I think I'm not alone in saying that Dan Markel's murder has thrown me. In fact, I know that from attending his memorial this past Monday at SEALS. The sudden death of one so young and vibrant is always shocking, and a violent murder all the more so. Amongst all the strangeness, one of the things that still feels strange is the way I learned about Danny's death: Facebook.
I've been hesitant to post this because it feels too personal-- transgressive of rules I can't articulate but which remain potent. But if I have taken anything from reading and listening to people's reminiscences of Danny, it's that he would have said "Just post it, Usha. Just blog. Start a conversation."
1. The discovery. I heard about Danny's death via text-- basically out-of-the-blue news that he'd been shot and killed. Nothing more. Incredulous, I went to Google. Nothing. Nothing. But on Danny's Facebook wall kept appearing post after post saying farewell, offering condolences. Thankfully someone had asked in a comment "Wait, what happened?" A comment thread elucidated the bare (and untrue) fact that it was a home intrusion.
2. The quest for information: For two days I kept returning to Danny's page, reading messages and grasping at rumors and details. I mostly lurk on Facebook, looking at photos and keeping up with people's lives. Suddenly, however, Facebook had a non-frivolous function: it was an efficient and effective way for an impromptu community based around one person to communicate news on the murder investigation and information about memorials, funds established for the boys, and funeral arrangements.
3. The grief. And here's the heart of it. Danny's Facebook page became this impromptu site for mourning and outpourings of grief. Many--indeed, most--of the messages addressed Danny personally and unself-consciously: "I will miss you. The last time I saw you...." Other messages voiced the awkwardness I felt, and went along the lines of messages of "This seems like an odd place to express my feelings, but Danny loved social media so much..." and went on to share their story. One,which particularly stopped me, was addressed to Danny's beloved sons. The writer averred that someday they would read these testimonials, which would let them know how important and beloved a man their father was.
Is this grief today? Facebook allows you to meorialize a deceased person's account. The account remains in a sort of suspended state: no friends or photos can be added, but the deceased's friends can share memories and even "send private messages to the deceased person." I have known only a few friends who have died with Facebook pages. They have remained, and on certain dates (often birthdays), their friends post tributes or just short notes of remembrance. I think Facebook's policy is that they can remain indefinitely. Which is to me equal parts comforting and disconcerting.
I look at Facebook a little differently now. For one, I can see that it is a powerful, perhaps uniquely efficient way for disparate individuals united in their caring for one person to share information in times of crisis. It is also a private community created by the deceased himself that can share their grief. That fact is important, I think. That Danny himself had chosen his friends meant that implicitly we could be trusted. The private nature of his page was especially important in a high profile murder case: I was contacted by a few members of the press. I am sure that on a public forum many would have refrained from posting at all.
Still, I was uneasy expressing myself to that community. I felt like I should say something, but I wasn't sure exactly what to say, or to whom I was speaking. Ultimately (wouldn't you know) I blogged and posted that link to Danny's page. While I knew Danny from starting law teaching at the same time, most of our recent interactions had been blogging-focused, so that seemed right. And Danny was never one to shy away from difficult or uncomfortable topics, so here's this question is a tribute to him: has Facebook changed the manner in which we grieve?
The last few days have seen a firestorm of protest on social media outlets such as Facebook and Twitter due to the decision of the Susan G. Komen for the Cure foundation to eliminate grant funding to Planned Parenthood for breast cancer screening. I saw both sides of this controversy as branding problems.
Ten, fifteen years ago, Komen was building a very successful brand. Consumers generally thought of Komen as the charity started by the sister of a young woman who lost her fight with breast cancer and the charity that hosts the 5K Race for the Cure fun runs. (I myself placed 3rd in my age group in the 1995 Lubbock, Texas Race for the Cure.) In the past decade, Komen has become a wildly successful charity, licensing its "pink ribbon" logo to numerous types of consumer products, flooding the month of October in pink. (I myself have a Dyson pink ribbon vacuum.) But, Komen has been involved in several PR crises. First, consumer groups, crying "pinkwashing," criticized Komen for taking money from firms to put the pink ribbon on products that may be unhealthy (KFC) or even carcinogenic (perfume with known carcinogens, yogurt with hormones). Then, Komen was criticized for vigorously defending its "race for the cure" trademark against small charitable groups raising money for various cancers and other diseases. These controversies have spawned various anti-Komen websites and a new documentary on the politicization of breast cancer awareness, Pink Ribbon, Inc.
The decision to cut off funding to PP poses another branding threat to Komen. PP is a health care provider to millions of women, mostly women with lower incomes. Komen risks being seen as interested in breast cancer health of women who have their own gynecologist, have health insurance, eat Yoplait, do fun runs and have Dyson vacuum cleaners. Komen officials have couched the decision in terms of "new granting writing guidelines" and not giving grants to organizations "under investigation," but pretty much everyone agrees that the decision was made because of PP's abortion services, either out of donor pressure, political pressure or the preferences of senior officers there.
This leads to PP's branding problem. PP wants the world to know that this decision affects its efforts to provide breast cancer screenings, a major service it provides. Abortion procedures constitute 3% of its services. (Screening for STD's, birth control and cancer screenings are its big three services.) But, many equate the name "Planned Parenthood" with abortion, possibly because PP performs about 25% of abortions in the U.S. (330,000 out of 1.2 million, according to the census). But, PP provides many other critical health care services, mainly to those with lower incomes who don't have private doctors or private insurance. But, PP definitely doesn't downplay abortion on its websites and even seems to highlight it. Abortion is generally listed first in categories or lists of its services -- which are in alphabetical order. A commercial firm would highlight its big stuff. Now, politically, the folks at PP may want to keep it at the front, to make a point that it isn't hiding its abortion services, that abortion is legal and not a back-alley business, etc. But, if it wants to present itself as a full-service health care provider for women, then PP might want to highlight its bread-and-butter services and develop a more general health care brand.
Of course, Komen and private donors are free to direct their dollars however they choose and may prefer a zero-tolerance policy to abortion. However, as an organization dependent on donor dollars itself, Komen has a lot of thinking to do about its own brand.
UPDATE: Right after I posted this, I received a notification that Komen has reversed itself on the decision. Press release here. The Facebook is mightier than the sword.
So, just as I was getting a handle on moderation with the timesuck that is Facebook, a friend tells me about Pinterest. If Facebook is a timesuck, then Pinterest is a black hole: a very pretty, tasteful, affirming black hole.
So, what is Pinterest? I'm still not sure. It's official description is an "online bulletin board." In fact, each user (you have to be invited or get on the waiting list) may have numerous "boards," categorized by topic. Then, users "pin" images to their boards. These may be photos by the user, but almost all the time these are photos that are captured elsewhere on the web with the "pin it" app. The user may comment on the image or just pin it. When you log on to Pinterest, you are shown all the images that users have pinned on their boards -- the users you are "following" or the ones that Pinterest automatically had you follow when you joined based on your interests. If you like another user's image, you can repin it to your board. Generally, you will follow your friends, possibly other users you encounter, and then I sort of get confused.
What are people pinning? The folks I follow (and me) generally pin recipes, design ideas, fashion ideas, kids' ideas, and crafts. There are a lot of topics. I haven't pinned that much. I'm more of a browser than a pinner. I still am not quite sure what the point is except to have a pretty website to scroll through every day with photos of things most of my friends (and me) like -- a recipe to turn a watermelon into an open-mouth shark with fruit salad coming out, instructions on how to turn your builder-quality bathroom mirror into a framed thing of beauty, witty poster sayings, crock-pot recipes. what's not to like? And, unlike Facebook, there is no pressure to be witty, no requirement to read posts about other people's kids, no fear of running into extreme politics, and no fear of old sweethearts seeing your beach pictures. If we are putting our shiniest face forward on FB, then on Pinterest you are putting the shiniest face forward that you can conjure up from design/fashion/food images -- this is what my house would like like and the cooking smells it would be filled with if I had unlimited time and money.
So, now to the point. How does this make money? So far, Cold Brew Labs, headquartered in Silicon Valley, has raised $27 million in funding based on a $200 million valuation. Hmmm. If you look on Pinterest, there is no advertising. And ads would completely ruin the visuals. There is some sense out there that Pinterest may be making money based on links back to merchants. So, if I decide I like a dress I see on a website, and pin that to my board, then someone clicks back to that website, there is some opportunity for revenue there. There also seem to be commercial folks joining Pinterest. A radio station we listen to here in Champaign has been mentioning (all the time) that it has joined Pinterest. The radio station is nonprofit, but surely there are forprofit firms joining Pinterest. There are a lot of Etsy folks on there. There's also the possibility that some users who create boards like "New Dresses From X That I Love" are really X employees. Then the "ads" would be hard to distinguish from "user pins," wouldn't distract from the visual flow and would generate revenue. But this is guessing.
I have two problems with Pinterest. First, I can't really figure out how to use the site. I can't find my own friends that I know are on it. (Unlike FB, the "find friends" search engine can't find squat.) More importantly, I'm worried it has copyright problems. People are pinning anything they want from anywhere they want. If the pin comes directly from the original image on the web, then under the image, the link appears, but that's it. But who knows what images are going up without any sort of attribution. Here are the Terms and here is the Copyright Policy. Basically, users promise not to violate copyright when they pin stuff up there, and Cold Brew Labs promises to consider, in its discretion, any complaints that users have violated copyright.
Besides that, I did make the slow-cooker basalmic pork tenderloin, and it was good.
The last two weeks have witnessed dramatic victories against two very different lawbreaking networks. First the death of Bin Laden removed the leader of al Qaeda. Second, the conviction of Raj Rajaratnam represented a major victory for prosecutors against the so-called expert insider trading networks. Although the two lawbreaking networks have a multitude of differences – in terms of social harm, motivations, and structure – they also have important similarities.
For one thing, both terror networks and insider trading networks present an opportunity to study social networks in a rigorous manner. “Networks” are more than just loose metaphor, but instead the subject of the emerging field of network theory that borrows from and links computer science, sociology, economics and a host of other fields. “Emerging” does not mean new: some of the germinal research stretches back over four decades. For example Granovetter’s work on “weak ties” in sociology. Mark Lemley and David McGowan authored a wonderful piece on network effects and law over 10 years ago and the legal literature continues to blossom (from Aviram to Zaring). Network theory has arrived.
And it is being put to use. A number of years ago, media reports suggested that the U.S. intelligence agencies were seeking to use network theory to crack Al Qaeda (see here for a law review article by Christopher Borgen on network theory and terrorism). The extent to which financial regulators and prosecutors have done the same with respect to insider trading is not clear, although scholars have recently suggested new potential approaches.
We may not know for a long time the extent to which network theory is influencing law enforcement. You can understand that intelligence and law enforcement would be unwilling to disclose the methods they use to catch bad guys. But the secrecy means that their methods do not enjoy the benefits – one could even say network effects – of being subject to the scrutiny of a larger community. Observers could help answer vital questions, such as “how effective are these efforts against lawbreakers?” and “could they be improved?” According to Linus’s Law: “given enough eyeballs, all bugs are shallow.” Aside from questions about efficacy, there are lingering and legitimate concerns about the implications of national security surveillance over internet communications.
But even the information we have learned about the two recent victories against anti-social networks leads to some interesting, if tentative observations. First, the ultimate value of these government operations is not in traditional deterrence alone, but in disrupting networks. In other words, successful operations against networks rely not only on crude deterrence of criminal behavior by scaring off would-be criminals. After all, it isn’t clear that a jihadist will be sobered by Bin Laden’s fate. By contrast, one thing that does disrupt networks is interfering with their capacity to send signals. Driving bad guys off the net seriously interferes with their ability to conduct business. From news reports, it doesn’t look like Bin Laden was all that successful in managing operations without an internet connection or a phone line. (Some reports suggest that the one time he did use a phone contributed to his location by U.S. intelligence.) Of course, government surveillance is thwarted not only by encryption, but by the daunting task of finding a needle in a haystack of data. Old-fashioned informants will still prove a critical tool.
Indeed media reports suggest that the government is heavily relying on informants in cracking the expert insider trading networks. From the perspective of law enforcement, this is important not only because it may lead to prosecutions, but also because it might disrupt the thing that these networks most rely on: trust.
So network theory suggests that we pay more attention to the marginalia of the Rajaratnam story. It is not the conviction alone that matters. It also argues for looking at other policy tools – such as a use of bounties in corporate crime – in another dimension, namely engendering distrust and thwarting the development of illegal networks. Of course, bounties for corporate crime and promoting snitching can create their own perverse incentives and pernicious effects. (Eleanor Brown penned an interesting essay on snitching, immigration, and terrorism that uses network theory.)
Another problem with a broader use of these tools is that they don’t always yield headline grabbing successes. No one sees the insider trading or terror attacks or law breaking that didn’t happen. The political economy of deterrence rewards prosecutors for victories in the courtroom, not necessarily for crime prevented.
Still, the events of the last week should give new life to study of network theory. There is evidence that network theory has become white hot. Consider this graph (from Google’s nifty Ngram tool) that plots the rising use of “network effect” compared to “deterrence effect” in books from1970 to mid 2007.
One can now also see a lot of those neat network graphs (see below) in news reporting.
Of course, the popularization of theory also threatens to reduce the intellectual rigor. Let’s hope the network effects of this line of inquiry are positive.
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If there is one thing that can distract me from a crushing load of commitments, it is superheroes. One of my favorite colleagues, sent me a link to a post on "Superhero Organizations and Business Entities". The post deals with the question of "what kind of business entity would be best for superhero organizations like the Avengers or the Justice League."
When I get a free moment, I'll add my own nuanced analysis to this under-theorized field to examine the embedded tensions. For now, several big ticket items are missing from this opening volley of a post. The big issues with superhero organizations do not concern limited liability (which may be surprising given the tendency of superteams to regularly level Metropolis, Gotham, or NY). Instead, my empirical data suggest that the most common issues are control ("Will Captain America remain team leader?"), the admission of new members ("Should the Avengers roster be capped at seven?"), and the expulsion of members ("Green Arrow is a loose cannon!").
Open source and peer production ideas can also improve law teaching. There have been some very helpful trends already in this direction. Many legal scholars post articles on teaching and even some suggested exercises on SSRN. Larry Cunningham (GW) edits the SSRN 'Law Educator' e-Journal. In addition, there has been some sharing of syllabi on the AALS New Law Profess listserv.
It might be time to think about a separate non-commercial website devoted just to sharing teaching materials. SSRN is great, but the disadvantages are that teaching materials can get lost in the mass of scholarly papers, and professors might appreciate a password-protected site that students can’t access. But a new website could have many advantages of SSRN. For example, download counts could be used as one metric of the success of teaching materials. This could be enhanced with a system for tracking how many professors adopted materials. These aren't the only metrics for what makes a good teacher, but they could help.
Of course, professors need to take care not just to cut and paste from materials. I remember a story from about two years ago of a state bar disciplining an adjunct for cutting and pasting from old exams.
Perhaps there is a site already out there of which I'm not aware.
Some of my previous posts explored the implications of the Open Source movement for financial regulation. Other legal scholars in the corporate field are taking similar ideas on peer production and collaboration in provocative directions.
George Triantis (Harvard) has set up a "Contracts Wiki" to allow transactional attorneys to collaborate and design better agreements. The theory is if peer production works in software (like Linux), it should work for transactional documents too. They are just different kinds of code. This project is not only an interesting scholarly endeavor, it may also provide real value for both lawyers, particularly in smaller firms, and their clients.
The wiki will only pay dividends though if a sufficient number of practitioners participate.
If you are interested here is an old link to the wiki. I understand from Professor Triantis that the wiki is being bbeta tested with a small group of practitioners, but will go live and be open to a broader public sometime in the Spring. I'll ask one of the regular bloggers at the Conglomerate to post a notice and a new link then.
Two years ago, I blogged about LinkedIn in response to Seth Godin's Web 2.0 Traffic Watch List: "Perhaps the most surprising to me is that LinkedIn is listed among the top 20. I created a profile on LinkedIn a long time ago after getting an invitation from someone, but I never use the service."
It's amazing to me that we were talking about Web 2.0 two years ago (time flies!), and that I was already blogging about how I had created a profile on LinkedIn "a long time ago." Since that post, I have not increased my usage of LinkedIn, but I have accumulated the inevitable small collection of contacts simply by accepting (most of) the invitations that came my way.
Recently, some of those invitations came from law professors I admired and I started thinking more about the potential utility of LinkedIn. Why should I put any time into this? What's the payoff? One of my existing contacts on LinkedIn is my oldest daughter, and she describes LinkedIn as "Facebook for grownups." That helped me to think about it a bit more clearly because I have seen my children do all sorts of useful things on Facebook, most importantly for present purposes, maintaining long-distance relationships that were formed in the real world. Perhaps LinkedIn would help me keep up with some of the many friends I have made (and lost track of) in my travels? Or with former students?
That seemed like it would be worth a try, so I updated and expanded my bare-bones profile, and this morning I issued a raft of invitations to some of my Gmail contacts who are already enrolled in LinkedIn. I have already doubled the size of my immediate network and received some fun emails back. So that's a nice first step.
What I would like to know more about is how people actually use this service. Please feel free to share your experiences in the comments. In particular, do you use "Groups"? After updating my profile, I joined all of the relevant alumni groups, then on a lark, I created a group of my own: "Readers of The Conglomerate." At the moment -- a few minutes post-creation -- this group has one member. So if you are a reader and would like to connect, please join!
Finally, I would be particularly interested to learn from law professors whether they have used LinkedIn to maintain connections with former students. One of my regrets in life is that I have lost track of so many students whom I genuinely enjoyed.
Type "Facebook Fatigue" into Google, and you get 292,000 results. More or less.
Though I have a Facebook profile, I don't use it. And I am not a student, so I am not eligible to use Lymabean. But I am blogging about Lymabean because of a peculiarly resonant (for me) aspect of the founding story. You see, Wurtz graduated from BYU in accounting, and he said one of the reasons he started Lymabean was because he "just wanted to get out of accounting."
Been there, Jeff.