I don’t play MMOs or other virtual world games based on the high likelihood that I’d become an obsessive recluse who subsists on Diet Pepsi Max and is frighteningly pale. (Oh, wait, too late…) So I hadn’t given virtual property too much thought. But I realized that maybe this cognitive disconnect – why pay hard cash for items “made entirely of fiction and code,” as Wired puts it – comes from the label “property.” IP aside, we still expect property to be stuff – things we can lay hands on, move around, and keep away from others. Virtual swords don’t really fit this model. This leads to all sorts of challenges flowing from this cognitive mismatch: can you “steal” virtual property? What happens if the game designer gives everyone the same cool sword that you bought? Or eliminates it? Should realspace courts enforce virtual bargains?

Here’s a better model: it’s a service. (Disclaimer: I’m sure someone else has come up with this.) Take Disney World’s FastPass option. You pay more money, and in exchange, you get to cut the line at attractions like Big Thunder Mountain Railroad. (Probably not necessary at It’s A Small World – anyone who can listen to that theme song for the duration of the ride should automatically get to cut.) Going to Disney isn’t buying a thing – it’s buying an experience. At the end of your day, you don’t have anything to show for your money except pleasant memories – a change in your lived experience. The FastPass enhances that experience; it makes it more pleasant and reduces annoyances like standing behind people wearing mouse ears. But it isn’t “property.”

So, too, virtual swords. They enhance the in-game experience, letting you do things that would otherwise take more time, effort, and psychological discomfort. Basically, you’re buying a better experience – in some cases from the MMO, in some cases from a third party. I think if we reframe virtual world questions along this axis, it might help us think about challenges like theft and breach of agreements, and perhaps even about in-game alterations.

I’ve got to ponder this a bit more, but I’d love to hear what all of you have to say. And if any of you have a virtual ninja monkey for sale, I’m game!

For one thing, it means your dean is smart enough to want news coverage with lots of shots of your school’s logo. But does it mean your institution agrees with any / all of McCain’s positions?

I was pondering this question after reading a piece in the Boston Globe about pressure on Catholic colleges and universities to invite speakers who hold positions amenable to church doctrine. (Sorry, John Kerry and Rudy Giuliani!) This seemed narrow-minded; part of the mission of an educational institution is to encourage, even foster, debate and disagreement. Yet the concern seems to be that inviting speakers with views at odds with Catholic teachings would be perceived either as implicit endorsement of those positions or, perhaps more mildly, a de-emphasis of the importance of following the Church’s rules. (Full disclosure: I went to a Catholic high school, which I loved, and which was absolutely devoted to scholarly inquiry and freedom.)

So, I felt admirably open-minded. But a minor controversy at my current institution, Wayne State, made me think harder about the issue. The law school invited Michigan Supreme Court justice Maura Corrigan to receive an honorary degree. The furor: Justice Corrigan joined the majority opinion in National Pride at Work v. Governor of Michigan (thanks, Prawfsblawg!), which held that Michigan’s constitutional amendment banning same-sex marriage or civil unions also prohibits public employers from offering benefits, such as health care, to the domestic partners of employees. The court relied on the “plain meaning” of the amendment’s text in its ruling. Some at WSU decided not to attend graduation based on the conferral of the honorary degree, for two reasons: first, disagreement with the outcome of the case, and second, strong disagreement with the majority’s legal reasoning. The question became: does offering Justice Corrigan an honorary degree imply endorsement of her legal reasoning, the court’s opinion, or a particular view on same-sex benefits? (Particularly when the opinion came down less than a week before graduation.) A number of my colleagues wrestled with that one.

I’m of two minds about this. Justice Corrigan is a long-time public servant with strong ties to Wayne State – her late husband, Joe Grano, was a professor at the school, and her son graduated recently from it. However, while the National Pride at Work opinion may accurately reflect the intent of the Michigan voters who ratified the amendment, its reasoning is an embarrassment. When a court uses, as its primary source of legal authority, the Random House dictionary, that’s generally a signal of less than high quality legal analysis. (Rick Hills at Prawfsblawg has a more scholarly analysis here – take into account that he was co-counsel for the petitioners. See also Volokh Conspiracy and Workplace Prof Blog.) There are, then, two layers of analysis to the “signaling” issue here: the outcome and the reasoning. Should the honorary degree be read as sending any normative signal regarding either one – for this case, or for Justice Corrigan’s jurisprudence generally?

I love the idea of social signals – of non-verbal, but highly relevant, information. Ethology is loaded with this: threat displays, mating dances, and the like. So, what signal does it send to extend an invitation to someone to speak at graduation, or to receive an honorary degree? How does this type of association function as information? What should we make of Jeremiah Wright and Barack Obama, George W. Bush and Bob Jones University, Howard Knopf and the Public Policy Forum? Does it matter whether the actor / institution intends to send a signal? Practically speaking, how do you pick someone interesting to give an address without offending unduly? (I think Bono is generally available, but he did say the F-word on the air at one point…)

Slate has picked up on this odd pattern: the re-emergence of well-known brands / trademarks, often on altogether different products in the same market. Ford re-christened its Five Hundred sedan (not to be confused with the Gang of 500, Chrysler’s 300, or the other 300) as the Taurus. Coca-Cola brought back Tab to enter the energy drink market. Life went from a famous photo magazine to a Sunday newspaper insert, of the sort that would feature articles like “Paris Hilton: All Grown Up, She Talks About Life’s Lessons, Pet Ownership, and Staying Strong.”

This phoenix-like resurrection of new wine in old bottles raises some trademark questions. To wit: rewind a year or so. If I put out an energy drink called Tab, Coca-Cola can sue me on the theory consumers still associate the brand with the company (”residual goodwill” in trademark parlance), leading thirsty clubgoers to assume Coca-Cola produced the stuff they’re mixing with vodka. Consumers know who produces Tab and what it is; my concoction will confuse them into believing they’re drinking a Coke-produced low-cal soft drink. If Coke comes out with a new, entirely different product and slaps the Tab label on it, though, there’s no legally cognizable harm – after all, the source / producer of the beverage is the same, even if the stuff in the can is different. Ditto the Five Hundred: my mother-in-law is a devoted Taurus buyer. She replaces her car every six years or so. What happens when she goes to the Ford dealership, sees the familiar name, and purchases what is really an entirely different car?

There’s a tension in trademark. Trademarks are defined as source identifiers: we can be sure that McDonald’s is the same everywhere because it’s the company founded by Ray Kroc that runs them all (ignore franchising for the moment). Therefore, marks are informationally efficient: they let consumers use a convenient shorthand rather than having to inspect everything they buy carefully. Trademark doctrine, under the Lanham Act and relevant state unfair competition theories, protects against competitors who try to freeload on these symbols, thereby confusing and harming both consumer and producer. But what happens when a producer runs the risk of confusing consumers? Shifting a mark between similar goods can fool consumers, who have one set of expectations regarding the brand, but find it’s no longer accurate – even though the source is the same.

Two remedies suggest themselves, neither appealing. First, one might view the producer as losing the rights to that mark – in effect, the mark falls into the public domain. The problem with this approach is that it risks even greater consumer confusion, at least in the short run. Second, one might contemplate a remedy by consumers against producers, especially if producers don’t use a disclaimer (”New and improved!”) on the relevant product. But courts would likely not go for this, especially if trademark’s touchstone is source identification and not product characteristic identification.

I’d welcome thoughts on other remedies.

Will doesn’t seem to oppose genetic testing generally; he doesn’t want to provide pregnant women with certain information (or, perhaps, opposes mandating its provision) because he is concerned about their behavior in response to it. Information control, then, is a second-order move: banning abortion is currently impermissible constitutionally, and convincing women to carry babies with Down to term is evidently an unsuccessful proposition. (Will states that 85% of pregnancies where the fetus is diagnosed with Down syndrome end in abortion.)

Some might object to Will’s position either because of his conservative politics or because of concerns about limiting choice. There are parallel situations that would likely worry liberals, too, though. India regulates genetic testing (Word document) due to concerns that parents will abort female fetuses.

There are three problems with this approach. First, censorship is clearly a second-best (if that) solution. Changing the underlying behavior is preferable; Will’s sensitive treatment of Jon, a person with Down syndrome, may be helpful in this regard. Second, banning information works like banning narcotics: it shifts from a legal to a black market for information, increasing both its cost and its risk. If we took the strong version of Will’s position and banned the Down test, we could safely anticipate that wealthy expecting parents could pay the risk premium to get the test, while less well-off pregnant women could not. This would lead to the counterintuitive, and likely undesired, result that children with Down syndrome would be more likely to be born to families with fewer resources to help meet their particular needs. Again, altering the underlying bias against children with Down syndrome is a better approach.

Finally, in a legal regime where abortion is lawful, access to information poses hard questions. Should we ban genetic tests for Tay-Sachs Disease? What about neural tube defects? The question is what alterations from standard fetal health should be diagnosed, and which ones society views as proper grounds for termination of a pregnancy. If we know that 85% of parents would abort a fetus with a given condition, how should we treat a test that provides them with information about whether their baby has that condition?

Regulating information is often easier or cheaper than regulating conduct, but it has a number of flaws: it favors those who can buy their way around barriers, and it avoids hard questions about the underlying behavior that is undesirable (the information, after all, is formally neutral). I’m worried that Will is taking the easy way out.

Whether or not I agree with all of Sunstein’s conclusions, his quest for systems that aggregate knowledge across networks is an exciting way to look at the contemporary Internet. A large number of the most interesting projects taking place on the Internet use strategies to aggregate information from multiple users to create new knowledge – this is the magic behind Google’s PageRank algorithm, Digg’s headlines and Amazon’s collaborative filtering recommendations. Analyzing these systems in terms of their effectiveness in getting people to reveal hidden knowledge is, in my opinion, an excellent framework for evaluation.

And this:

You can think of Infotopia as a caged deathmatch between Hayek and Habermas, streamed live on the Internet. Habermas taps out somewhere around page 200.

Trials are closely controlled information environments. Information is permitted or excluded for a variety of reasons – accuracy (one reason why confessions extracted by torture are banned), relevance (information about the defendant’s political views would rarely be admitted), and undue influence (prior criminal convictions are generally not allowed into evidence), among others. I’m interested in why this information – pictures of the slain fiance, worn by his family – was blocked. After all, regardless of Musladin’s guilt, the fiance is still dead, and his family misses him. Moreover, it probably doesn’t surprise jurors that the family regards Musladin as guilty – the point of a trial is to test that belief. So, why keep the buttons out?

I’m not a criminal procedure expert, so I asked one.

David Moran is Associate Dean here at Wayne, and he’s argued a half-dozen cases in front of the Supreme Court on criminal procedure (most recently Hudson v. Michigan, where the Supreme Court wiped out the centuries-old “knock and announce” rule from Fourth Amendment protections). Dave noted that a prudent judge would have banned the buttons: courtroom displays can easily sway a jury. (Imagine T-shirts reading “Convict Murderer Musladin!”) He points out, though, the difficult line-drawing problems in this area: could the family wear black? Could they weep as the pathologist described the fiance’s injuries? Could they scowl at Musladin while he testified? Would it be sufficient remediation for the judge to instruct the jury to disregard anything they see or learn from the audience gallery? (I’m highly skeptical of remedial instructions – in a recent article, I touch on numerous studies that show they’re completely ineffective.) (Also, please note I’ve cribbed all of this from Dave’s detailed explanation to me.)

Another challenge, Dave states, is that appellate courts are poorly positioned to evaluate whether information influenced a jury improperly – our legal system relies heavily on the trial judge to make these determinations. On the merits, he argues, a reviewing court should reverse and overturn a conviction if jurors are exposed to outside information that could reasonably have affected how they considered the evidence.

Most of the analysis of Musladin has focused on judicial politics: commentators think the Supreme Court will overturn the Ninth Circuit’s ruling, at least in part because the judge who wrote it (Stephen Reinhardt) is one of the leading liberal jurists, and the Supreme Court has become more conservative with the recent appointments of Justices John Roberts and Samuel Alito. I like political foodfights myself, but I’m interested in the informational questions.

There are, I think, two approaches to the buttons. First, we could analyze the likely informational content and effect on jurors. What conclusions, if any, do jurors draw by seeing the (alleged) victim’s family wearing photos of him? Do the buttons convey more than Dave Moran’s hypotheticals of weeping, wearing black, or glaring at Masludin? (Are those out of bounds too?) I’m skeptical here, which makes me lean towards the California courts that found no constitutional violation.

Second, we could emphasize risk. What are the risks of allowing the buttons, versus banning them? Blocking the buttons forecloses any constitutional challenge. It does limit the fiance’s family from expressing their love for their son / brother, and their grief. (However, if it insulates a conviction from being overturned, it also serves their interests, albeit indirectly.) This vein of analysis moves towards Dave Moran’s views about the prudent judge: the cautious course is to keep audience displays under wraps. In part, this raises issues about how much of a voice victims’ families should have during the trial process, and the (strong) countervailing protections we provide for criminal defendants in order to ensure a fair, accurate, just result. Here, I lean towards the Ninth Circuit’s view: whatever the line-drawing problems, finding a violation here presses judges to make the risk-minimizing decision.

In the end, I’m not sure what to think. The courtroom is perhaps society’s most artificially-controlled information environment: there are rules, arguments by trained advocates, and careful appellate review to standardize and, hopefully, optimize the data that jurors receive. While the buttons may not be likely to cause prejudice to defendants, it may well be the course of least risk – and the one most likely to serve the interests of both society and victims’ families – to keep them off audience lapels during trials.

Addendum: I’ve just re-read the Ninth Circuit opinion (the first one, not the denial of re-hearing) and want to add two points.

First, intent plays a bizarre role in the majority’s reasoning.  The family’s intent to “send a message” via wearing the buttons plays a role, as the court shows in its treatment of relevant precedent.  Having uniformed officers sit in the courtroom to provide security does not prejudice the defendant’s trial (Holbrook v. Flynn); having uniformed officers sit in the courtroom to “show solidarity” with the murder victim does prejudice the trial (Woods v. Dugger).  (While Flynn is a Supreme Court case, and Dugger is an 11th Circuit case, note that the 11th Circuit wrote with the aid of the Flynn opinion.)  So, the information conveyed to the jury depends on the officers’ intent?  How?  Similarly, how is it that the family’s intent in wearing the photos matters?  Isn’t the issue what message is received rather than what message is sent?  This strikes me as bizarre.  (Of course, it’s equally odd that courts decide on what information is conveyed to jurors in these cases without any empirical evidence or analysis to back them up, but that’s a topic for another time.)

Second, the dissent – which may have the better of the argument after the Supreme Court rules – is overly minimalist.  Judge Thompson writes, for example, that the California courts were not “objectively unreasonable,” but doesn’t bother to adduce any evidence to support this conclusion.  I like concise opinions, but I do prefer that judges offer some sort of basis for their reasoning.

Reaction has been almost uniformly negative, and often rather prissy in tone. Criticisms seem to come in one of four flavors:

1. Voters should not need to be bribed to vote. Our forefathers fought and died so we could vote; it’s a solemn civic duty; etc.
2. It’s illegal under federal law, which prohibits paying a voter to induce them to vote. (Admittedly, this is bad if accurate.)
3. Higher turnout is not helpful; it simply means that more uninformed morons participate, which isn’t good for anyone.
4. This cheapens voting; treating it as a paid service is somehow tawdry. (A similar argument posits that having to overcome some difficulties to cast one’s ballot is character-building and forces us to meditate upon the importance of the event.)

I don’t have an opinion on the plan – since I don’t live in Arizona, and will vote regardless, I’m impossible to greenmail. That said, I find the analysis of this move almost entirely trite and puerile. Here’s what I want to know:

1. Surveys show 12% of respondents said they’d be more likely to vote if the reward system passed; 10% would be less likely. Is a net gain of 2% of voters worth a million bucks? (It might be, in a $9 billion+ state budget.) Do these groups of voters differ in terms of knowledge of the issues, partisan affiliation, or other key demographic indicators?
2. Why do we assume that voters are well-informed — or, at least, better-informed than people who don’t vote? Voters might be virtuous (voting as a civic duty), but dumb or ignorant.
3. Assume non-voters, now motivated by the possibility of a million smackeroos, enter the voting booth and play One Potato Two Potato to decide among their options. Why is this a problem? Theoretically, these “blank slate” voters distribute their ballots evenly among all candidates or choices, negating the effect of their votes. (Note that this might differ under systems that require runoffs if no candidate reaches 50% of the vote – better-informed voters might re-align their preferences in a second round of voting that would not have occurred absent the expanded turnout. This seems an edge case, but it’s worth keeping in mind.) The only risk here seems to be that a less thoughtful voter might receive the $1 million, but that brings up some rather difficult subjective questions about how to evaluate what counts as “informed.”
4. Does the prospect of reward alter behavior before voting? For example, from an optimistic perspective, the voter might learn more about available choices, knowing he / she will have to select from them eventually (since this person wants a shot at the Big Money).

The information that voters have, how it’s presented (and when), and its effects are of great interest to me after my sideline into the “marketplace of ideas.” While Osterloh may be naive in his approach, his critics are frequently banal in their responses, and that’s disappointing, because this is a neat idea.

I’m fascinated with this problem – how information, and how it’s presented, affects human decisions and the way law tries to regulate them – and have a paper coming out soon that looks at the tension between cognitive biases and the theory of the “marketplace of ideas.” Even random information can alter our analysis. To give one famous example, Amos Tversky and Nobel laureate Daniel Kahneman spun a wheel of fortune with numbers from 0 to 100 in front of study participants. Next, Tversky and Kahneman asked the subjects to estimate how many African countries were in the United Nations. Lo and behold, the spin results significantly affected people’s estimates – even though they had no bearing whatsoever on the correct answer.

What does it mean for law and policy when how information is framed alters the choices we make based on it? For example, what is the “correct” way for doctors to present data on risks to patients, knowing that discussing it in terms of the risk of dying (mortality) versus the probability of living (survival) – flip sides of the same coin – will shift the resulting decision? What should the law require for “informed consent“? Should doctors reveal a tiny risk of a gruesome death if they know, empirically, patients will give undue weight to that possibility?

I don’t know the answers to these questions. I submit to you that information law must grapple with them if it wishes to guide regulation effectively.

But the internet cannot replace everything. When our broker saw a house that seemed like it might be “the one,” the pictures looked good to me but not so fantastic that I knew we’d found the perfect place. At his urging, my wife and I flew out to Minnesota the next morning (booking our tickets on the web, of course!) and looked at the place ourselves. Then and only then, when we could walk around, see it, poke it, did we know — or rather, feel — that our broker was right and this house was “the one.” Even the most sophisticated and painstaking simulation in Second Life couldn’t possibly replicate that instinct. Just 48 hours later we had the house under contract; we close next month.

The internet helped a ton — but, obviously, some things just can’t be done virtually!