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Legal Mind Hacks: Choose Metaphors Wisely—One Word Matters More Than You Think #legalmindhacks post image

As a PhD student one of my everyday tasks was to read and summarize social and cognitive psychology literature in preparation for my classes. Since I had already practiced as an attorney at the time, I was constantly noting research with clear applications to the law and legal practice to which very few people seem to be paying attention.

You will find many of us already implement some of these techniques in our practice, either subconsciously, or because we have found them anecdotally effective. As a quant geek, I could care less about anecdotal evidence. I want numbers, and based on that, I want to make sure I’m consistently using every trick in the book to win my cases.

In an effort to improve my own appellate practice, and because I miss Legal Geekery, I’m starting a new column I’m dubbing Psychology for Lawyers (#legalmindhacks if you want to discuss on Twitter/Facebook) where I will be summarizing useful psychology literature and opining about its applications to the law.

Today’s installment is Choose Metaphors Wisely—One Word Matters More Than You Think via researchers at Stanford.

Summary: A seemingly innocuous change to metaphor may effect you audience’s solution to a problem.

In one of these experiments, the researchers changed only one word near the beginning of a fake crime report: participants were either shown a report beginning with “Crime is a beast ravaging the city of Addison” or one that began with “Crime is a virus ravaging the city of Addison.”

In generating their predictions for the experiment, Paul Thibodeau and Lera Boroditsky asked a different set of participants how they would respond to a literal beast problem or a literal virus problem. Participants imagined organized investigation and development of social programs to address the virus epidemic. For the beast problem, they suggested hunting down the beast and caging or killing it.

It turns out peoples’ responses to the literal questions were similar when the literal nouns were used as metaphors to describe crime. People who read crime was beast were more likely to suggest law enforcement and punishment whereas those who read crime was a virus were more likely to suggest social reform.

Specific application: If you are a defense attorney, crime might be a “virus.” If you’re a prosecutor, it’s definitely a “beast.”

General application: Use metaphor to help influence, but consider Amazon’s Mechanical Turk to test your metaphor.

The researchers used Mechanical Turk to form their predictions about this experiment, and you should consider it for testing as well. It’s very cheap to hire a random (or not random) sample of 25 to replicate what the researchers asked: “Imagine a [metaphor] [gerund] a city and then describe the best way to solve that problem.”

This study indicates the responses to that question are going to frame how they view the literal concept you’re referencing as metaphor.

Criticism: No control condition where facts were present in the absence of metaphor.

This paper is sometimes cited as evidence that metaphor matters more than facts. I don’t know if that’s appropriate given the lack of a control condition where people were presented with the same facts with the lack of a metaphor (e.g., “Crime is a problem in our city.” as a prime). Certainly the metaphor effects affect, but to what extent does the presence or absence of metaphor influence a judge’s or jury’s feelings toward the subject? I have a feeling it does indeed, but I don’t feel comfortable making that statement based only on this paper.

Header photo provided courtesy of Camilo Rueda López (some rights reserved)

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Fastcase Public Links to Cases on Haiku Decisis Are Here! post image

Fastcase Public Links to Cases on Haiku Decisis Are Here!

It was always my intention to include links to the cases referenced on Haiku Decisis, and finally that day is today.

We introduced a feature at Fastcase about two months ago allowing any Fastcase subscriber to generate a public link to any integrated document (cases, statutes, regs, etc.) and make it available to anyone, regardless of whether they have a Fastcase account.

As of yesterday, we finished the API that will allow people to generate a public link from any known citation to the case. That allowed me to write some code to chug through the Haiku Decisis database and tag the cases with links to the Fastcase public link URL.

I hope people find it as amusing as I do to see how these haiku are actually written in the context of the case.

Finally, we’ve amassed enough votes that I can start to write a ranking algorithm to weight display of the haiku (meaning you’ll see more good than bad eventually). I’ve also got a query ready to display the top haiku — just need to write a front end for it. So that’ll be coming soon.

As always, feel free to pass along your feature requests, bug reports, and comments.

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Haikus Straight from SCOTUS post image

Haikus Straight from SCOTUS

Announcing Haiku Decisis.

A few weeks ago, for reasons I still don’t completely understand, I began to wonder how often the Supreme Court inadvertently creates a haiku in its opinions. These are the kinds of conversations we tend to have around the Fastcase offices.

Sometime shortly thereafter I began researching how difficult it would be to write an algorithm to identify the number of syllables in a word. Happily, a gentleman named Jonathan Feinberg — a much better coder than I — had already written and shared some code on GitHub that allowed me to write an application in relatively short order to count syllables of sentences (and ultimately to identify full-thought haikus) inadvertently created by Supreme Court Justices.

I asked the developers at Fastcase to generate for me a list of cases going back to 1 U.S. 1, which I parsed and used to populate a database. Once the database was constructed I had quite a bit of data cleaning to do (it turns out the algorithm is pretty bad at handling rogue punctuation). Nonetheless, the results were amusing.

I decided to use the haikus as a framework to learn Laravel — I’ve never really done any actual web coding before. Haiku Decisis sort of took form on its own as a sort of Hot or Not-cum-Reddit for Judicial opinions. Upvote the cases you like; downvote the cases you don’t like.

I like this system for a few reasons: First, I’m greatly amused by thinking about how much time law student nerds are going to spend in class voting on haikus from the cases they’re studying. It’s incredibly easy to get caught up voting on haikus (at least for me) and trying to find the real stand-out quotes. Second, the idea of reducing beautiful writing from some of the greatest minds of the past few centuries to out-of-context poems that laypeople can dismissively vote on is also greatly amusing to me. Finally, and most importantly, these haikus are easily accessible to anyone.

We recently pushed out our new “Public Link” feature at Fastcase; this is going to allow me to link all of the cases giving rise to these haikus to anyone regardless of whether they have Fastcase access. Even having studied the Court quite a lot, I have on a great number of occasions seen one of these haikus and grown incredibly curious about the context. When Fastcase builds the Public Link API for me to incorporate the links into Haiku Decisis, I’m hopeful this will enable some curious laypeople to want to learn a bit more about the judiciary.

I’ll be monitoring this thread for comments, complaints, and suggestions. I’m happy to take feature requests as well since this is still a programming exercise for me. I’d personally very much like a hidden-by-default comments section added to each haiku for people to discuss the haiku or the case. I’d also like to somehow incorporate the haiku summaries of SCOTUS opinions written by my fellow law nerd colleagues over at the Supreme Court Haiku Reporter.

If you like the app do me a favor and share it and follow @haikudecisis on Twitter.

Have fun and let me know your favorite haikus — I’m keeping tabs on my own favorites.

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Second Circuit Denies Rehearing En Banc for Aereo Plaintiffs post image

Second Circuit Denies Rehearing En Banc for Aereo Plaintiffs

Last summer I wrote about Aereo’s journey through the federal courts. At that time, the plaintiffs were seeking to enjoin Aereo from providing their broadcast television content to subscribers via the internet at the district court level. On July 16, the Second Circuit made clear that it had no intent of overturning the Cablevision case, discussed on LG previously, by denying en banc reargument.

Consistent with our previous discussion — and incidentally the district court’s opinion and the standard of review — the Court of Appeals for the Second Circuit believed that the crux of the issue revolved around the second section of the Transmit clause in the Copyright Act.

Specifically, the Court held, there are certain factors discussed within Cablevision that must be considered in deciding whether or not a transmission is public and therefore violative of the Copyright Act.

Based on the Court’s opinion, uniqueness of the signal seems requisite in a case like this. Because Aereo owns an antenna for each and every person to whom it transmits a signal (and therefore is not producing copies of the signal but rather is simply transmitting the original copy [pardon the oxymoron]) it’s less likely that the performance was transmitted to the public for purposes of the Copyright Act.

In the en banc denial Judge Chin, joined by Judge Wesley, attached a 27-page dissenting opinion arguing why en banc should have been granted. Interestingly, Judge Chin relied made two main arguments: (1) the holding is inconsistent with WPIX, Inc. v. ivi; and (2) the holding is of substantial public importance because it economically harms broadcasters. I find these arguments interesting because ivi is really all about a Chevron analysis that ultimately determined the company wasn’t entitled to a compulsory license under the Act whereas the present case is all about the definition of public transmission. Moreover, the policy focus on the danger to businesses is interesting given the dicta in Ivi focusing on the original intent of compulsory licenses (going back to bringing information to harder-to-reach rural areas). Arguably though Judge Chin was making a broader policy argument seemingly unrelated to statutory interpretation, but interesting nonetheless that the argument focuses on the entrenched businesses rather than startups or cord/antennae cutters (the latter not really being a “thing” so much as a fact of life for most Americans, I would imagine).

Still, interested to see what happens now. I’m not aware of whether there’s a desire to seek cert.

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As technical interviews die at Google, should lawyers adopt them? post image

Having entered law school from a discipline where technical interviews were the norm, I remember being very skeptical of the behavioral interview process. I’ve been thinking about technical interviews lately — specifically, their role in the legal profession — in light of recent news stories about Google vilifying the utility of technical interview questions and brainteasers during the interview process. (Disclaimer: once upon a time I got a callback to a Microsoft interview primarily for, one assumes, answering one of their infamous brainteasers.)

The premise of the argument against technical interview questions for software engineers revolves around the artificial atmosphere created by forcing an applicant to sit in a room and answer tough questions under pressure. While such a situation probably is artificial in the context of designing software at Google, it’s essentially any day of the week for most litigators. If an applicant can’t have an intelligent conversation with me about the implications of her law review comment or the law governing an area about which she has written, why should I think she’ll be effective with clients or judges? I would argue that the technical interview process is a fairly good gauge for how one will react under pressure as an attorney.

So why don’t we do this more? Particularly when you’re dealing with an applicant from a non-T14 school, how can you have any sort of gauge about what their achievements actually mean unless you’re intimately familiar with the law school in question? I’ve had people in interviews with CALI awards in constitutional law who couldn’t answer basic questions about con law jurisprudence that served as the basis for papers they’d written. That’s something that would never come up in a strict behavioral interview, and yet it seems pretty important.

So what’s the deal? What am I missing and why isn’t this the norm?

 

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Pearl Sammett. Canada. National Film Board of Canada. Photothèque. Library and Archives Canada

I Got Myriad Problems and Patents Are One

Association for Molecular Pathology v. Myriad Genetics, Inc. is a case with a long and storied history in the federal courts. For our purposes, the only thing you really need to know is that the Supreme Court is set to hear oral arguments on April 15 to [hopefully] determine whether human genes are patentable.

SCOTUSblog had a symposium on this case, which goes into much better detail than I ever could about the specific issues the Court will need to address to determine whether these patents are valid (hint: most I’ve seen suggest that the Court will find that human genes are not patentable), but I am mostly interested in thinking about this from a policy perspective.

I am fairly conservative in my patent views. I don’t like business method or software patents as a general rule because I don’t think they usually serve the purposes intended by the Constitution or the Patent Act. Let’s review Introduction to Patent Law quickly:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

U.S. Const. art. I, § 8, cl. 8. The overarching idea here is that you, brilliant inventor of this invention that would be difficult to reproduce if you didn’t tell us how you made it, tell us exactly how to make it in return for a government-sanctioned monopoly for a limited term of years. The far-off secondary purpose — and indisputably the more prominent in recent history — is akin to the motives of the Copyright Act; inventors should have some incentive to invent or they won’t invent. The latter purpose necessarily envisions an inventor that can’t make money from her invention without the assistance of a monopoly. Arguably, the former envisions someone who could make money, but would make more with the assistance of a monopoly.

In the 21st Century, inventions are only as good as the company making them. Look at Lytro, for instance. Ren Ng, at the time a Stanford PhD student, designed a camera as part of his dissertation that does not need to focus before snapping a picture, and images can be focused after the picture is taken in post-processing. That’s a billion-dollar idea if I’ve ever heard one. The result from the consumer standpoint is an ugly, awkward camera with very limited functionality. In the better funded and more experienced hands of Apple or Samsung, this technology could be (as Steve liked to say) revolutionary. So do we say that because those companies could fairly easily reverse engineer the Lytro camera the mechanism doesn’t deserve government protections? Not really, because we essentially fall back to the [possibly fictional] idea that Ng wouldn’t have invented this camera in the first place if he wasn’t going to be given patent protection. Personally, I’d argue that the creation of his company to market the product is evidence that he would have invented it irrespective of patent rights, but I digress.

If we decide that genes are not patentable, which I think is the correct finding in a perfect world (on that point I’m in total agreement with my Patents & Biotech Law Prof., Dr. Eileen Kane, who filed the most recent amicus brief in support of the Petitioner), I am concerned that private investors will run away and effectively stall out (or at least set back) the incredible progress of gene research. I have looked through eight of the amicus briefs and seen no mention of this issue, which is somewhat surprising. If the Petitioners can pull out the numbers and show that withdrawal of a large chunk of private funding won’t severely hurt genetic research, then I think I’ll be satisfied.

What do you think? Should non-synthetic genes be patentable?

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google-fiber-picture

97% Profit Margins on Internet Will Cripple Innovation

We’re at a point now where technology has finally caught up to the amount of bandwidth most people have available. A few years ago, the only thing we could really do to max out our bandwidth was download huge files from the internet, but nowadays ubiquitous internet activities can easily max out our available bandwidth or put us over our data caps.

We cut the cord in my house a while ago and Netflix and Hulu have replaced our traditional TV habits. At night when my girlfriend is in one room and I’m in another, both streaming Netflix in HD, we’re using up to 5.6 gigabytes per hour. (If we were sadistic and decided to stream in 3D, that would be up to 9.4 gigabytes per hour.) A conservative estimate says that just in Netflix bandwidth, we’ll tear through about 215 gigs of bandwidth per week. The problem is that many US ISPs start to cap data at around 300 gigs per month.1 We had to upgrade to Comcast Business to avoid those caps, and we’re paying quite a bit more as a result (although thankfully less than we would if we had a standard internet/cable bundle). Even at the increased price of Business Class, the download speeds are about the same (read: not good). Living in Central Pennsylvania, we also don’t really have any other viable alternatives.

This problem has already led, in my opinion, to the destruction of a perfectly good business model. OnLive, a streaming video game company, is in serious financial trouble even though in a perfect world its business model should be selling like gangbusters. No need for a gaming console, subscription plans for multiple games without having to shell out $60 for each new game, great hardware to render graphics, and extended demos so that people can test games instantly without needing to install anything. The problem is that due to connection speeds and server response times here in the US, the average gamer can notice a few millisecond input lag, which is apparently enough to turn most gamers off the product.

I think OnLive was the first major company to really be affected by our infrastructure, but it won’t be the last. There are some technologies specializing in reducing bandwidth costs through compression, but as our hard-wired technology continues to improve, we’ll ultimately want downloadable analogs, and that’s going to be a problem going forward. Recently, credible sources have reported that ISPs like Comcast and Warner Cable are operating at a 97% profit margin on currently-existing internet services. Even though the US is currently ranked in the high 20s to low 30s in terms of broadband measures, there’s simply no incentive in the world for the ISPs to improve what they’re already offering until someone comes along and offers something better, on a large enough scale, for cheaper. (Or until the government decides to regulate the insanity.) If things don’t change in the near future, I suspect we’ll start to see the first round of applications and services that become popular in foreign countries, but are simply unusable in the US, within the next few years.

I should note that there’s some hope at the end of the tunnel. I’ve seen some anecdotal evidence recently that Google Fiber may be shaking up the state of affairs. Unfortunately, people better versed in the issues than me have commented that it’s unlikely that Google will be able to expand across the entire US, but who knows? I’ll stay optimistic because it seems like our only shot in the near future.

  1. This was the Comcast hard cap for a while, though I’ve read that they’re likely turning it into a soft cap, where people like me will only have to pay an obscene amount of money to continue service rather than get shut off entirely. []
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DoD photo by Sgt. Rome M. Lazarus, U.S. Marine Corps.

The following is a transcription of the recently released DOJ white paper regarding the use of legal force against a U.S. citizen who is a senior operational leader of Al-Qa’ida or an associated force. A Google search reveals that no one has transcribed this yet [edit: Wikipedia also has a transcription that was initially quite bad but is getting better], so I thought it was important to make sure it gets indexed by search engines. Moreover, some reddit users have suggested that this story is not getting more attention because it’s so full of legalese, so this is an attempt to translate the document for a lay audience. These are not my personal thoughts — simply my view about what the writers were trying to say. For the sake of your sanity, I over-simplified what they were saying while trying not to lose too much in translation. Luckily, we attorneys are verbose.

Please note that although I am a lawyer, this field of law goes well outside my expertise and I welcome comments from those of you better able to elucidate the issues. For a good overview of the subject, see the ACLU’s recent blog post.

DEPARTMENT OF JUSTICE WHITE PAPER

Lawfulness of a Legal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force

This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force1 of al-Qa’ida-that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans. The paper does not attempt to determine the minimum requirements necessary to render such an operation lawful; nor does it assess what might be required to render a legal operation against a U.S. citizen lawful in other circumstances, including an operation against enemy forces on a traditional battlefield or an·operation against a U.S. citizen who is not a senior operational leader of such forces. Here the Department of Justice concludes only that where the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a· senior operational leader of al-Qa’ ida or an associated force would be lawful: (1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. This conclusion is reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a U.S. citizen, and also of the extraordinary seriousness of the threat posed by senior operational al-Qa’ida members and the loss of life that would result were their operations successful. [click to continue…]

  1. An associated force of ai·Qa’ida includes a group that would qualify as a co-belligerent under the laws of war. See Hamlily v. Obama, 616 F. Supp. 2d 63,74–75 (D.D.C. 2009) (authority to detain extends to “‘associated forces,'” which “mean ‘co-belligerents’ as that term is understood under the laws of war”). []
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Legal Geekery Podcast — Episode 32

Play

Introduction

  • It’s been months since the last show. What’s new? Josh’s journey from lawyer back to student (and lawyer consultant) is new! And don’t miss the scoop on Alice and Dallas.
  • Josh will be getting the iPhone 5, no doubt shipping with iOS 6 (note our totally ahead-of-its-time prediction, um, as of the date of recording, that is…).
  • Check out Josh on This Week in Law, Episode 177, with Denise Howell, Evan Brown, and Peter Toren.

In the News

You’re Doing It Wrong

Love for Our Geeks

  • Brad Snyder wants a job. An IP transactional associate job, to be exact. Check him out, and tell us if you hire him. Our finder’s fee is quite reasonable.

Like What You Hear?

If you like what you hear, please consider giving us a positive review on iTunes, leave your comments (here and/or there) and, of course, subscribe to the podcast.

We want to talk about what you want to hear about! Send questions, ideas, comments, complaints, and corrections by email to podcast /at/ legalgeekery /dot/ com. Harass Josh on Twitter at legalgeekery, Laura at lbergus.

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