Law Reviews, Again

BooksThe perennial topic of the foibles of legal academic publishing is back in the news, thanks to a recent “Sidebar” column in the New York Times by reporter Adam Liptak. Much of the article rehashes the standard complaints, going all the way back to Fred Rodell’s 1936 jeremiad against law reviews. The news hook is the publication of three recent articles — in law reviews, ironically — that demonstrate that (1) law reviews are biased in favor of home-school professors; (2) the Supreme Court is not citing them as much as it used to; and (3) almost no one, not even law professors, is happy with the current system.

Liptak’s article has unleashed a flurry of mostly critical responses. (See: Baude, Kerr, Leiter, Bodie, Chin, Wasserman, Solove, Magliocca, Pasquale.) I have just two points to add.

1. The Rumsfeldian Zen Acceptance of Law Reviews. One of the most common complaints about legal scholarship, from nearly all quarters, is that it is not peer-reviewed prior to publication. Several of the bloggers I link to above do a good job of arguing why peer review is not an unalloyed good and student-run editorial boards are not all bad. Some even seem to argue that, for legal scholarship at least, forgoing peer review might on balance be better. And I’m sure there are non-legal academics who believe that publishing in non-peer-reviewed law journals is on a par with publishing with a vanity press.

I find it difficult to get excited about either of those arguments.

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What the Heck Is Drawbridge?

scaredy catYou won’t find out from this New York Times front-page story from yesterday, which is disappointingly long on alarmism but scarce on details, a phenomenon all too frequent in privacy reporting. In the third sentence — immediately after anthropomorphizing smartphones — the story tells us that “advertisers, and tech companies like Google and Facebook, are finding new, sophisticated ways to track people on their phones and reach them with individualized, hypertargeted ads.” Boy, that sounds bad — exactly what horrible new thing have they come up with now?

The third paragraph tells us only what privacy advocates fear. The fourth mentions the National Security Agency. The fifth quotes privacy scholar Jennifer King saying that consumers don’t understand ad tracking.

The sixth paragraph finally gives us a specific example of the “new, sophisticated ways” advertisers and tech companies are “track[ing] people on their phones”: Drawbridge. What does Drawbridge do? It’s “figured out how to follow people without cookies, and to determine that a cellphone, work computer, home computer and tablet belong to the same person, even if the devices are in no way connected.” But this doesn’t tell us much. There are more and less innocuous ways to accomplish the goal of tracking users across devices. On the innocent end of the scale, a website could make you sign into an account, which would allow it to tell who you are, no matter what computer you use. On the malevolent end of the scale, it could hack into your devices and access personal information that is then linked to your activity. The key question is, how is Drawbridge getting the data it is using to track users, and what is in that data?

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I’m So Angry!

grumpycatAmericans are politically polarized. The current impasse in Washington is proof of that. But what exactly has gone wrong?

There’s a widely espoused theory that the Internet is partly responsible. According to this theory, put forward in its most sophisticated form by Cass Sunstein, the Internet allows individuals of like mind who are geographically dispersed to get together, and indeed to associate with no one else. As Robert Reich recently put it, “we increasingly live in hermetically sealed ideological zones that are almost immune to compromise or nuance. Internet algorithms and the proliferation of media have let us surround ourselves with opinions that confirm our biases.”

Social science research has demonstrated that this sort of opinion isolation has two negative effects; first, people who associate only with like-minded individuals become more extreme in their views. Second, it warps their definition of deviance, so that when they encounter someone who thinks differently — even with moderate opposing views — they perceive that person as beyond the pale of acceptable opinion. Nichification is therefore the root cause of our current problems.

I don’t buy it.

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