit down, as Richard did, and noodle over our problems. I tend to think that this is particularly important when we’re identifying future capabilities – which is of course our focus here.

Each of these can be seen as overlapping ways of identifying the best issues to identify – all of them will be useful and valid in different domains.

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Shared theme of that last slide? Thinking primarily about people. Things are always a means to an end in the capability approach – you might still want to measure them as an important stepping stone to helping people (like GDP!) but they’re never why you do something.

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There is no one right way to pick which capabilities to focus on, which drives lots of philosophers mad. We’ll get into this in more detail soon – when I talk about applying this to software.

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Probably the bottom line: if you want to know how to get to a more just system, you want to ask about the capabilitiesof the humans who are participating in that system. Freedom is likely to be one of the top things people want – but it’s a means, not the end.

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So now we’ve come to the end of the philosophy lecture. What does this mean for those of us who care about software?

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So, again, what do political philosophers care about?

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The FSF’s four freedoms try to do the right thing and help build a more just world.

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If you don’t have some combination of time, money, or programming skills, it isn’t entirely clear the four freedoms do a lot for you.free-as-in-what- - 48

The four freedoms are negative rights: things no one can take away from you. And that has been terrific for our elites: Locke’s landed aristocracy is our Software as a Service provider, glad the King can’t take away his right to run MySQL. But maybe not so much for most human beings.
free-as-in-what- - 49This brings us to our second question – what system?

Inspired by the capability approach, what I would argue that we need is a focus on effective freedom. And that will need not just a change to our focus, but to our systems as well – we need to be pragmatic and inclusive.

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So let me offer four suggestions for free software inspired by the capability approach.

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We need to start by having empathy for all our users, since our goal should be software that liberates all people.

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Like the bureaucrat who increases GDP while his people die young, if we write billions of lines of code, but people are not empowered, we’ve failed. Empathy for others will help us remember that.

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Sen, Nussbaum, and the capability approach also remind us that to effectively provide freedom to people we need to draw opinions and information from the broadest possible number of people. That can simply take the form of going and listening regularly to why your friends like the proprietary software they use, or ideally listening to people who aren’t like you about why they don’t use free software. Or it can take the form of surveys or even data-driven research. But it must start with listening to others. Scratching our own itch is not enough if we want to claim we’re providing freedom.

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Or to put it another way: our communities need to be as empowering as our licenses. There are lots of great talks this weekend on how to do that – you should go to them, and we should treat that as philosophically as important as our licenses.


I think it is important to point out that I think the FSF is doing a lot of great work in this area – this is the most diversity I’ve seen at Libre Planet, and the new priorities list covers a lot of great ground here.

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But it is also a bad sign that at the new “Open Source and Feelings” conference, which is specifically aimed at building a more diverse FOSS movement, they chose to use the apolitical “open” rather than “free”. That suggests the FSF and free software more generally still have a lot of work to do to shed their reputation as being dogmatic and unwelcoming.

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Which brings me to #2: just as we have to listen to others, we have to be self-critical about our own shortcomings, in order to grapple with the broad range of interests those users might have.

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At the begining of this talk, I talked about my last visit to Libre Planet, and how hard it was to have a conversation about the disempowerment I felt when Libre Office crashed. The assumption of the very well-intentioned young man I was talking to was that of course I was more free when I had access to code. And in a very real way, that wasn’t actually true – proprietary software that didn’t crash was actually more empowering to me than libre software that did crash. And this isn’t just about crashing/not-crashing.

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Ed Snowden reminded us this morning that Android is freely-licensed, but that doesn’t mean it gives them the capability to live a secure life.

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Again, here, FSF has always done some of the right thing! You all recognize this quote: it’s from freedom zero. We often take pride in this, and we should!

But we also often say “we care about users” but only test what the license is. I’ve never seen someone say “this is not free, because it is impossible to use” – it is too easy, and too frequent, to say “well, the license says you can run the program as you wish, so it passes freedom zero”. We should treat that as a failure to be humble about.

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Humility means admitting our current. unidimensional systems aren’t great at empowering people. The sooner we admit that freedom is complex, and goes beyond licensing, the quicker we can build better systems.

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The third theme of advice I’d give is to think about impact. Again, this stems from the fundamental pragmatism of the capability approach. A philosophy that is internally consistent, but doesn’t make a difference for people, is not a useful philosophy. We need to take that message to heart.

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Mako Hill’s quantitative research has shown us that libre code doesn’t necessarily mean quality code, or sucessful projects. If we want to impact users, we have to understand why our core development tools are no longer best-in-class, and fix them, or develop new models to replace them.

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We built CVS, SVN, and git, and we used those tools to build some of the most widely-used pieces of software on earth. But it took the ease of use of github to make this accessible to millions of developers.

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Netsplit.de is a search engine for IRC services. Even if both of these numbers are off by a factor of two (say, because of private networks missing from the IRC count, and if Slack is inflating user counts), it still suggests Slack will have more users than IRC this year. We need to think about why that is, and why free software like IRC hasn’t had the impact we’d like it to.

If we’re serious about spreading freedom, this sort of “post-mortem” of our successes and failures is not optional – it is a mandatory part of our commitment to freedom.

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I’ve mentioned that democracy is one way of choosing what capabilities to focus on, and is typically presumed in serious analyses of the capability approach – the mix of human empowerment and (in Sen’s analysis) better pragmatic impact make it a no-brainer.

A free software focused on impact could make free licensing a similar no-brainer in the software world.

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Dan Gillmor told us this morning that “I came for the technical excellence and stayed for the freedom”: as both he and Edward Snowden said this morning, we have to have broaden our definition of technical excellence to include usability and pragmatic empowerment. When we do that, our system – the underlying technology of freedom – can lead to real change.

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This is the last, and hardest, takeaway I’ll have for the day.

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We’ve learned from the capability approach that freedom is nuanced, complex, and human-focused. The four freedoms, while are brief, straightforward, and easy to apply, but those may not be virtues if our goal is to increase user freedom.

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As I’ve said a few times, the four freedoms are like telling you the king can’t take your property: it’s not a bad thing, but it also isn’t very helpful if you don’t have any property.

We need to re-interpret “run the program as you wish” in a more positive light, expanding our definitions to speak to the concerns about usability and security that users have.

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The capability approach provides us with questions – where do we focus? – but not answers. So it suggests we need to go past licensing, but doesn’t say where those other areas of focus might be. Here are some suggestions for what directions we might evolve free software in.

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Learning from Martha Nussbaum and usability researchers, we could work with the next generation of software users to understand what they want, need, and deserve from effective software freedom.

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We could learn from other organizations, like UNICEF, who have built design and development principles. The graphic here is from UNICEF’s design principles, where they talk about how they will build software that improves freedom for their audience.

It includes talk about source code – as part of a coherent whole of ten principles, not an end in and of itself.

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Many parts of our community (including FSF!) have adopted codes of conduct or similar policies. We could draw on the consistent themes in these documents to identify key values that should take their place alongside the four freedoms.

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Finally, we can vote with our code: we should be contributing where we feel we can have the most impact on user freedom, not just code freedom. That is a way of giving our impact: we can give our time only to projects that empower all users. In my ideal world, you come away determined to focus on projects that empower all people, not just programmers.

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Ultimately, this is my vision, and why I remain involved in free software – I want to see people who are liberated. I hope after this talk you all understand why, and are motivated to help it happen.
Thanks for listening.

Further reading:

Image sources and licenses (deck itself is CC BY-SA 4.0):



The All Writs Act on Wikipedia v. legal academic reach by Blog – Luis Villa: Open Law and Strategy posted

Legal friends! The world needs you. Here’s the graph of readership of All Writs Act on Wikipedia:

Pageviews Analysis-All Writs ActThat’s 45,035 reads yesterday (by humans, not bots).((Big thanks to the tech team for figuring out how to differentiate – not something we could do until fairly recently, at least for public stats!)) That would put it 5th on SSRN’s all-time legal download list, right between William Landes and Cass Sunstein. Not bad company! Or in other words: anything you fix in this article in the next day or two is likely to be the most-read thing you ever write.

The article has been edited 39 times since the Apple letter was published. So it is a lot better than two days ago. But it could still use a lot of love – history, applicability outside of the Apple situation, etc. Contribute!

Since lawyers are particularly concerned about citation, it is worth mentioning that the editing experience especially when adding citations has become vastly better in the past year – in most cases for articles on SSRN, simply dropping the link into our citation editor will get you a fully-fleshed out and formatted citation (with thanks to our friends at Zotero!)


Reinventing FOSS user experiences: a bibliography by Blog – Luis Villa: Open Law and Strategy posted

There is a small genre of posts around re-inventing the interfaces of popular open source software; I thought I’d collect some of them for future reference:



The first two (Drupal, WordPress) are particularly strong examples of the genre because they directly grapple with the difficulty of change for open source projects. I’m sure that early Firefox and VE discussions also did that, but I can’t find them easily – pointers welcome.

Other suggestions welcome in comments.

Software that liberates people: feels about FSF@30 and OSFeels@1 by Blog – Luis Villa: Open Law and Strategy posted

tl;dr: I want to liberate people; software is a (critical) tool to that end. There is a conference this weekend that understands that, but I worry it isn’t FSF’s.

Feelings are facts, by wrote, CC BY 2.0

This morning, social network chatter reminded me of FSF‘s 30th birthday celebration. These travel messages were from friends who I have a great deal of love and respect for, and represent a movement to which I essentially owe my adult life.

Despite that, I had lots of mixed feels about the event. I had a hard time capturing why, though.

While I was still processing these feelings, late tonight, Twitter reminded me of a new conference also going on this weekend, appropriately called Open Source and Feelings. (I badly wanted to submit a talk for it, but a prior commitment kept me from both it and FSF@30.)

I saw the OSFeels agenda for the first time tonight. It includes:

  • Design and empathy (learning to build open software that empowers all users, not just the technically sophisticated)
  • Inclusive development (multiple talks about this, including non-English, family, and people of color) (so that the whole planet can access, and participate in developing, open software)
  • Documentation (so that users understand open software)
  • Communications skills (so that people feel welcome and engaged to help develop open software)

This is an agenda focused on liberating human beings by developing software that serves their needs, and engaging them in the creation of that software. That is incredibly exciting. I’ve long thought (following Sen and Nussbaum’s capability approach) that it is not sufficient to free people; they must be empowered to actually enjoy the benefits of that freedom. This is a conference that seems to get that, and I can’t wait to go (and hopefully speak!) next year.

The Free Software Foundation event’s agenda:

  • licenses
  • crypto
  • boot firmware
  • federation

These are important topics. But there is clearly a difference in focus here — technology first, not people. No mention of community, or of design.

This difference in focus is where this morning’s conflicted feels came from. On the one hand, I support FSF, because they’ve done an incredible amount to make the world a better place. (OSFeels can take open development for granted precisely because FSF fought so many battles about source code.) But precisely because I support FSF, I’d challenge it, in the next 15 years, to become more clearly and forcefully dedicated to liberating people. In this world, FSF would talk about design, accessibility, and inclusion as much as licensing, and talk about community-building protocols as much as communication protocols. This is not impossible: LibrePlanet had at least some people-focused talks (e.g.), and inclusion and accessibility are a genuine concern of staff, even if they didn’t rise to today’s agenda. But it would still be a big change, because at the deepest level, it would require FSF to see source code as just one of many requirements for freedom, rather than “the point of free software“.

At the same time, OSFeels is clearly filled with people who see the world through a broad, thoughtful ethical lens. It is a sad sign, both for FSF and how it is perceived, that such a group uses the deliberately apolitical language of openness rather than the language of a (hopefully) aligned ethical movement — free software. I’ll look forward to the day (maybe FSF’s 45th (or 31st!) birthday) that both groups can speak and work together about their real shared concern: software that liberates people. I’d certainly have no conflicted feelings about signing up for a conference on that :)

And like that... he is gone by Three Years of Hell to Become the Devil posted 01:09, Saturday, 26 August

So that's it. RIP Three Years of Hell, June 2, 2003 to August 25, 2006. After all these words, there are only a few things left to say. Two sites, the Imbroglio and the Volokh Conspiracy, have given me a...

And for those without blogs... by Three Years of Hell to Become the Devil posted 00:32, Saturday, 26 August

Dear Wormwood: Our correspondence over these last few years, put together, may be the single longest thing I've ever written. For old time's sake, however, I hope you'll allow me to give you one last list, a few things I...

Advice for 1Ls Starting a Blog: A Much Shorter Part II by Three Years of Hell to Become the Devil posted 22:45, Friday, 25 August

Dear Wormwood: I promised you two letters that might help your friend Scrimgouge in starting a 1L blog. The first letter focused mostly upon matters that any blogger, legal or otherwise, might find useful, be they technical or stylistic. But...

Welcome to the Continuum! or Passing the Torch by Three Years of Hell to Become the Devil posted 22:21, Friday, 25 August

Say hello to Luis Villa, a 1L at Columbia law school. He's another coder turned lawyer, and his musings on code and law strike a cord. If there's any other Columbia Law School bloggers who would like to tie their...

Down to the Wire by Three Years of Hell to Become the Devil posted 22:17, Friday, 25 August

Right... self-imposed deadline of tonight to finish this thing off, and still four or five posts that I need to complete. Right now all that quick typing in exams is coming in handy!...

Advice for 1Ls Considering a Blog: A Very Long Part One by Three Years of Hell to Become the Devil posted 00:51, Friday, 25 August

Dear Wormwood: Who is this Scrimgouge whose email address you've forwarded me? It's certainly very flattering that he's asking you to ask me for advice on starting a law school blog. Nevertheless, there's no good reason for him to ask...

Could Be Worse by Three Years of Hell to Become the Devil posted 21:01, Thursday, 24 August

A friend of mine just gave me a "post bar exam gift": a copy of Ichisada Miyazaki's China's Examination Hell: The Civil Service Examinations of Imperial China. From the first page: Competition for a chance to take the civil service...

Grumpy Old Man Alert: "In My Day, We Didn't Have the 'SONI' System Like You Youngsters. We Read Two Hundred Spam Emails From Every Society Imaginable, And We LIKED It." by Three Years of Hell to Become the Devil posted 16:36, Thursday, 24 August

Forwarded from a current Columbia Law Student, from one of Student Services' fantastic new staff members: We have put in place a new system, the Student Organization News and Information (SONI) System, which allows student organizations and journals to email...

New York Pungent by Three Years of Hell to Become the Devil posted 02:33, Thursday, 24 August

Strange circumstances conspire to bring me back to New York just before the blog ends. I drove through Jersey late last night. A blind man could smell his way up the Jersey Turnpike. My memory of New York will be...

The Beginning of the End by Three Years of Hell to Become the Devil posted 07:07, Friday, 18 August

Dear Wormwood: The bar exam is over. I've moved away from D.C. to Another State. [1] And today the last signs of law-student living left me: my free Lexis account no longer works. I feel I shall soon have withdrawal...

An Interesting Paradox by Three Years of Hell to Become the Devil posted 06:12, Friday, 18 August

Over at the Republic of T, Terrance has been chronicling battles in Wisconsin and Virginia over the interpretation of either Defense of Marriage amendments or alterations thereto. The argument is wearily familiar: that the text of the legislation is overbroad,...

It's a sad day when you find a lawyer asking why evidence of bias is important by Three Years of Hell to Become the Devil posted 16:06, Monday, 14 August

Another "oops" in Lebanese photography, this time from the AP. Fact-checking seems to have gone out of style these days. Worse than journalists, credibility seems on shaky ground with lefty law professors. The ever-dependable for the lunatic fringe view Brian...

Photoshopping Nonscandal by Three Years of Hell to Become the Devil posted 21:20, Friday, 11 August

I guess the guys at DailyKos are a bit giddy after their victory over Kiss Me Joe, because they're hawking the story of a photoshopping scandal. According to the Kossacks, the GOP decided to paint a Hitler moustache on Howard...

Why the New York Times Can't Prepare You For the Bar Exam (or your CrimLaw Final) by Three Years of Hell to Become the Devil posted 16:08, Friday, 11 August

Compare and contrast this New York Times editorial on "castle doctrine" laws with this fisking. As those who just took the New York bar will recall, New York requires someone in fear of their life to make reasonable efforts to...

Blood in the Water by Three Years of Hell to Become the Devil posted 13:53, Monday, 07 August

After forcing Reuters to pull a third rate forgery from its video archives, bloggers are having a field day finding more suspicious photos from the Israeli/Hezbollah conflict. My guess is that many will turn out to be perfectly valid images,...


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