Certainly textual and citation analysis approaches are not new. The scientific community has been analyzing citation patterns to determine influence since the 1960s and the development of the Science Citation Index. In the law, Shepherd’s and KeyCite are two competing methods to help determine the influence of legal cases through citation analysis.

My idea, though, is to use similar techniques to try to measure the impact of new technologies on both courtroom decisions, both substantively and–for lack of a better term–stylistically.

As an example of the first concept, X-rays were developed around 1895 by Wilhelm Röntgen. How soon after their development did courts begin to refer to them? CCTV (surveillance cameras) were first used in the U.S. around 1968–how long was it before courts began to grapple with the issues? Did it take more or less time than with X-rays? (Obviously I would need a number of other examples.)

My second concept is to see if, for example, the number of citations in opinions–or the length of opinions, for that matter–increased or decreased as technology changed. Did the introduction of typewriters correlate to increases in opinion length or number of opinions per year per judge? Did the development of citation indexing systems like KeyCite increase the number of citations? Have online and electronic systems increased the number of citations? Similarly, have the types of citations changed? (One way to grossly measure this would be to look at how old the cases cited are when viewed from the perspective of the new decision.)

Here’s a few examples of related ideas:

• Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court
• The Hazards of Precedent: A Parameterization of Legal Change
• History of Citation Indexing (from Thomson Reuters)

Thoughts? Opinions? Anyone done similar work to this, perhaps in another field? What tools might work best?

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• Harvard reference or citation generator (dairyscience.info)
• Papers with more references are cited more often (ebiquity.umbc.edu)
• Social citations: using Mendeley API to measure citation readership (iphylo.blogspot.com)
• Impact Factors (healthlinks.washington.edu)

Measuring the impact of technology on the law is from in propria persona, © 2010 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

The main idea is that each side should take charge of their own fate, in a kind of courtroom analog to capitalism and free-market individualism, and that this self-determination is the best way to produce fairness and truth. The judge serves merely as the umpire ensuring each side follows the rules, which themselves are designed to create a level playing field between the parties. The jury must decide whose facts to believe.

This presents problems when the facts at issue are steeped in scientific dispute. In the American system (and, perhaps to a lesser extent, in all countries following the Anglo-American legal approach), science and scientific evidence emerges and is interpreted through the actions of the parties involved. Expert witnesses testify for a particular side, and are employed by a particular side.

This also presents some problems for scientific experts, who have historically grounded themselves in disinterestedness and objectivity. How does one keep out the influence of one’s employer, either out of self-interestedness or just a lack of access to anything but what one’s own side provides?

While the U.S. judicial system has developed a number of methods to deal with these problems–from various rules of evidence, to standards for judging scientific evidence from Frye to Daubert–there are still problems for scientific expertise in the courtroom. As just one example, how do you enforce rules against perjury if an expert is testifying to a theory? How are lay juries–consisting of specifically of people unfamiliar with the evidence, the case, and the facts–supposed to evaluate and decide between competing scientific claims?

Scientists and others have come up with a number of suggestions, but all of them have involved too many changes to the process for lawyers and judges to agree on implementing them. Appointing experts as direct advisors to the court, for example, interferes with traditional ideas of the judge as a neutral umpire, merely refereeing each side’s zealous advocacy. (Contrast this with European methods, which place approved experts in direct service to the judge, who, incidentally, often gathers evidence as well as overseeing the trial.) Putting scientists into the jury isn’t too popular with lawyers either–typically, special knowledge disqualifies you instead, because lawyers don’t want jurors with preconceived knowledge or ideas.

But at the very least, why not allow experts–jurors who are “people having ordinary skill in the art”–in the jury on patent trials? Or how about eliminating juries for patent trials entirely? (England, our common-law mother, did this already.) But the Constitution can make such distinctions between types of cases problematic, and in any case, lawyers and judges are invested in the current system. Questioning its fairness in one kind of case might lead to questioning it in other situations.

So what to do? How can juries possibly decide between equally compelling and apparently valid scientific theories? Do we need to change the system? Or can lay juries do just fine, despite the scientific complexities of many cases?

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Juries and scientific expertise is from in propria persona, © 2010 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

MicroMash targets people like me who prefer to study on our own time and may well work while preparing (as I have been doing). They also have a computer-based MBE study system that claims to adapt to your level of success with particular areas, focusing on your weaknesses (I liked this). As it turns out, though, study materials are entirely paper based, and consist of some 40 pounds of outlines and books. There did not seem to be any real online study materials and very few, if any, audio lectures. Nothing was particularly portable, and the Web-based MBE question system requires an Internet connection to function. (I didn’t like this.) Cost is roughly $1,600 for MBE+California, with a money-back guarantee.

BarMax is somewhat similar in focus, but builds itself around an iPod Touch/iPhone app. It is, I think, the most expensive app in the Apple app store: $999 for the California focused app, no real refunds available (but you keep access forever, so if you need to take the exam again, you keep your materials). It comes with no paper at all, although it does have Word documents (outlines, etc.) that you can print out. Everything else is on the iPod, including outlines and hours of audio lectures. The lectures could use better audio quality, but they seem to cover the most important areas of the law for the exam in a relatively quick and efficient form. It also has a built-in flash card system and MBE test question section that works well.

Most importantly for me, BarMax is portable. My most effective studying came from long walks all around my neighborhood, focusing on the lectures and taking some notes as I went, then following up with the written materials later, along with MBE question review and practice exams.

MicroMash had good materials, but dumping 40 pounds of books on me as my only tool for studying was simply not practical for the way I personally work. BarMax, even if it is new and more experimental, fit my study style much, much better. As a result, I’ve been using BarMax every day for the last month+, but I returned MicroMash for a full refund after a week of trying to use it.

In short: I recommend BarMax. Good concept, good (not perfect yet) execution (bettwe sound would be good, for example), effective for multiple ways of studying (other than for those who prefer paper books–I would recommend MicroMash for you).

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The bar approaches: BarMax vs. MicroMash is from in propria persona, © 2010 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

Who better than those snarky peeps at Woot to call them on the implications of such a scheme?

So, The AP, here we are. Just to be fair about this, we’ve used your very own pricing scheme to calculate how much you owe us. By looking through the link above, and comparing your post with our original letter, we’ve figured you owe us roughly $17.50 for the content you borrowed from our blog post, which, by the way, we worked very very hard to create.

via Woot® : One Day, One Deal™.

One might argue, I suppose, that somehow the material produced by “the media” is different from what the rest of us produce. While certainly such a scheme could be implemented, it hardly seems fair. More importantly at the moment, of course, copyright law makes no such distinction (even if some have attempted to embrace/extend the so-called “hot news” doctrine to create the potential basis for such a distinction).

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Implications of the AP licensing scheme is from in propria persona, © 2010 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

But with intellectual property, even more than with traditional goods, one encounters dissimilar products that are not substitutable. Shubha Ghosh, in The Fable of the Commons: Exclusivity and the Construction of Intellectual Property Markets, uses songs to illustrate this: one song is both the same as and different from another song, but they are not perfectly interchangeable. The same may be said for some chemical and industrial processes. As a result, the intellectual property market cannot allocate goods based on price alone, but also on other characteristics (like quality or type of product). This does not lead to efficient trades or distributional balance.

In addition, intellectual property markets are deeply concerned with the licensing of rights, such as royalties and similar pricing arrangements. The complexity–with dimensions going beyond simple price–means often there is an asymmetry in information and strategic behavior by creators and users. The result is inefficient and undesirable distribution.

As a final example, most analyses of ideal markets suggest that buyers and sellers will reach agreement, but such analyses typically ignore situations in which a customer’s life is at stake–leading to a tendency to pay any price to get a product. There is, notes Ghosh, “something troubling” about this situation. But it is not necessarily easy to select a better alternative to these market-oriented models–somehow justice needs to factor into the model, but how?

The marketplace of ideas is from in propria persona, © 2010 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

Much as blogs have bitten into the news business and YouTube has challenged television, digital self-publishing is creating a powerful new niche in books that's threatening the traditional industry. Once derided as “vanity” titles by the publishing establishment, self-published books suddenly are able to thrive by circumventing the establishment.

via Digital Self-Publishing Shakes Up Traditional Book Industry – WSJ.com.

It’s finally possible to skip the traditional publishers altogether, publishing yourself (via Amazon, for example), and get discovered by fans directly! Of course, you’re own your own with editing (contract it out? ask the significant other?) and advertising (social media, anyone?), and there are no advances on your sales.

On the other hand, there’s no publisher telling you what you can and cannot say (but then again, there’s no publisher/editor telling you what you should say and shouldn’t say…), and no sending your manuscript in–and then never hearing back with more than a form letter.

Instead, you write great stuff, put it up through Amazon, some fans discover you and… presto! You’re rich & famous! Amazon’s discovery algorithms help with this (the more people read and like your work, the more often it gets recommended), but you still need to get that critical mass started (which is one thing a publisher can do for you).

So this is great for fiction. I wonder if it has any possibilities for academic work? How would a department rate your self-published book in terms of tenure decisions? By number of copies sold? (But academic works never sell much.) Somehow, I suspect the academic world will be very, very slow to accept self-published works as “real” publications…

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The new world of self-publishing: it’s not just for vanity anymore! is from in propria persona, © 2010 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

He’s boldly calling for an authenticated registry and repository of all primary legal materials in the United States available to the public at no cost. What does that include? Statutes, legal opinions, regulations and other rules that govern the daily lives of citizens, right down to permits issued by the local water district. Malamud has a name for his giant database, Law.gov.

“We are a nation of laws, but the laws are not publicly available,” Malamud said recently on a visit to Chicago. “That’s a problem of democracy and justice.”

via Time for free and easy access to legal information – chicagotribune.com.

The idea, according to the Public.Resource.Org description, is to “provide bulk data and feeds … to use the raw materials of our democracy.” What are these raw materials? Basically, all materials that have the force of law, including:

• briefs and opinions from the judiciary;
• reports, hearings, and laws from the legislative branch;
• and regulations, audits, grants, and other materials from the executive branch.

As an academic legal researcher currently disconnected from a law school, any access to a broader swath of legal information and materials is a win for me personally. I think access by everyone to such resources is also a good thing (even if those unfamiliar with reading and interpreting legal materials can often misinterpret what they are reading…).

I would love to see such a thing extend beyond federal materials (which are reasonably accessible online now). Getting 50 states (and various territories) to cooperate with a central repository would be challenging — but brilliant. Hopefully Malamud and the various co-conveners can pull it off!

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Why not an open-access Law.gov to access public legal materials? is from in propria persona, © 2010 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

I’ve just finished Adrian Johns’ 2009 book, Piracy: The Intellectual Property Wars from Gutenberg to Gates, a 500+ page magnum opus stretching from the 1600s to the present. Johns is a noted University of Chicago historian, and his book is a fascinating and essential read for anyone interested in the history of the term “intellectual property” and development of the modern copyright and patent systems.

via Required Reading: Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates | Electronic Frontier Foundation.

Of particular interest:

• The story of the rise of the term “intellectual property” in the 1870s and its connection to patents.
• How the United States once  refusing to recognize the copyrights of foreign (mainly British) authors, and gained a reputation as a “pirate nation.”
• Early anti-piracy efforts in 1903, aimed at sheet music reprinters.

Sounds like a good read!

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Looking forward to reading the new Adrian Johns book is from in propria persona, © 2010 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

The main point of his article is to combat the denigrating myth that credits the Greeks for “all that was noteworthy in Arabic science” (note that the term “science” itself is potentially controversial, but I will keep it for the sake of its utility). In contrast, Haq argues that the Arabic translations of Greek texts, begun in earnest in the ninth century and heavily relied upon by European scholars beginning in the twelfth, were far more than simple restatements of Greek texts in the Arabic language. Haq says, instead, that the process was a creative act, and that is should be no surprise as such that Christian European scholars preferred the Arabic texts, even when the original Greek ones were available, because of the Arabic clarifications, improvements, and recasting.

Haq also takes issue with the claim that Islam‘s scientific scholars were marginalized by mainstream Muslim society, and that opposition by “orthodox” religious leaders like Abu Hamid al-Ghazali in the 12th century effectively ended scientific pursuits in the Islamic world. Instead, says Haq, Islamic science continued to flourish in an “open marketplace” of ideas until fading by the time of “the so-called scientific revolution in western Europe.”

Absent from Haq’s article is much of an explanation of why Islamic translators sought to recast ancient Greek texts into Arabic, or why this pursuit was supported by the Abbasid elites.

Similarly, although Haq rejects the idea that Islamic theological and philosophical orthodoxy eventually led to the setting of Islam’s “scientific star,” he does not provide a robust alternative explanation, other than to point to “several severe reversals” experienced by political Islam, including the Christian reconquista in Spain and Hulagu Khan‘s sacking of Baghdad and capture of Damascus in the thirteenth century.

So if medieval Islamic culture was so conducive to scientific pursuits, why didn’t it last? And why shouldn’t contemporary Islamic society be equally supportive of science?

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Was medieval Islamic culture inhospitable to science? is from in propria persona, © 2010 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.

In “Islam and Science,” an article written for the Oxford Handbook of Religion and Science, Nasr attempts to give a broad overview of the relationship of Islam to modern science and technology.

First, he criticizes the approach of viewing Western science as a continuation of Islamic science, and therefore accepting it uncritically as fitting in well with Islamic thought. Nasr points out, however, that this perspective ignores the “agnostic science of nature” in the Western tradition, along with the “shift of paradigm” during the European Scientific Revolution that sharply distinguishes modern Western science from Islamic science.

Second, in a related manner, he criticizes the acceptance of Western science as “value-free,” as opposed to contemporary perspectives of science — even in the West — of science as based “on a particular value system and a specific world-view.” The implicit value system of Western science, he suggests, needs instead to be criticized “from the Islamic point of view.”

Importantly for Nasr is the question of the values and especially the ethics of science. He believes that “knowledge and its implications cannot evade ethical implications.” Modern science attempts to relegate alternative claims to knowledge, especially ethical claims and most especially knowledge based on religion, to “poetry, myth, or, even worse, superstition.”

He suggests that Islam needs to realize that modern science is but “a science of nature,” not the science of nature. He posits a “positive Islamic critique of modern science” that “maintain[s] the traditional Islamic intellectual space … to which Islamic ethics corresponds, withing denying the legitimacy of modern sciences within their own confines.”

Most importantly for Nasr, Muslims should not look to science to confirm metaphysical beliefs, but rather leave to science claims only about the natural world, not the supernatural one. He asks Muslims to be wary of “the prevalent view … from which God is simply absent, no matter how many modern scientists believe individually in him.” Modern Islamic scholars, he argues, unlike their traditional counterparts in the past, are “particularly bereft of responses” to the question of Transcendent Cause and the role of God. For him, older Islamic though had better answers to such questions, and this is why so many scholars are more interested in older relations between Islam and science than in contemporary ones.

So what should be done? First, he wants Muslims to stop seeing themselves as inferior to Western science and technology, and to instead approach it as at least an equal. Again, he especially suggests that Islam and its ethics has a powerful rejoinder to Western science, which while it may put a man on the Moon still cannot stop teenagers from killing each other.

Second, he recommends there be an in-depth study of traditional Islamic sources, from the Qur’an to the traditional works on the sciences and philosophy. The goal, he argues, is to create an “Islamic world-view and especially [an] Islamic concept of nature and the sciences of nature.” He wants scholars to do this within the framework of Islamic tradition, not through simple readings of decontextualized Qur’anic verses. Third, he suggests that more Muslim students should study “pure” sciences and not technology. He believes the Muslim world already has sufficient numbers of engineers, but that what it really needs are more scientists who can see beyond immediate utility.

Fundamentally, Nasr believes that “[o]nly a science that issues from the source of all knowledge, from the Knower … and cultivated in an intellectual universe in which the spiritual and the ethical are not mere subjectivisms but fundamental features … can save humanity.” He suggests that Islamic science has the potential to not only create a “veritable Islamic science” that would help the Muslim world, but also to create a science for “those all over the globe who seek a science of nature and a technology which could help men and women to live at peace with themselves, with the natural environment, and above all, with that Divine Reality Who is the ontological source of both man and the cosmos.”

A few questions to close up this synopsis of Nasr’s article:

• Which Islam and whose Islamic ethics does Nasr mean? (It’s not like Islam is one thing to all people.) Who decides?
• Does the distinction between “pure” science and technology hold up? Is it a useful distinction?
• Is there a whiff in Nasr’s writing of the “inferiority complex” he wants Islamic science to rid itself of?
• There is a certain resemblance in Nasr’s article to positions of some evangelical Christians — he is, for example, critical of Darwinian evolution (an “hypothesis parading as scientific fact”) and aligns himself with the Pope in regards to “protecting the unborn” — is this resemblance more than simply on the surface?

These are questions I may pursue further in future reading and research, but if anyone has any thoughts, please share them.

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Modern Islam and science: an article by Seyyed Hossein Nasr is from in propria persona, © 2010 by Kristopher Nelson. Want to republish? Get permission. Want to quote? That's fair use.