The Laboratorium
January 2008

Meet the Hatchet Job


Meet the Spartans drives Slate movie reviewer Josh Levin over the edge:

Isn’t it massive consumer fraud to charge $10.50 for a barely hour-long movie? Perhaps, but it would’ve been unforgivable to make Meet the Spartans any longer than an hour. This was the worst movie I’ve ever seen, so bad that I hesitate to label it a “movie” and thus reflect shame upon the entire medium of film. Friedberg and Seltzer do not practice the same craft as P.T. Anderson, David Cronenberg, Michael Bay, Kevin Costner, the Zucker Brothers, the Wayans Brothers, Uwe Boll, any dad who takes shaky home movies on a camping trip, or a bear who turns on a video camera by accident while trying to eat it. They are not filmmakers. They are evildoers, charlatans, symbols of Western civilization’s decline under the weight of too many pop culture references.

It’s the bit about bear that makes this funny. And he’s right. I’d rather watch footage accidentally shot by a hungry bear than go see Meet the Spartans. (It’s running a 10 at Metacritic: “Extreme dislike or disgust.”)

Small Upstate Towns, Dependent on Slave Labor


I exaggerate, but not by much. The New York Times reports on New York towns lobbying to keep their local prisons from closing down:

The reliance on Camp Gabriels extends well beyond jobs. Small businesses have staked their survival on the prison workers who patronize their stores. Local governments and charities, meanwhile, have come to depend on inmate work crews to clear snow from fire hydrants, maintain parks and hiking trails, mow the lawns at cemeteries and unload trucks at food pantries.

Every winter, the crews help build an ice palace in the nearby village of Saranac Lake, cutting thick blocks of ice that can weigh up to 700 pounds. The palace is the main attraction of the village’s Winter Carnival and attracts thousands to the area.

“All those services, when you put that into dollars, there’s no way we’d be able to hire people to perform them,” said Mary Ellen Keith, supervisor of the town of Franklin, which relies on the crews to cut overgrown brush from the sides of 67 miles of local roads, among other tasks.

No inmates were interviewed for the article.

Roguelike Traders


I love the phrase “rogue trader.” It has so many inappropriate associations:

  • “Yes, he lost $7 billion of our money, but he’s such a lovable rogue, who can blame him?”
  • “Ah, there’s your mistake! Only hire paladins to work the trading desk. Lawful good, and nothing but. That’s the way to go.”
  • “No, we have no idea how he managed to start trading on our account. He’s a rogue; he probably managed to sneak in or something.”

Life Imitates Art Imitates Life


A far-flung correspondent writes:

The last time we were here (nine years ago), the customs official sold us a CD of songs by his brother before clearing us in. The lead song was about the problems of official corruption.

Don’t Ask Me; I Just Work Here


On Guantanamo:

The chief of the U.S. military said Sunday he favors closing the prison here as soon as possible because he is concerned that worldwide negative publicity about the treatment of terrorist suspects has tarnished America’s image.

[Chairman of the Joint Chiefs of Staff Adm. Mike] Mullen, whose previous visit was in December 2005 as head of the U.S. Navy, noted that President Bush and Defense Secretary Robert Gates also have spoken publicly in favor of closing the prison. But Mullen said he is unaware of any active discussion in the administration about how to do it.

The President (who is, after all, the Commander in Chief) and both the civilian and uniformed heads of the United States military have all claimed they want to close the Guantanamo Bay prison camp. Suppose they were telling the truth. Between the three of them, you’d think someone could have actually done something about it.

Sophomores and Beer Money


Steven Pinker:

When psychologists say “most people” they usually mean “most of the two dozen sophomores who filled out a questionnaire for beer money.”

Lawyers, Blogs, and Money


Drafting my disclosure statement reminded me of an issue I’ve been meaning to discuss for a while. I don’t blog for money; I’m uncomfortable when other legal academics do. For the most part, we don’t need the money to operate our blogs, so bringing money into the picture creates some unnecessary tensions.

This is not a condemnation of commercialized blogging. When a corporate executive writes for a company blog, the self-interest is both obvious and irrelevant. Full-time bloggers, like full-time journalists, need to get paid or they don’t eat. And plenty of hobbyist bloggers would have a hard time if their blogs weren’t self-funding. My concerns are more specific to legal academic blogging. Professors have a special calling. We’re paid to be intellectually independent.

Nor am I saying that law professors should never mix the blogging arts with commerce. There’s no firm line between blogging and other activities in the public eye. Just as it’s okay to for professors to be paid to write op-eds, best-selling books, and newspaper columns, it’s okay for them to be paid to blog. Glenn Reynolds blogged for four years for MSNBC; it was a great gig for a law professor and good for the academy that he took it.

My point is only that adding money to a blog introduces a set of subtle interlocking pressures: maximize readership, drive readers to ads, measure everything. The steps some legal bloggers take to satisfy these pressures can undercut the free flow of ideas at the heart of the scholarly ideal.

Finally, some blogs are so popular that their hosting costs are beyond what any one academic should be expected to pay out of hobby money. These blogs need sponsors just to exist. (Perhaps law schools could treat them as faculty promotion expenses—but that would raise a different set of independence concerns.) These blogs have no choice but to wrestle with the issues I’ll describe below. The rest of us, though—and that’s the overwhelming majority of lawprof bloggers—have moderate readerships and few expenses. We can avoid the tensions altogether, and I think usually should.

Let me explain.

The Business of Blogging

It’s easy to run a legal academic blog without paid advertising. Consider Opinio Juris (professionally hosted at PowerBlogs), Discourse.net (largely self-administered, with hosting at DreamHost), and Leonard Link (on a school-specific subdomain of TypePad). I do it, too. It costs less than it would if I spent the time on more traditional forms of “entertainment.” For those law professor blogs that do take ads, the most common model is to place banner or text ads in the sidebars or header. Here are some examples:

I’ve never heard anything to suggest that the sponsored blogs do anything untoward based on who’s sponsoring them. Even Prawfs’s Course Preparation Project has been scrupulously honest about not endorsing any publisher, and since we all need to use a casebook, it’s not as though the Project affected total casebook sales. But here, perhaps, is the first value of independence. My blog isn’t sponsored by a publisher, so my own endorsement—I’ve consistently found Aspen casebooks to be outstanding—comes free of any taint of suspicion. I might not be able to say that as credibly if I took ads from them. (For this reason, I’m also not an Amazon affiliate; I don’t want anyone to fear that my book recommendations are driven by self-interest.)

The bigger concern, which unites both sponsored blogs and ones with network-served ads, is that pay-per-click methods create a systematic incentive to increase readership. (Aspects of this argument may sound familiar to readers of Ed Baker.) Of course, more readers is generally good; we should generally prefer to have our ideas reach broader audiences. But the pressure to add readers can have unhealthy consequences.

Advertising

First, showing ads to readers is itself a waste of their attention. I assume that people come to my blog either by mistake or to read what I have to say. Neither reason provides an excuse for me to steal a few tenths of a second of their time by bombarding them with distracting ads. We don’t put Pepsi ads in our articles; we don’t hang T-Mobile posters on our office doors. I’m not convinced that academic blogs should be different.

A closely related problem is that only readers who see the ads can click on them. Readers who use feedreaders, though, don’t normally see the ads on a blog’s web pages. The short-run profit-maximizing response is to provide only the first few lines of each post in the feed. Readers who want to read the whole post need to click through to the post’s page—with attendant ads. Again, this practice wastes readers’ time. It also interferes with practices that speed ideas to new audiences; you can’t run a search across all the feeds you read if only some of them are full-text.

Similarly, the drive to monetize readers encourages blogs to keep a close hold on their content. None of the ad-laden lawprof blogs listed above offers its posts under a Creative Common license. (By way of contrast, Feminist Law Profs and the Becker-Posner blog, both of which are ad-free, use Creative Commons licenses.) I doubt that this tradeoff was explicit in most bloggers’ minds, but it’s a good example of a deep and subtle tension. Blogging for money encourages a particular way of thinking about your writings, one that sees them as a resource whose value can be improved through close management. That way of thinking can make it harder to remember that ideas are naturally as free as the air to common use. As law professors, we of all people should be most attuned to the social value of giving our ideas away freely to all comers to do with as they will.

Counting

Other problems have more to do with attracting and counting reader than with showing them ads per se. Amateur bloggers obsessed with their hit counts can fall into these traps just as deeply as professionals can. Money just provides the motive and the means. The motive is that one wants to maximize revenue and therefore starts keeping close tabs on readership. The means is that the very technologies used to calculate ad revenue also supply readership information and therefore tighten the feedback loop between posting and counting. Either way, the effects are troublesome.

One issue is privacy. Most bloggers have visitor logs, even if they don’t necessarily look at them. But using log-analysis tools, whether old-school or new-school, turns the logs into a surveillance system; you can start to profile your users. It was easier in the days before web-service feedreaders, but an author who studies her logs closely can still sometimes tell, for example, what time a particular reader of her blog wakes up in the morning. Of course, if you’re using network-served ads, you’re outsourcing that profiling work to Google, or DoubleClick, or Amazon—each hit on the blog goes into their gigantic data bins for later mining. As law professors, we can debate how serious these blog-based privacy intrusions really are. We can … but we haven’t.

Counting visitors also affects the substance of what we write. I’ve talked to law professor bloggers who’ve looked at their hit counts in deciding which topics to pursue. Some lawprof blogs operate under codes of topics, style, and form. Even those blogs that don’t explicitly think about how to write are influenced by general expectations of what a “law professor blog” looks like, expectations that in part come from profit-maximizing blogs. I suspect that guest-bloggers are sometimes welcomed as much for increasing traffic as for being interesting.

These are all subtle temptations. There’s nothing wrong with writing for a wide audience, but sometimes writing to please oneself or a select few is how important ideas get their start. Every interesting blog starts with its author’s idiosyncrasies. One of the great virtues of the blogosphere is that it lets people pursue their personal intellectual agenda until it finds its audience out in the right part of the long tail. Even if your goal is to maximize readership in the long run, sometimes the best way to do that is to ignore your readership in the short run. (Otherwise, you turn into Gawker.) The easy availability of concrete reader statistics can distract an author from the softer but harder-to-measure attributes that make a good blog satisfying to write and to read.

The curse of easy measurement can likewise affect form. Since many readers arrive from search engines, it makes a certain kind of sense to optimize your pages to make them attractive to search engines. Again, not all such effects are bad. Designing your pages so they’re easy to read helps readers. But what’s attractive to a search engine isn’t always attractive once you arrive. Search-directed redesigns also have redistributive effects; part of what you’re doing is stealing hits from some other poor schmoe out there. And if he retaliates in kind? The search optimization arms race is an ugly affair, one that law professors should be especially wary of.

This last point illustrates the more general state of psychic corruption engendered by too much focus on one’s blog juice. One blogger told me that he no longer links to another site when he criticizes it because he doesn’t want to increase his foes’ PageRank. If he gets to the point of no longer discussing their arguments lest he increase their salience, it will be a sad day for academic discourse. We know from discussions of the U.S. News index, download counts, and other indicia of ranking how corrosive status competitions within a hierarchy can be. Blogging for money sets up conditions of measurement that encourage bloggers to see themselves as taking part in such competitions. Again, the profession of professor is a special calling that should make us wary of joining such Red Queen’s races.

Conclusion

I can’t point to many specific instances of trouble. In part, I don’t want to call out people by name, in part that I haven’t seen any obviously awful fallout from the commercial aspect of legal academic blogging. Perhaps no posts have suffered from sponsorship, but it’s in the nature of such conflicts of interest that I might never see the damage. Indeed, the damage can take place without anyone at all being consciously aware of it.

A lot of professional bloggers do wonderful, ethical, wonderfully ethical work. I also have many friends in the legal academy who blog in part for money. The legal blogosphere is filled with intelligent and ethical people. It may be that all of the ones with ad-laden blogs have thought through these issues, settled on editorial policies that seem to them best, and found ways to counteract the subconscious pressures to sell out. But wouldn’t it be easier and more self-evidently aboveboard for law professors simply not to take blog advertising at all?


UPDATE 2008-01-16: Thoughtful responses from other quarters:

  • Michael Froomkin: “[A]lmost all of these problems (other than the aesthetic and attention costs of the ads themselves) can and do exist with purely non-commercial blogs also.”
  • Ann Bartow: “Linking to certain blogs, or simply maintaining them in your blogroll, can advance agendas with which you strenuously disagree, even if you are generally on the same side politically.”
  • Mike Madison: “It seems to me clearly possible to advocate strongly for broad and full and unconstrained distribution of knowledge and culture, yet to remain intrigued but not necessarily sold on Creative Commons.”
  • Eric Goldman, via email: “I find that being in the AdSense network (1) gives me more cred when I talk to other publishers in the network—I’m not just a law professor, but I’m part of the club, which improves my ability to evangelize my ideas, and (2) helps me understand the way AdSense works in ways that I couldn’t understand if I wasn’t involved, which helps improve my research efforts.”

Disclosure Statement


My basic principle of integrity is a variant of Larry Lessig’s:

Anything I say represents the views of at most one person: me.

Money

I’m a law professor. That means that New York Law School pays me to teach classes and to write scholarship. Like other serious educational institutions, NYLS is committed to academic freedom. No one at the school has ever pressured me to take any particular viewpoint in my work and I’m confident no one ever will. Since I have a day job, I can and do decline any outside work that would clash with my principles, require me to endorse any particular point of view, or bias me in what I choose to say.

I write to contribute to the store of human knowledge, to improve society, and to amuse myself. Sometimes it pays, but so far, it’s never paid well. If I were writing for the money, I’d be an even bigger fool than I look. I treat it as a windfall: a fortunate side effect of writing things that might influece a wider audience than a typical law review article would.

I sometimes speak at conferences and other events. Even when I’ve been invited to address a particular subject, I’ve never been asked to take a particular position. My research budget only goes so far, so I ask for reimbursement for my actual travel expenses where possible. I also accept honoraria, so long as it’s clear that they’re independent of the viewpoint I take.

I am the principal investigator on the Public-Interest Book Search Initiative, which has received outside grant funding, including from Microsoft and the American Library Association. These project funds go toward holding conferences, creating nonpartisan websites, travel and research expenses, and the like—not to me personally. The Information Society Project at Yale, where I was a Resident Fellow and remain an Affiliated Fellow, is sponsored by a range of donors, both nonprofit and private.

I have friends, colleagues, former students, and acquaintances who work or have worked at Microsoft, Apple, Google, Facebook, IBM, the EFF, Creative Commons, and the White House—and on more open-source and free-culture projects than I could keep track of. I don’t let these social connections disrupt my work, or vice-versa.

Blogging

This blog is structurally independent. There are no business relationships that influence on what appears on it.

Editors: I’m the only person with the password to the blog. No one else directs me to say or not to say things on it.

New York Law School: I don’t use school computing resources to maintain the blog and I don’t pay its costs with school funds.

Internet intermediaries: The blog lives on a server administered cooperatively by a group of my friends. It’s hosted on a colocated box at RimuHosting. My DNS is handled by Gandi. I do almost all of my own programming and HTML design; I get informal unpaid help from friends for some of the sysadmin tasks.

Commercial pressure: I pay the hosting, domain registration, and other costs out of my own pocket. I don’t accept advertising, commissions, sponsorships, link exchanges, or any other commercial relationships. For some people, blogging costs (including time and effort) would pose a real hardship if they didn’t take ads. As a a legal academic, I have both the means to subsidize my blogging and a higher obligation to be independent.

Free Culture

Wherever possible, I make my writings freely available under a highly permissive Creative Commons license. The academic publish-or-perish imperative means that sometimes I’ve been forced to agree to more restrictive terms. I’ve assigned the copyrights in some of my non-academic writings, when I felt the good of reaching a wider audience outweighed the harm of restricting access.

I host most of my academic writings for free anonymous download at SSRN and BePress. I self-host my syllabi, slides, and other course materials. I try to use universally accessible formats when distributing my work: principally PDF, HTML, XML, Atom, and Markdown.

Miscellany

I have strong views on many issues. These do not require special disclosure here; the point of this blog and my writings is precisely for me to disclose them, as persuasively as I can. I regularly exercise my fair use rights under copyright law, my experimental use rights under patent law, and my noncommercial (and parodic, fair, etc.) use rights under trademark law.

I use both proprietary and free software, depending on the task and the available options. I’ve contributed to both sorts of projects. I use any number of web services, including Flickr, Gmail, and Facebook. I’m an enthusiastic Mac owner, and yes, I have an iPhone.

Pride of Ownership


From the Times:

The New Century Financial Corporation, for instance, waived its normal credit rules if home buyers put down large down payments, had substantial savings or demonstrated “pride of ownership.” The once-highflying lender, based in Irvine, Calif., filed for bankruptcy last year.

William J. McKay, who was the chief credit officer at New Century, said the company usually made exceptions so homeowners could borrow more money than they qualified for under its rules. In most cases, the decisions raised borrowers’ credit limits by 15 percent, he said.

New Century measured pride of ownership in part by how well buyers maintained their homes relative to their neighbors, Mr. McKay said, adding that this usually was not enough on its own to qualify a borrower for an exception.

Did he say “usually” because sometimes it was enough?

Sam Adams: Brewer, Patriot, and Terrorist


Via BoingBoing comes the story of a five-year old on one of the no-fly lists. Sam Adams gets pulled aside every time he flies. His parents don’t know why, but might I suggest that the TSA is simply showing due caution towards a known group of troublemakers?

Don’t Buy That Kindle


I wrote the following as an op-ed. No one I sent it to wanted to publish it. Oh well. I still like it. I also recently had the chance to play with a Kindle. The interface didn’t make sense, but the overall readability and form factor were good. I stand by my bottom line: the DRM should be a deal-killer for Joe Consumer.

Thinking of buying Amazon’s new electronic-book reader for the book-lover in your life? Think again. With e-books, it’s buyer beware. Amazon’s named the device the Kindle, “to evoke the crackling ignition of knowledge,” in journalist Steven Levy’s phrase. Unfortunately, the name is more revealing than intended.  The only “crackling ignition” most Kindle users will hear is the sound of their e-books going up in flames.

A portable device with a screen as clear as paper but that lets you carry around a whole bookcase sounds like a good idea. Previous e-book readers have been notorious flops, but if anyone could make an easy-to-use gadget with an unbelievably wide selection of titles, it ought to be Amazon. Sadly, they’ve made exactly the same mistake that doomed their predecessors: DRM.

The Kindle’s DRM (an acronym for “digital rights management”) is technology designed to stop you from making unauthorized copies of the e-books you buy. That sounds innocuous enough, until you realize how much is “unauthorized.”  You can’t lend an e-book with DRM to a friend, sell it to a used book store, or tear out pages for a collage. One e-book edition of Alice in Wonderland told users they weren’t allowed to read it aloud.

In order to enforce these restrictions, devices with DRM demand explicit authorization for even the simplest actions. The Kindle won’t show you so much as one page of an e-book with DRM unless it gets a go-ahead from Amazon. The complicated back-and-forth of authorization also creates its own problems. When a key Microsoft server crashed, DRM caused thousands of copies of Windows to be falsely marked as counterfeit.

If the manufacturer gets out of the DRM business, your media are now trapped in an abandoned prison.  Major League Baseball sells downloadable videos of games. It changed DRM systems this year and pulled the plug on the old one. Result: fans who spent hundreds of dollars buying videos can never watch them again.  Ever.  Only after some widely-reported fan outrage did the big leagues offer to replace the now-useless old versions.  The Rocket e-book reader had DRM that worked, more or less.  Then Rocket stopped making e-book readers.  Oops.  Once your current Rocket device breaks, that’s the end of the line for the e-books on it.

Even the e-books Amazon itself sells in the Mobipocket Reader format are useless on the Kindle.   When Amazon announces the Kindle 2.0 a few years from now — call it the Log — what will happen to your Kindle 1.0 books?  Buying a Kindle means making a long-term bet that Amazon will stay in the e-book business and that this e-book reader will succeed where many others have failed.

E-books with DRM are a particularly dangerous trap for libraries.  Many consumers are willing to buy a book and read it once, but libraries are in it for the long haul.  They buy books to preserve history and to meet the reading needs of future generations.  The printed book has done pretty well by them; books from before Gutenberg are still with us.  Kindle e-books will be lucky to last one one-hundredth as long.

The biggest disappointment of the Kindle is that, when it comes to music, Amazon understands the dangers of DRM. Its MP3 download store, which uses no DRM, is delighting music fans and shaking up the digital music business.  With its seamless one-click-to-buy design, Amazon could convince fearful publishers that they need to embrace a digital future, rather than hiding behind the tallest fences technology can erect.   But until Amazon stops smothering the Kindle with DRM, it will produce only sparks, not any real light.

Pun in Search of a Use


“Olive Garden oligarchs”

The B Stands for Bonkers


John Scalzi on Sony BMG’s “DRM-free” experiment:

We’re pleased to announce we are the final major music corporation to release electronic tracks without that pesky DRM! All you have to do is leave your house, go to a selected retail outlet, buy a special card there, go back to your house, scratch off the back of the card to find a code, go to our special MusicPass Web site, enter said code, and download one the 37 titles we have available, from Celine Dion to the Backstreet Boys!

He gives it six months. I’d say three, but the sort of mind that could devise such a Rube Goldbergian scheme to sell non copy-protected music won’t suddenly become reality-based just because the scheme flops utterly.

Or, in the time it takes me to jump through all those hoops, I could just download all 37 of those albums off of Pirate Bay.

That is, the system is far too cumbersome to compete with free for the business of the hardcore infringer. And as for the honest citizen who just wants an MP3 and is willing to pay for it? The MusicPass rigamarole is still more of a pain in the neck than going to the store, buying a CD, and then ripping it to MP3 when you get home. (Oh, wait, that’s what rootkits are for.)

John, you want the last word?

Poor, stupid deluded Sony BMG.

UPDATE January 11: I may be eating some crow on this one. But if I do, oh boy will I be happy about it.

Nine Kinds of Video Quotation


The American University Center for Social Media has released a new study on Quoting Copyrighted Material in User-Generated Video. I’d expect no less from lead authors Pat Aufderheide and Peter Jaszi, but the report has a great breakdown of the sorts of reuse of copyrighted materials that people engage in in their videos. They found nine categories. Here’s danah’s concise summary:

  • Parody and satire: Copyrighted material used in spoofing of popular mass media, celebrities or politicians (Baby Got Book)
  • Negative or critical commentary: Copyrighted material used to communicate a negative message (Metallica Sucks)
  • Positive commentary: Copyrighted material used to communicate a positive message (Steve Irwin Fan Tribute)
  • Quoting to trigger discussion: Copyrighted material used to highlight an issue and prompt public awareness, discourse (Abstinence PSA on Feministing.com)
  • Illustration or example: Copyrighted material used to support a new idea with pictures and sound (Evolution of Dance)
  • Incidental use: Copyrighted material captured as part of capturing something else (Prisoners Dance to Thriller)
  • Personal reportage/diaries: Copyrighted material incorporated into the chronicling of a personal experience (Me on stage with U2… AGAIN!!!)
  • Archiving of vulnerable or revealing materials: Copyrighted material that might have a short life on mainstream media due to controversy (Stephen Colbert’s Speech at the White House Correspondents’ Dinner)
  • Pastiche or collage: Several copyrighted materials incorporated together into a new creation, or in other cases, an imitation of sorts of copyrighted work (Apple Commercial)

The fair use cases for works in different categories inflect very differently. Parody and pastiche, for example, hang their hats on their transformativity. Archiving, on the other hand, is a practice that’s critically depends on its faithfulness—on the promise that the archiver has added nothing to and subtracted nothing from the original. Reflecting on these different sorts of uses is important to understanding the vitality of user-generated video and how best to encourage it.

Redesign of the Arbitrary Time Period Award


I’m hardly a fan of many of SSRN’s practices. Perhaps that gives me the credibility to say that their recent redesign of their email updates of new papers is marvelous. It’s one of the cleanest HTML email formats I’ve ever seen. Of course, marvelous design does little for authors who format their abstracts as single paragraphs, but still, credit where credit is due.

Courtroom View


Over the weekend, I talked to the president of Courtroom View. He’d swung by the law-prof blogger hangout area in the hopes of getting some of us to blog about his company. It was a transparent play, but he was open and friendly, and it is a neat service.

In a nutshell, they go around looking for trials that people want to know about but that aren’t “important” enough to attract news crews. Through a network of local videographers—hired on a project basis to cover particular trials—they provide live streaming coverage of everything that happens in their trials of interest. Exhibits are scanned and provided—also in real time—as PDFs.

The billing varies by the type of event. Specialized Delaware Chancery Court matters of interest to hedge funds have a few subscribers who pay through the nose (pretty much the only way that hedge funds know how to pay). Trials with wider fanbases, as it were, can recoup their costs at a lower price per subscriber.

There oughtn’t be a business opportunity here. Trials ought to be publicly accessible online, immediately, in full streaming video. The streams should be divided into segments and archived online. The audio should be fed through voice-recognition software to create a full transcript and an index to the archived video. All of this should be free, available to anywhere, provided by the courts themselves, and paid for by the government. (It goes without saying that search engines should be invited in.) Pretty soon, that “should” in the sense of “wouldn’t it be nice” will become a “should” in the sense of “we can do this easily and cheaply, so why aren’t we?” Such are the demands of truly open government and a truly open judiciary.

But in the meantime, when such things aren’t yet done as a matter of course, Courtroom View is a step in the right direction. It’s a pure information arbitrage play. I love that they function as a virtual corporation: while they have training for their videographers, and precise instructions as to how to film a trial, they just bring in someone local when there’s a trial as needs filming. I love that they PDF the exhibits. I love that they fly under the radar of the media’s sense of newsworthiness. And I like that they understand network economics and are willing to sell both a great many cheap subscriptions and a few expensive ones.

The Slow Code


The Times ran a story a few days ago that hospitals respond too slowly when patients go into cardiac arrest. Many of those patients have cardiac abnormalities—ventricular fibrillation or pulseless ventricular tachycardia—that are “shockable”; quick defibrillation can restart their hearts. Nonetheless, a recent study found that in 30 percent of cases, it took more than the recommended two minutes from arrest to defibrillation.

Medicine

Many of the more specific findings are unsurprising. It takes longer on nights and weekends (when units are more thinly staffed), when patients entered the hospital with other illnesses (so the staff are less primed to expect the need for rapid defibrillation), and in small hospitals and ones without heart monitors (greater resources typically help the quality of care). In a telling indictment of our health system, the study also found:

Being black also increased the odds of a delay, but the researchers said this finding probably reflected the quality of hospitals in areas where most blacks live and are treated, rather than a decision by medical workers to drag their feet because of a patient’s race.

(Emphasis added.)

The study, the accompanying editorial, and the media coverage go into some of the policy implications. Perhaps counterintuitively, the automated external defibrillation kits now common in offices and public places are in some ways more sophisticated than the crash carts used by hospitals. Because the AEDs are designed for anyone to use, anyone can use them; hospitals often need to wait for doctors or other trained specialists to arrive. In addition to technological improvements, there’s also room for the kind of process improvements that Atul Gawande has harped on. Best practices from hospitals with quick responses could, and should, be adopted at other hospitals, to institutionalize this comparatively simple but effective procedure.

But the mechanics of quality care are only half the story. Some doctors and nurses don’t want to be faster. Or at least not always.

Ethics

Meet the “slow code.” Sometimes a patient with severe dementia or a terminal disease goes into cardiac arrest. The doctors think that resuscitation would be futile; an aggressive intervention would provide only a temporary reprieve or more suffering. But the patient or her representative has refused to provide a do-not-resuscitate order. The doctors and staff will call a code, but they’ll respond slowly. A slow code. Or:

Hospital slang like “slow code” (to suggest a leisurely walk to the bedside), “Hollywood code” (in deference to TV hospital programs) or “light blue code” (an allusion to code blue, the term for a cardiac arrest resuscitation) became public.

The ethics are complicated, but dubious. Medicine subscribes to—and often adheres to—the principle that patient autonomy is paramount. This comforting bright line rule, however, produces many uncomfortable cases. The futile resuscitation is one. Rather than confront the problem head-on, the slow code is a bit of subterfuge. Doctors can leave a grieving family with the belief that all appropriate measures were tried. At the same time, they can spare the patient a few last indignities and agonies. And as for themselves, they can say, with a kind of hair-splitting logic, that they neither ignored a patient’s wishes nor contributed to the continuation of suffering.

It’s not a completely absurd position. DNR ethics are hard, contested, and messy. I could believe that sometimes misleading a patient about your plans has justifiable consequences. For some, death may be less psychologically terrible if it comes without the wrenching decision to sign a DNR order. Other patients are no longer even physically capable of making that decision.

Still, this kind of reasoning gets you only so far. In the end, the code blue is a lie. It’s a humanely motivated lie, but the deception is profound. It’s a lie to the patient: you say you’ll do everything you can to bring them back, and then you let them die. And it’s a lie to yourself. You go through the motions, you really do provide defibrillation, but you pull your punches and pretend that something other than your own willful act is responsible for the predictable consequences. It sits ill with our image of doctors and other medical professionals to think that there are situations where they’ll neither do what we ask them to do nor take a stance for what they actually think is right. The slow code lacks the courage of its convictions, and that essential cowardice may be more telling than any sophisticated moral reasoning about means and ends.

Law

When I heard about slow codes, they struck me as a terrible idea for another, perhaps less idealistic reason. It’s hard for me to imagine a medical practice that would sound worse to a jury.

There’s a whole history here, one that’s in large part a story of growing patient autonomy. Slow codes have developed in parallel with state laws giving patients and families greater rights to determine end-of-life care: particularly, to sign or to withhold DNR orders. Previously, doctors would simply enter the orders themselves. No code, not slow code. The slow code is a physician’s response, a way of getting around the law.

But “getting around the law” is a dangerous business. Especially on such a fraught subject, subverting the clear intent of a patient-autonomy rule looks and smells awful. I’m as far as you can get from a health law expert, but I suspect the potential liability involved is genuinely awful. Not only is a slow code something of a deliberate decision, it’s a decision on which the legislature has specifically said that the physician’s medical judgment is irrelevant. I would not like to be a doctor sued for malpractice over a slow code.

True, there are proof problems. Slow codes are the sort of thing it sounds like medical professionals will talk about amongst themselves, and on anonymous surveys, but never with outsiders. Call it the blue-scrubs wall of silence. And indeed the point of going through the motions in almost good faith is to put on a genuinely convincing show, one that hopefully produces no untoward evidence.

Still, I wonder whether the very mystery of the slow code is not in fact a looming litigation disaster for the profession. A sharp plaintiff’s attorney could invoke the specter of the slow code in almost any end-of-life-care suit. Whether there was a slow code or not, the mere possibility that there was one puts defendant doctors in a poor position from the get-go.

It strikes me a perfect deposition subject. Establish that the defendant has heard of slow codes. Establish that he’s heard that they might be carried out in cases that share some of the characteristics of the one at bar. Establish the the defendant counseled the family that resuscitation in this case would be futile. Congratulations. You’ve now put defense counsel on notice that at trial you can present a thin but plausible argument that your client died as the result of a deliberate slow code. Of course, you’ll need to question the defendant on this theory, which means that the defendant’s knowledge of slow codes will be a relevant subject for cross-examination. That can’t possibly look good to the jury. You’ve just dealt yourself a few excellent cards for the forthcoming settlement negotiations.


I always love getting comments, but I’d particularly welcome informed thoughts about any of the three angles to this post.

Reverse Network Effect


Ben Brown on Facebook:

For me, the big problem with Facebook is the plain fact that it’s an extremely annoying piece of software. I could go on for paragraphs and paragraphs about all the stupid, nasty, and sometimes scary things Facebook has done, but that would be only slightly better than having to experience them all yourself. The central issue for me is that Facebook sufferes a severe reverse network effect: the more people who join, the less useful it becomes.

Before I quit, I was “connecting” with was an increasingly diverse and undifferentiated group of people ranging from senior executives at various large and important sounding companies to my best friend’s drunk little brother who never moved out of his home town and now grows pot and fights pitbulls in his basement. (Read about the collision of “fronts”.) I mean, it is great that I can inform such a wide and diverse audience about every minute change to my personal metadata, but is this something I ever really needed or wanted? And when the plugin applications came along, and then Beacon, the signal to noise ratio was thrown totally out of whack. Whispering endlessly into a room crowded with everyone I’ve ever met while simultaneously being badgered by evil robotic clone versions of those same people that insistently try to trick me into buy things from Overstock.com HAS NEVER BEEN SO MUCH FUN!!!

It is important to remember that sites like Facebook are pieces of software that we can choose to use or not use, just like we choose to use Firefox or Safari or neither. There is a perception that we are obligated to use social network sites like Facebook or MySpace because our friends start using them, and if we don’t, we will functionally lose the friends who do - every important announcement, party invite, and funny video will be locked away from us. This is a very dangerous way to think! Joining and being a part of Facebook is absolutely not an inevitability. If a piece of social software causes people who do not choose to use it to become ostracized, there is a serious flaw in that piece of software.

(Mickey Kaus-style emphasis added)