Future Conduct and the Limits of Class-Action Settlements – James G.
The coruscating James Grimmelmann recently published a crisp, clean exorcism of “future conduct” releases in class action suits, in the North Carolina Law Review. Using a number of recent class actions as motivation, including the Google Books case, he patiently and eloquently dissects the ideas behind such carte blanche releases, and the rare cases in which they might be called for.
This is a gem of a monograph – worth reading even if you are not a copyright geek.
From the opening salvo (emphasis mine):
This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public… [F]uture-conduct releases pose severe informational problems for class members and for courts… create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.
Courts should guard against the dangers of future-conduct releases with a standard and a rule. The standard is heightened scrutiny for all settlements containing such releases; the Article describes the warning signs courts must be alert to and the safeguards courts should insist on. The rule is parity of preclusion: a class-action settlement may release future-conduct claims if and only if they could have been lost in litigation. [...] The Article concludes by applying its recommendations to seven actual future-conduct settlements, in each case yielding a better result or clearer explanation than the court was able to provide.
If you’re in a hurry and don’t have time to savor all 90 pages of finely referenced background and analysis, a handy comparative timeline is on p.410, the standard and rule start on p.431, and the 7 brief case studies start on p.458.
via the Laboratorium.
Babbage on Aaron, in this week’s Economist, with love and regret
Remembering his own past correspondence with Aaron:
On hearing of his death Babbage (G.F.) reviewed a number of e-mails he exchanged with Mr Swartz in 2000-01. The boy was in his mid-teens but his prose, taut and to the point, was as mature as his precocious mind. He wanted to know where your correspondent obtained book data for a price-comparison site. He even suggested a collaboration, regretfully unconsummated, that later became the nucleus of the Open Library.
Funeral (Tuesday), Memorials (Next Week), and other events
Aaron’s funeral will be on Tuesday in Chicago:
10am at Chabad of Highland Park, Chicago
followed by internment at Shalom Memorial Park in Arlington Heights, Illinois.
Memorials will take place in a few cities over the next two weeks: including
Boston (at the MIT Media Lab)
New York
Washington DC
San Francisco
A Boston-area protest was planned in for 12:00 today at the MIT Counsel’s OFfice and the MA District Attorney’s office.
Double entendres, or adianoetas, as seen by linguists
The paper: “That’s What She Said: Double Entendre Identification“
“Surely Yuriy Kiddon me”, I thought, reading this University of Washington monograph. But no, they really are that cool over there.
On the benefit of passion, focus, poise, wit. For Sebastian.
A pinch of poise, a twist of wit,
Suffice to foil the darkest fit of pique -
or set the mind at ease when seeking
ancient remedies for slaking the eternal drive
to make, sing, see, feel, learn, and thrive.
The Six Symptoms of Pathological Science, by Irving Langmuir
This overview of pattern-creation in the guise of science and its mob effect on whole fields must be read and relished.
The Six Symptoms of Pathological Science:
- The maximum effect observed is produced by an agent of barely detectable intensity. The magnitude of the effect is largely independent of the intensity of the cause.
- The effect is of a magnitude close to the limit of detectability, or many measurements are necessary because of low statistical significance of individual results.
- There are claims of great, even extraordinary, accuracy
- Fantastic theories contrary to experience are suggested (with enthusiasm)
- Criticisms are met by ad hoc excuses thought up on the spur of the moment (this may be contagious)
- The ratio of supporters to critics rises to somewhere near 50%, then falls gradually to zero.
Also, note that the “Allison effect” and mechanism is the most amazing example given, and may show something different than standard pathological science: it was considered good science for over a decade, and by hundreds of practitioners.
From a talk famously given by Langmuir (1932 Chemistry N’Laureate) in 1953, transcribed by Robert Hall, illustrated by Physics Today, republished and promoted by professors and authors.
Gline, Simmons-Duffin, and the fine Physics snarXiv
Comphysic relief: arXiv vs. snarXiv
You can learn a lot from browsing the arXiv that way; I discovered Tang’s variation on a neutrino counter-nuke. Along with some papers which would be awesome if anyone managed to write them.
I was delighted to rediscover David SD’s homepage and musings, and reminded of my long-term bet with Matt Gline about the progress in semantic clustering and searching.[1]
[1] Whether or not we will have meaningful deep searching of patent/idea databases that allows classification anad clustering across all dimensions of ‘idea’, and idea diffs, in the next few decades. If we can find the original statement of the bet, and its deadline, one of us will treat the other to a meal at any restaurant of his choice.
Every mortal thing now flame, dwell, be, tell, tumble, sing: For this I came
As kingfishers catch fire, dragonflies dráw fláme;
As tumbled over rim in roundy wells
Stones ring; like each tucked string tells, each hung bell’s
Bow swung finds tongue to fling out broad its name;
Each mortal thing does one thing and the same:
Deals out that being indoors each one dwells;
Selves — goes itself, myself it speaks and spells,
Crying Whát I do is me: for this I came.
—GMH, SJ ↬ Cowbird
UNHRC: Periodic Rights Review (US edition, part 2)
Earlier this year I wrote a bit about the latest UNHRC periodic rights review of the US, something that happens for every country once every four years. Norway offered the most excellent advice, making 7 solid apolitical recommendations.
They didn’t rehash international policy disputes or convention-signing, which can be nominal at best: and focused instead on essential changes that can be carried out now, and would be historically significant. If we implemented their 7 recs, our nation would be a better place. Here they are, consolidated (with the # of the rec, and our response):
- Consider a human rights institution at the federal level to ensure implementation of human rights in all states (74: yes, will consider, but no current plan)
- Take further measures in economic and social rights for women and minorities, including equal access to decent work and reducing the number of homeless people (113: yes)
- Take measures to eradicate all forms of torture and illtreatment of detainees by military or civilian personnel, in any territory of jurisdiction, and that any such acts be thoroughly investigated (139: yes)
- Take steps to set federal and state-level moratoria on executions with a view to abolish the death penalty nationwide (122: blanket no)
- Review federal and state legislation with a view to restricting the number of offences carrying the death penalty (132: blanket no)
- Apply the model legal framework of the Leahy Laws to all countries receiving US security assistance, with human rights records of all units receiving such assistance documented, evaluated, made available and followed up upon in cases of abuse (227: no more than now. ‘we already do this, but in secret’)
- Remove the blanket abortion restrictions on humanitarian aid covering medical care given to women and girls who are raped and impregnated in armed conflict (228: no, sorry. “due to currently applicable restrictions”)
The death penalty is increasingly considered outmoded and barbaric in most of the world, yet in our domestic discussions it is seen as a reasonable option – more a matter of regional preference than a fundamental moral matter. 35 states currently allow it.
And what’s up with the 7th point above? The US has imposed restrictions on its international aid funding over the past few decades to prevent aid recipients from using those funds to provide abortions or suggest them as an option for family planning. The most well-known example of this is the Mexico City Policy , instated by Reagan and since repealed or reinstated by each preseident in the first days of his term, along party lines. This affected roughly $100M of aid given to family planning programs; and is also called the “global gag rule” because it prohibited aid recipients from using any of their funds for abortion care.
Today, while the MCP stands repealed, there are other similar restrictions in force – including the one highlighted by Norway. They are reportedly the first country to bring the issue up in an international setting, as part of a campaign launched with the Global Justice Center.
Overall, I am fascinated at how unified and sane most of these recommendations are. It reminds me that peer review by a large group of peers tends toward the awesome, constructive side of the scale, even when the peer group includes some trolling and posturing.
“I want Happiness”
A man once said to Buddha: ”I want Happiness.”
Buddha said: “First remove ‘I‘, that is ego.
Then remove ‘want‘, that is desire.
Now you are left only with Happiness.”
