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About

Imagine we are a small tribe living in a woodland clearing near the end of the last ice age. The long frozen dark is slowly cracking, melting in bits and puddles, flecks of light playing here and there on crocus tips. We drink from those tiny pools, frigid fresh water that tastes like life. Sometimes we forget the still-dark parts of the wood, the hidden predators, the rumors of other people living in cold, dank caves without fresh water. Sometimes we wander deep into the brambles, chasing after tales of richer lakes hidden in the dark, finding ourselves scratched and snagged.

Most nights we gather near the hearth and tell stories. Our best stories are about the end of winter. The storyteller holds a polished stone, etched with the image of a verdant shore flowing with game into a vast water extending, it seems, forever. We can see ourselves, dimly, reflected in the stone, ghosts with a scene of eternity etched on our hearts. We lack words to capture everything this means to us.

We are like so many other stories from so many other lands.

“‘When Aslan said you could never go back to Narnia, he meant the Narnia you were thinking of. But that was not the real Narnia. That had a beginning and an end. It was only a shadow or a copy of the real Narnia which has always been there and always will be there: just as our own world, England and all, is only a shadow or copy of something in Aslan’s real world. You need not mourn over Narnia, Lucy. All of the old Narnia that mattered, all the dear creatures, have been drawn into the real Narnia through the Door. And of course it is different; as different as a real thing is from a shadow or as waking life is from a dream.'” (from The Last Battle, 1956)

Through a Glass Darkly is about living in the shadow, the copy, the reflection in a polished stone. It is the “already / not yet,” the “Alpha and Omega,” the “was, and is, and is to come.” It is the part of the story we know and the part still to be written. It is the pilgrimage, the journey, the waiting, the hope. It is a small, broken man writing a letter to his friends in an ancient tongue:
βλέπομεν γὰρ ἄρτι δι’ ἐσόπτρου ἐν αἰνίγματι τότε δὲ πρόσωπον πρὸς πρόσωπον ἄρτι γινώσκω ἐκ μέρους τότε δὲ ἐπιγνώσομαι καθὼς καὶ ἐπεγνώσθην — “For now we see through a glass, darkly; but then face to face: now I know in part; but then shall I know even as also I am known.” 1 Cor. 13:12 (KJV).

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Scholarship

Background

It is my great privilege to work as a legal scholar. As of July 2007, I will be an Associate Professor of Law at Seton Hall University Law School, where I am part of the school’s Institute for Law, Science and Technology.

My scholarship focuses on the law, norms and economics of intellectual property and information. In many ways, I consider myself a “Critical Information Studies” scholar. Much of my work concerns biologically encoded information and the biotechnology and pharmaceutical industries.

I studied law and economics and regulatory theory at New York University Law School, where I earned an LL.M. in Trade Regulation in 1998. I earned my J.D. in 1991 from Seton Hall University Law School. Before entering academe full-time, I was a Partner in the Information Technology / Intellectual Property practice group of McCarter & English, LLP.

Publications
Here is a list of my recent publications:

Patents, Essential Medicines, and the Innovation Game, 58 Vanderbilt Law Review 501 (2005). This article is a game theory analysis of the effects of differing levels of patent protection on access to essential medicines in developing countries.

The Penguin’s Genome, or Coase and Open Source Biotechnology, 18 Harvard J. Law & Tech. 167 (2004). This article is an analysis of whether open source development principles can apply to biotechnology.

Peer-to-Peer Networks, Technological Evolution, and Intellectual Property Reverse Private Attorney General Litigation, 20 Berkeley Tech. L.J. 1685 (2005). This paper analyzes “reverse private attorney general” litigation by intellectual property owners against individuals, using the RIAA file sharing litigation as a model.

The Penguin’s Paradox: The Political Economy of International Intellectual Property and the Paradox of Open Intellectual Property Models, 18 Stanford Law & Policy Rev. ___ (2007) (symposium) (forthcoming). The article provides a game theoretic political economy analysis of efforts to encode “open source” and “open access” intellectual property norms into public policy via the international intellectual property system.

A Virtue-Centered Approach to the Biotechnology Commons (or, The Virtuous Penguin), 59 Maine Law Review ___ (2007) (symposium) (forthcoming). This essay sketches out a virtue ethics/virtue jurisprudence approach to biotechnology intellectual property policy.

Work in Progress

Currently, I’m working on the following projects:

The Information Commons and the Ontology of Information. This paper will explore the metaphor of the “commons” as applied to information. Is information really non-rival and non-excludable? What do we mean when we use the term “information?”

Biotechnology and the Anti-Commons . This project involves an empirical study of the innovation inputs into an important biotechnology product. The goal is to assess the extent to which proprietary rights increased transaction costs during the course of the innovation that led to the production of this product.

A Virtue Jurisprudence of Information. This project will extend the discussion of virtue ethics in my “Virtuous Penguin” article, in an effort to develop a richer virtue ethics approach to information policy.

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Photo Blog

Mid-Winter

How I wish it were summer!

Picture 108

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Science & Technology

From the ASA List: Consenus, Authority, and Global Warming

There has been an interesting discussion lately on the ASA list about global warming. As a preface, I should note that I’m not really a global warming skeptic. Based on the evidence I’ve been able to evaluate, I think global warming is a real problem that is significantly caused by human activity. (I am deeply skeptical, however, of the Kyoto treaty). The ASA list discussion morphed into a general discussion of the authority of consensus in peer reviewed scientific literature. Here, I become a bit more hesitant:

A commenter on the ASA list said: “… who are the final arbiters of controversies in scientific debates? I think we need to educate the public about scientific methodology and the need to rely on the scientific publication process as part of authoritative opinion. Without that, there’s no resolution.”

These are my thoughts:

Perhaps its because of my background that I’m not quite ready to apply the word “authoritative” to the scientific publication process or the general progress of professional science. Early in my legal career, I worked on big product liability litigation — asbestos, DES, Prozac, and breast implants — on behalf of pharma companies and other manufacturers. As a result, I think I have some hands-on experience with how the scientific process works in a politically charged context.

We have recently seen reports of how the peer review and publication process with respect to pharmaceuticals has been influenced by the industry in response to regulatory and product liability concerns. Many of the published studies concerning the safety and efficacy of compounds that become blockbuster drugs are directly funded by the pharma companies, the academic centers that produce the research are heavily funded by industry, and the journal peer reviewers often have ties to the industry. This doesn’t mean the science is all bad, but it does mean that it isn’t beyond criticism or even authoritative simply because it has passed peer review. Indeed, although when I was working on the Prozac cases the literature consistently denied any causal link between SSRI-class antidepressants and suicidal thoughts, in recent years the contrarian position has caught the FDA’s attention, at least as to the use of these drugs in adolescents. The evidence presented in the recent Vioxx cases also demonstrates pretty convincingly how the publication and peer review process and the scientific consensus can be captured by special interests.

This illustrates that, while courts must give heavy weight to scientific consensus, there is always room to challenge the consensus (this is what the controversial Daubert v. Merrill Dow case on the admissibility of expert scientific testimony is all about). At the end of the day, a court’s decision is supposed to be based on evidence and reason, not on any expert’s purported authority. Experts assist the court and the jury, but they do not decide the matter. I think this is exactly as it should be in the courts in a free and democratic society. It is also, I think, as it should be in the political process in a free and democratic society. The “final arbiter,” ultimately, is and must be the people, not any one community, scientific or not.

Of course, with respect to global warming, the big money interests are the contrarians, so perhaps that gives us even more reason to trust the literature in this particular instance. However, I think a general principle of “just trust the literature” ultimately is anti-intellectual and dangerous.

Let me further illustrate this with an example from a field that, at least to me, is far more impenetrable than climate science: theoretical physics. Recently I read Lee Smolin’s interesting book “The Trouble With Physics.” Smolin decries the “consensus” among cosmologists that string theory must be correct. Smolin’s chapters entitled “How Do You Fight Sociology,” “What is Science,” and “How Science Really Works’ are well worth the price of the book. Here is how Smolin describes the sociology of the string theory community:

1. Tremendous self-confidence, leading to a sense of entitlement and of belonging to an elite group of experts.
2. An unusually monolithic community, with a strong sense of consensus, whether driven by the evidence or not, and an unusual univormity of views on open questions. These views seem related to the existence of a hierarchical structure in which the ideas of a few leaders dictate the viewpoint, strategy, and direction of the field.
3. In some cases, a sense of identification with the group, akin to identification with a religious faith or political platform.
4. A strong sense of the boundary between the group and other experts.
5. A disregard for and disinterest in the ideas, opinions, and work of experts who are not part of the group, and a perference for talking only with other members of the community.
6. A tendency to interpret evidence optimistically, to believe exaggerated or incorrect statements of results, and to disregard the possibility that the theory might be wrong. This is coupled with a tendency to believe results are true because they are “widely believed,” even if one has not checked (or even seen) the proof oneself.
7. A lack of appreciation for the extent to which a research program ought to involve risk.

(The Trouble With Physics, at 284.) Does this sound familiar? To some extent, I think each of these points could apply to some people in the environmentalist community (and dare I say it, I think they also can apply in many ways to some people in evolutionary biology).

In the chapter “How Science Really Works,” Smolin makes the following observation about university hiring and peer review:

There are certain features of research universities that discourage change. The first is peer review, the system in which decisions about scientists are made by other scientists. Just like tenure, peer review has benefits that explain why it’s universially believed to be essential for the practice of good science. But there are costs, and we need to be aware of them….. An unintended by-product of peer review is that it can easily become a mechanism for older scientists to enforce direction on younger scientists. This is so obvious that I’m surprised at how rarely it is discussed. The system is set up so that we older scientists can reward those we judge worthy with good careers and punish those we judge unworthy with banishment from the community of science. This might be fine if there were clear standards and a clear methodology to ensure our objectivity, but, at least in the part of the academy where I work, there is neither.

(The Trouble With Physics, at p. 333) (I should be clear that Smolin seems to be speaking of “peer review” primarily in terms of departmental hiring decisons, but I think he intends to cover everything from hiring to what constitutes an acceptable reasearch agenda for publication).

At the conclusion of his book, Smolin says the following: “To put it more bluntly: If you are someone whose first reaction when challenged on your scientific beliefs is ‘What does X think?’ or ‘How can you say that? Everybody knows that …., ‘ then you are in danger of no longer being a scientist.” (The Trouble With Physics, at p. 354).

Smolin certainly has a personal axe to grind, since his research agenda swims against the consensus in his field (he rejects string theory and promotes somthing called quantum loop gravity). But, IMHO, his observations are trenchant, particularly when I factor them into my personal experience with a politically charged scientific consensus that directly impacts public policy.

A final point, given the ASA’s faith perspective: IMHO, it’s dangerous to speak in terms of “authority” when dealing with scientific consensus because we must recognize that the scientific community, like every other human community, is deeply affected by sin. I don’t think this implies an anti-science attidude, or YEC thinking or any such thing. It is simply an appropriately Christian epistemic and social realism. The scientific community is a human community, which means it is not entirely objective and free from distorted interests and misplaced priorities.

So I would say this: yes, we must take seriously the consensus of working scientists in any given field as reflected in the peer reviewed literature. However, we must also retain the rational and political freedom to evaluate consensus claims on the merits, being always mindful that the authority of all human communities, including communities of science, is necessarily limited by social dynamics and sin. Because of this, it’s irresponsible to ignore contrarian views, even if they are not a significant part of the peer reviewed literature. This is particularly true where the science in question is critical to public policy and democratic debate. If the contrarian view is clearly wrong, that should be demonstrable based on the rational strength of the consensus view, without resort to arguments from authority.

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Rubber Meets the Road — A Public School Kid and a Balanced View of Science

This afternoon was one of those “rubber meeting the road” times. My 11-year-old daughter, who goes to public school, adores her science teacher. Today, however, she came home very upset. It seems they’ve begun to study evolution, and my daughter is feeling an enormous conflict with what she’s been taught in Sunday School.

This is so difficult and delicate a thing to have to start navigating. Intending no disrespect to anyone who might thing otherwise, I don’t think young earth creationism is a good way to approach this sort of thing. Yet, on the one hand I don’t want to nip her respect for the church and her Sunday School teachers or to bring her into conflict with any of her Christian friends; on the other, I don’t want her to be afraid of science; and on yet another, I don’t want her to think scientists necessarily have the last word. I did my best to start explaining how there are different ways of looking at how God created the heavens and the earth, and that some things — like that there is a God and that God is the creator — are primary while others — like how old the earth is or what natural processes God used to create — can be discussed.

Anyone have any tips, resources, etc. for helping a kid this age start to navigate this minefield?

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Law and Policy

From the ASA List: Jurisprudence and Individual Rights

Someone on the ASA list made the following comment about the role of law:
the primary purpose of laws should be individual rights and group issues should be secondary.

Here are some thoughts I have concerning that commonly held proposition:

I’m not sure I can fully agree with this as a general principle. I’d agree that individual “rights” are important — thought I’d prefer terms I might consider more Biblical, such as “personal dignity.” However, I think the Enlightenment tradition (and its libertarian offshoots) overemphasizes this notion of individual “rights” and tends to deify the individual. It’s an unfortunate quirk of American Evangelicalism, I think, that Western Christianity has come to be so tightly identified with an essentially libertarian ethic and jurisprudence.

It seems to me that the Biblical pattern is to emphasize the community to a greater extent than the individual. Certainly this is true within the Church: “Do nothing out of selfish ambition or vain conceit, but in humility consider others better than yourselves.” (Phil. 2:3). I think a similar principle is reflected in Biblical social ethics, from things like the OT jubilee laws to Jesus’ teaching in the Sermon on the Mount.

So, I’d suggest that a thoroughly Christian jurisprudence has to account for the dignity of each individual as created in the image of God, but cannot have as its focus an individualistic focus on personal autonomy and rights.

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Justice

Year-End Giving: Justice

If you are thinking about year-end charitable giving, let me highlight one organization that I think exemplifies Kingdom values: International Justice Mission. IJM works to bring freedom and justice to child slaves, sex workers, and other exploited people around the world. I read IJM founder Gary Haugen’s book, Good News About Injustice, in an airport a number of years ago and it brought tears to my eyes. The IJM website also has other great resources on injustice around the world.

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Spirituality

New Years' Resolutions Prayers

Now that Christmas is over — I can’t believe it! — it’s time for New Years’ resolutions. I’m not so big on resolutions, which depend on my own resolve. Here instead are some hopes, goals and prayers:

My fundamental prayer for the new year is that I would become more like Jesus. Ok, stop rolling your eyes. I mean it. I want to be deep, rich, and masterful at loving God and loving others. I want to see those who are cursed be blessed; those who are imprisoned be set free; those who are afraid be calmed; those who are mourning be comforted. I want to see cycles of oppression broken, conflicts resolved into peace, lost sheep found.

In his beautiful little book Living the Sermon on the Mount, Glen Stassen asks, “What greater meaning in life can there be to participate, even in a little way, like a mustard seed, in the deliverance that God brings in Jesus?” (LTSM at 44). Stassen notes that “[l]iving the Sermon on the Mount is the way of grace. It is the way of Jesus. It is the way of the breakthrough of the reign of God.” (LTSM at 184) This is how I want to live in the coming year.

Here, then, are some specific things I’ve been thinking and praying about as ways in which I think the reign of God hopefully can continually break through in and through me:

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Spirituality

Christmas Wonder

In church this morning, our pastor had some kids read from the accounts of Jesus’ birth in the Bible, and then asked them some questions about what they had read. One girl read the angel’s words to Mary in Mark chapter 1: “Do not be afraid, Mary, you have found favor with God. You will be with child and give birth to a son, and you are to give him the name Jesus. He will be great and will be called the Son of the Most High. The Lord God will give him the throne of his father David, and he will reign over the house of Jacob forever; his kingdom will never end.”

“How do you think Mary felt when she heard those words from an angel?”, the pastor asked the girl. The girl was a bit awestruck at the fact that she was standing in front of hundreds of people, being asked a question by the pastor. She couldn’t respond, and stood there quietly. “I think you’re right,” the pastor said, “Mary was probably amazed!”

What a wonderful moment! The king of kings and lord of lords, the eternal logos, the maker of heaven and earth, emptying himself of privilege to become one of us, to redeem us. We are right to be awed and amazed. And then, as Mary did, to sing with joy:

“for the Mighty One has done great things for me—
holy is his name.
His mercy extends to those who fear him,
from generation to generation.” (Mark 1:49-50)

Merry Christmas!

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Today I participated in a blogger’s conference call graciously hosted by Joe Carter of the Family Research Council. The guests were Prison Fellowship President Mark Earley and Anthony Picarello of the Beckett Fund for Religious Liberty. The discussion centered on an Iowa District Court’s decision finding Prison Fellowship’s Innerchange Initiative, an anti-recidivism program, unconstitutional.

I should note that I greatly admire Prison Fellowship and its Innerchange program. This is exactly the sort of thing the Chuch is supposed to do in the world. From what I know of the Beckett Fund, I admire their religious liberty work as well. I’m an ardent advocate of religious liberty. In this particular instance, however, it seems to me that Prison Fellowship’s strategy was misguided and that the arguments the Beckett Fund is making slice the salami pretty thin.

Early and Picarello highlighted the troublesome aspects of the Iowa court’s ruling: the court unnecessarily traipsed into a definition of “evangelical” Christianity based on the testimony of one expert witness (who isn’t an evangelical), and levied an absurdly large restitution award against IFI. I think they are correct about these aspects of the opinion.

Early and Picarello also argued that the court’s opinion could be read to eliminate any federal funding for the activities of any person whose personal convictions are fundamentally religious. I think this is a major stretch. I discussed the case at some length when it was first decided. In my view, Prison Fellowship was trying to have it both ways in this instance. On the one hand, they base their program on the belief that true and deep change only happens through acceptance of Christ; on the other, they argued in court that there are “secular” aspects of the program that are separable from these particularly religious and evangelical ones and therefore appropriately subject to federal funding.

It was nice to be able to have a lively exchange with Early and Picarello on the conference call (I hope I didn’t butt in too much). They are clearly both capable people. However, I don’t feel that they were able to answer my concerns in a satisfactory way. Picarello argued that the Iowa ruling could concievably extend to say, a schoolteacher who in a general way feels that teaching kids is a form of witness and ministry. Anything is possible, I suppose, but this seems highly unlikely, to say the least. The Iowa ruling deals with a specific program / ministry, the fundamental goal of which is to convert inmates to Christianity and encourage them in their Christian faith. That goal is implemented through explicity Christian evangelistic meetings and extensive Christian teaching. It isn’t just offering a “cup of cold water” or having a generally religious personal motivation for an otherwise routine activity like teaching high school English.

Early and Picarello also suggested that the Iowa ruling could apply not only to federally funded recidivism programs, but also to privately funded ones. This would indeed be a problem. I’m not sure I see how this is so, however. The court held that IFI was a “public actor,”and that “as providers of a state-funded treatment program, they are burdened with the same responsibilities of any state employee: to respect the civil rights of all persons, including the First Amendment’s prohibition on indoctrinating others in their form of religion.” (Opinion at 100, emphasis added).

I think the question here arises from the ancillary benefits provided to inmates who attend the program, and the court’s factual conclusion that there are no meaningful alternatives to IFI in that particular prison system. If prisoners get benefits such as early release, and there is no other non-religious alternative, a court might find an establishment clause problem. During the call, Picarello noted that the court simply got the facts wrong here; there were other meaningful alternatives. In any event, I’m having trouble seeing the more sweeping constitutional implications Picarello alludes to. This seems to me more like a factual question about this particular prison system, which the court may or may not have gotten right.

Thanks again to Joe Carter for setting up the call and to Mark Earley and Anthony Picarello for participating. As always, I welcome comments from folks with different perspectives. Am I getting this one wrong and overreacting to the “religious right” overtones?