prior probability

Let’s get real … The stars & bars are no more inclusive than ISIS’s black flag is.Credit for “Wonder Bree”: Rebecca Cohen (via tumblr).

Overall, how great is the Supreme Court in protecting our rights? On balance, does the Court create more rights than it taketh away? For our part, we concur with the excellent David Post (via The Volokh Conspiracy) that “a Supreme Court that has the power to strike down state laws prohibiting marriage between persons of the same sex is also (and necessarily) a Supreme Court that has the power to, say, strike down state laws allowing marriages between persons of the same sex …” In other words: judicial power is a double-edged sword. A court presumptuous enough to create new rights is also powerful enough to take away our rights. Continue reading →

We are not big fans of Alice Goffman’s best-selling book On the run, since we think most of the stories in her book are pure fiction at best. (We have even gone as far as to suggest that “Goffman is the new Margaret Mead,” for accepting uncritically everything she was told by her research subjects.) But did Alice Goffman commit a major crime while she was researching and writing the dissertation on which her book is based? Steven Lubet, a grumpy old law professor at Northwestern, thinks so. He has accused Professor Goffman of the inchoate crime of conspiracy to commit murder under Pennsylvania law. By her own admission, Goffman wanted revenge for the killing of one of her research subjects and close friends, a young man she identifies as “Chuck.” According to Professor Goffman, Chuck was shot in the head by a rival gang member. A few days after his funeral, Goffman states that “the hunt was on to find the man who had killed Chuck.” She describes the plot for revenge thus:  Continue reading →

British researchers Patrick Sharman and Alatair J. Wilson argue that racehorses are indeed getting faster. (Their research on racehorse speeds is available in this scientific paper, the source of the table appearing below. By the way, our mentor Jorge Cordova would have loved this paper!) On a related note, notice the pdf version of Sharman & Wilson’s racehorse paper is only four and one-half pages long, including footnotes. Law review articles, by contrast, tend to be getting longer and more tedious to read–with some notable exceptions. So, why can’t law review articles–whether they be doctrinal, empirical, or theoretical–be more concise and to the point? (Hat tip: Tyler Cowen.)

My colleague and friend Jorge Cordova recently went to a better place. Jorge and I both taught law at the Pontifical Catholic University School of Law in Ponce, P.R. for many years. (Before UCF, I started my teaching career in Ponce, while Jorge finished his illustrious legal career there.) Most of the faculty in Ponce–with some notable exceptions–were legal formalists in spirit. But Jorge and I were both interested in the strategic dimensions of law–how laws and legal loopholes are manipulated by legal actors to get the results they want. (Perhaps this interest in legal realism was a function of our legal education: Jorge studied law at Harvard; I studied at Yale.) Moreover, Jorge generously and graciously read and commented on many of my works in progress, shared his law school exams with me, and confided his concerns about the law school administration with me on many occasions. During my tenure in Ponce, of which I have so many fond memories, I ended up spending countless hours in Jorge’s company in his law school office, which was right next door to mine. (We also shared many lunches together at our favorite local restaurant “La Casa del Chef.”) His office was a treasure trove of mementos designed to make you feel at home. I can still remember his big, blue reclining chair, the over-sized picture of his sailboat, and various odds and ends from his Washington, D.C. days. His door was always open–both literally as well as figuratively–unless he had some juicy gossip to share! Suffice it to say that Jorge was so much fun to talk to–always in good spirits and always ready with a good story to tell. In fact, I admired Jorge as an academic role model, and I made good use of his sound counsel on many occasions. I will always remember him …

Michelle N. Meyer and Christopher Chabris, professors at Union Graduate College in Schenectady, New York, recently published a thought-provoking essay in the Sunday Times on the ethics of nonconsensual “A/B testing” like the Facebook mood contagion experiment, the inconclusive results of which were published in a scientific journal last year. In brief, Professors Meyer and Chabris begin their short essay by posing a rhetorical question: “Can it ever be ethical for companies or governments to experiment on their employees, customers or citizens without their consent?” Most people (ourselves included) would answer “no”–without consent, such experiments cannot be ethical–but the authors challenge this reasoning, arguing persuasively that it is based is on a “moral illusion.” Professors Meyer and Chabris argue:  Continue reading →