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Thursday, October 31, 2013

Could Robots Write Motions?

Via the Legal Writing Prof Blog, I learned of Ian Gallacher's article, Do RoboMemes Dream of Electric Nouns?: A Search for the Soul of Legal Writing.  Here is the abstract:

This essay considers the possibility that computers might soon be capable of writing many of the documents lawyers typically write, and considers what qualities of writing are uniquely human and whether those qualities are sufficient to render human written work superior to computer generated work. 
After noting that despite the claims of rhetoricians and narrative theorists, not all legal writing is persuasive writing, and that it is in the non-persuasive area of prosaic, functional documents that computer generated documents might gain a bridgehead into the legal market, the essay tracks the development of computer-generated written work, particularly in the areas of sports journalism and corporate reporting. The essay notes that the templates developed to generate these documents can be customized to produce the tone desired by the customer, meaning that both rhetoric and narrative have been captured and transformed into tools that can be manipulated by computer programmers. This in turn means that computer generated documents will not be devoid of rhetorical or narrative interest, making the programs that develop them potentially appealing for lawyers even if they seek to use them to draft persuasive as well as more functional documents. 
What these programs will lack, however, is empathy -- the ability to anticipate what information a reader will need from a document, and when the reader will need it, and to draft a document that meets the reader's needs and expectations. An empathetic human writer knows when to follow and when to break the genre expectations of a document and can send powerfully persuasive messages to a reader by use of that knowledge. 
The essay concludes that empathy is a crucial, and uniquely human, aspect of persuasive writing and that an empathetically-aware written document should be superior to a technically accurate but non-empathetic computer generated document.

Gallacher is pretty optimistic here that robots could not do the job of legal writers.  In some circumstances, I think that Gallacher is correct -- when analogizing a case in the meat of a brief's argument and drawing comparisons between different areas of law, a computer may not be able to grasp the nuances of language required to persuade the reader that there are indeed similarities between one case or area of law and another.

At the same time, other areas of law would not only be better off if arguments in the areas were written by machines, but also if they were judged by machines.  I am thinking specifically about California sentencing law (and possibly the sentencing laws of other states).  From my own experience, I know that when a criminal conviction is handed down, the number of years for the sentence is based on a wide variety of statutory references.  California's Three Strikes law means that prior, qualifying convictions add certain ranges of years onto current sentences (if those prior convictions are given "strike" status by the court).  

After figuring out the range of years for this conviction based on this formula, the court then needs to determine what fines the defendant should pay.  Some of these fines are mandatory and fixed.  Many of them have mandatory minimums, but the judge can exercise discretion and levy a higher fine.  If judges mischaracterize the type of fine they are levying, or levy an amount that deviates from the mandatory range, an appellate court might find that the prosecutor or defendant must forfeit an objection if the judge was mistaken.

After dealing with these technical, tedious sentencing requirements, and seeing many mistakes in sentencing phases, I a compelled to say that Gallacher's criticism of computer-written briefs is overbroad.  I would be interested in seeing steps in the direction of increased automization of briefing and decisions when it comes to criminal sentencing.  Automated briefs (that are properly programmed) could ensure that all of the elements of sentencing are argued -- or at least covered -- and submitted to the judge.  An automated program employed by the judge could ensure that in drafting an order, the judge would include all aspects of sentencing that he or she is required to include by law.

Admittedly, the area of legal writing where robots would excel is, at the moment, a narrow one.  At the same time, robots -- or at least computer programs that ensure the inclusion of all necessary elements -- may be worth considering in areas of the law that are technical, that include numerous mandatory elements, and that must be argued or decided in every case.

Wednesday, October 30, 2013

GPS Bullets and the Fourth Amendment

The BBC reports that police in several states, including my home state of Iowa, are using "GPS bullets":

The bullet is designed to make high-speed chases safer - enabling the authorities to track suspects without having to risk theirs or others' lives. 
And in true spy fashion the system works by hitting a button inside a police car. 
That triggers a lid to pop up releasing a bullet that shoots out and sticks to the car in front.

In United States v. Jones, the Supreme Court held that attaching a GPS device to a vehicle and monitoring its movements was a search under the Fourth Amendment even though the observations could all have been made by simply following and observing the vehicle's public movements.  The tactic was a search because it involved a trespass upon the defendant's property.

One possible critique of drawing direct analogies to Jones facts is that the case only dealt with a GPS device on a car, leaving courts and prosecutors with room to interpret the trespass rationale in other cases.  Police use of GPS devices to track cars seems to be a fairly specific factual scenario.

But as this technological development illustrates, however, the use of GPS devices may be getting easier for police.  While shooting a GPS bullet during a high speed chase would likely be lawful due to exigent circumstances, the vehicle exception, or some other rationale, that bullet's attachment to the vehicle would still probably constitute a trespass-based search, and widespread use of these bullets could raise numerous, interesting Fourth Amendment questions.

As a disclaimer, the BBC also reports that it costs $5,000 to install a GPS bullet system, and each of these GPS bullets costs $500.  This may hinder truly widespread use of these bullets until technological advancement makes them easier to purchase.

Monday, October 28, 2013

Zorn on Five Reasons Why Law Reviews Are Terrible

Christopher Zorn posts here, in a refreshing bit of criticism that touches more on the systematic chaos caused by submission systems like ExpressO rather than on the inferiority of student editors.  I do think that several of Zorn's reasons are a little overstated (for instance, I don't think that articles editors look closely to see if the author's grammatical choices match journal policy in deciding whether to publish the article), but I think that the ExpressO-based concerns deserve attention and have gone largely unmentioned in some of the recent criticism of law reviews.

Redding on Law Review "Best Practices"

Due to a number of academic deadlines (both in my own classes and in the class for which I am a teaching assistant), I have been unable to post very much this past weekend, and will probably not be able to write very much this week.  That said, I will do my best to keep on posting a few things, which brings me to this post by Jeff Redding of the Faculty Lounge.

I mentioned Redding's earlier reaction to Adam Liptak's critique of law reviews in my post here.  There, Redding proposed a conversation on how law reviews can better their scholarship.  He began with the suggestion that law schools generally refuse to publish the work of their own professors.

In his most recent post, Redding offers this previous suggestion and several other suggestions on how to better structure the presentation of legal scholarship and its treatment in the academy:

1) Every U.S. law school should have a written policy disallowing their own faculty from submitting articles for consideration to any law review edited by that school’s students, unless it is a symposium issue or there is some other ‘legitimate’ reason. Simultaneously, every student-edited U.S. law review should have a policy automatically refusing consideration to any article submitted by any faculty member of the law school to which that law review belongs, with caveats such as those just mentioned. (This is a repeat proposal from my last blog post on this subject.) 
2) Every U.S. law review should, at the beginning of every article published by it (e.g. in the * footnote), explain that law review’s ‘methodology’ for soliciting, reviewing, and choosing articles for publication. 
3) When listing publications on their academic CVs, authors should prominently indicate, for each U.S. law review publication, whether that publication was published in a student-edited or a peer-reviewed journal. 
4) When evaluating junior law faculty candidates for promotion, publications in peer-reviewed journals should be granted a weight at least as weighty as publications in student-edited law reviews. Perhaps it should continue to be the case that publications in student-edited journals will count (as they presently do most everywhere) for promotion from assistant to associate professor but, for promotion from associate to full professor, there must be publications in peer-reviewed journals. Or perhaps there should be evidence of publications in both student-edited and peer-reviewed journals at each stage of promotion. I am less interested in the details of the particular mix here, but only suggest a mix to reaffirm the importance of (pre-publication) peer-review, while confirming my lack of interest in shutting down (the market for) student-edited law reviews.
I'm not really sure that these suggestions are good ideas, or if they are acceptable, I don't think that these suggestions will make much of a difference.

As for the first suggestion, that journals not publish professors from their schools, I think that this would be a serious limitation for schools with law reviews that have specialized reputations that align with their school's reputation.  For instance, the UCLA Law Review has a reputation for publishing noteworthy critical race scholarship, but eliminating all UCLA professors from publication consideration would put a sizeable dent in the critical race scholarship the law review could  consider.  Also, schools like Harvard and Yale may have a lot of well-regarded professors who are producing very important scholarship, which would raise the cost of prohibiting publication of these professors in those schools' law reviews.

Regarding the second suggestion, I think that an indication of selection methodology would become vague and repetitive, since pretty much all law reviews likely employ a calculus selecting scholarship that appears "novel, likely to be relied upon in future scholarship and opinions, of broad interest and importance, and timely."  These works would likely have been selected from ExpressO and direct submissions and slated by the articles board.  Having predicted what I expect to be around 85 - 90 percent of these asterisk footnotes, I'm not sure how much they would add.

The third suggestion sounds like a good idea, but from the CVs I have seen, it looks like a lot of professors are doing this already.

And I do not have much to say with the fourth suggestion due to my lack of familiarity with the promotion of professors, but I would be surprised if publication in peer-reviewed journals did not carry some weight of its own in the process.  If that is not already the case, I agree with Redding's suggestion here.

I doubt that anything substantial will change in this process, since criticism of law reviews has been a subject of discussion for a very long time, yet legal scholarship has persisted in its traditions.

Tuesday, October 22, 2013

Alireza M's Failed Hanging: A Historical Context and Potential Outcomes

The BBC reports:

Iran's justice minister says there is "no need" for a man who survived a hanging to be hanged a second time. 
Lawyers want the head of the judiciary to stop a repeat hanging after the man was found alive in a morgue. 
. . . 
The 37-year-old convicted drug smuggler, named as Alireza M, was found alive in a morgue after being hanged at a jail in the north-eastern city of Bojnord last week. 
He had been left to hang for 12 minutes after which a doctor declared him dead, reports said.

When I saw this story, I was immediately reminded of an essay I read in the Green Bag last year.  I had been trying to find things to distract me from impending finals, and reading through volumes of the original Green Bag was an excellent strategy that I recommend to anybody bent on amusing, educational procrastination.

The essay is Remarkable Resuscitations After Execution.  (Citation: 2 Green Bag 464 (1890); here is the link to HeinOnline version).  The essay recounts several stories of convicted criminals who had been sentenced to death, hanged, or otherwise executed (e.g., broken at the wheel), but had miraculously survived.  The variety of stories, as well as approaches that society and officials would take to resuscitations following executions, provide an interesting context for Iran's situation.

The 1724 case of Margaret Dickson is an example that Iran's Justice Minister should cite in arguing that Alireza M. should not be hanged again:

[Margaret Dickson] was hanged for infanticide; the body was cut down and placed in a coffin, and removed by her friends with a view to interment in the parish churchyard of Masselburgh.  The jolting of the cart and the admission of air through some injury to the coffin, appear to have combined in resuscitating the woman; for she showed evident signs of life before the cart had proceeded one third of the distance.  She was removed, revived, prayed with by a minister, and received back into the circle of her friends.  She lived creditably many years afterward, had a large family, and sold salt about the streets of Edinburgh.

The government could reply with:

In 1658 a female servant was hanged for some crime at Oxford; she was probably kept hanging a longer time than usual, probably on account of the wonderful resuscitation of Anne Green a few years before.  She was cut down, and the body allowed to fall to the ground with much violence; yet she lived.  But the severity of the law insisted upon her undergoing a second and more fatal hanging.

I would last like to include the Green Bag's summary of Helen Gillet's case.  This attempted execution took place in France in 1625.  While this case concerns the punishment of beheading, I think that its notable facts merit its inclusion in this post as well as the length of the following excerpt:

A young girl, Helen Gillet, was tried on the charge of infanticide; and although the evidence was very vague and unsatisfactory, she was condemned to death by the parliament of Dijon.  The execution was to take place on May 13th.  We are told that on the appointed morning the executioner confessed himself and received the sacrament, and that when he arrived at the scaffold he exhibited the most lively signs of mental anguish.  He wrung his hands and raised them to heaven, and falling in his knees, prayed for pardon from the culprit, and begged the blessings of the assistant priests.  He cried out that he wished he were in the place of her who was about to receive from him the mortal stroke.  At last, when the head of the miserable girl was laid upon the block, he raised the axe, but missing his blow, only wounded her left shoulder.  The headsman, horror-stricken, called aloud to the populace to kill him, and stones were thrown at him from all sides.  His wife, however, who was by his side, darted forward, and seizing Helen, placed her head once more upon the block, and the executioner struck again, but again missed his blow.  The rage of the multitude now knew no bounds, and the executioner fled for safety to a small chapel which stood near by.  His wife then seized a cord, and twisting it round the neck of the prisoner tried to strangle her, but a volley of stones flew from the crowd, and the female fiend drew out a pair of long sharp scissors with which she stabbed her victim in the face and neck and different parts of the body.  The populace, in a transport of rage, killed both her and her husband on the spot.  The lifeless, as it was supposed, body of Helen Gillet was taken charge of by a surgeon; and signs of life having been discovered by him, the application of prompt remedies restored her to consciousness.  The inhabitants of Dijon then presented a petition to the king, and prayed him to grant her his royal pardon.  The prayer was successful.
For additional, fascinating examples, I recommend that you read the entire essay, if it happens to be available to you.

Monday, October 21, 2013

Reviews of Liptak's Review of Law Reviews (And a Brief Note on Immanuel Kant)

Today's New York Times has an article by Adam Liptak where he argues that Law Reviews are bad and that student editors of them are poor judges of what valuable scholarship is.

I don't have anything new to say to this that I haven't said before, mainly because Liptak's article doesn't say anything that hasn't been said before (for an older and far more delightful version, see my post on Fred Roddell here).  My main point on the article is to note that Liptak quotes Roddell, but apparently did not get the memo that if one's commentary is not novel, it should at least be fun to read.

I am not the first to point out that Liptak's article lacks novelty and charm. Matt Bodie calls the article "Lazy." Jeff Redding is a bit nicer and says that the article "was a bit surprising in its re-hashing of fairly unhelpful observations." Will Baude and Orin Kerr also have posts defending law reviews. Stephen Bainbridge approves of Liptak's argument, but notes that he is, at the moment, particularly irked by one law journal's failure to adhere to deadlines.  Above the Law seems to like the article, reprinting a source's quote in the article, and asking whether law reviews can get any worse, a question with an obvious answer (yes as an almost universal rule, things can always get worse) but the wrong question (right question: how can we make them better?).  Liptak, unsurprisingly and uncontroversially, mentions peer review as a possible answer (good call).

Finally, Liptak includes the oft-quoted line by Chief Justice John Roberts that “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

A Westlaw search of the Journals and Law Reviews database (query: ti(kant & bulgar! & evid!)), leads to zero hits. Roberts said that you should "pick up" a copy of any law review, indicating that he was speaking of recent issues that would be in Westlaw's database. The terms in my search all relate to the core components of Robert's example, and the hypothetical observer's ability to see this subject immediately indicates that these terms are present in the title.  Moreover, widening the search by removing "bulgar!" still led to zero hits.

I would not be surprised if removing "evid!" instead of "bulgar!" would also lead to zero hits.

(Update: I checked.  I'm correct).

ACTUAL UPDATE: Posts kept coming in as the day went on, and I felt that this one by Jack Chin was too nice to leave unmentioned.

ADDITIONAL UPDATE: Daniel Solove at Concurring Opinions (unsurprisingly) concurs.

Sunday, October 20, 2013

A Questionable Study on Digital Sampling's Impact

At Volokh Conspiracy, Stewart Baker has a nicely-titled post that discusses a recently-posted paper by W. Michael Schuster on artists that create mashups that digitally sample copyrighted works.  I've posted previously about these mashups, specifically as to whether mashup creators could copyright the mashup and sue others who create similar mashups.

Here is the (lengthy) abstract of Schuster's paper:

This Article presents an empirical study on the effect that digital sampling has on sales of copyrighted songs and how this effect should influence the fair use analysis. To conduct this research, a group of previously sampled songs had to be identified and sales information for these songs collected. The over 350 songs sampled in musician Gregg Gillis’s (AKA Girl Talk’s) most recent album presents an ideal dataset because the album’s instantaneous popularity allows for its influence to be analyzed through a comparison of the sampled songs’ sales immediately before and after release. Collecting and comparing sales information for these songs found that — to a 92.5% degree of statistical significance — the copyrighted songs sold better in the year after being sampled relative to the year before. To the extent that the Copyright Act instructs courts to analyze (among other considerations) the effect that an alleged fair use has on the potential market for the original work, these findings favor the conclusion that digital sampling is a fair use (though each statutory fair use consideration should still be reviewed).  
Additionally, the songs sampled in the subject album were evaluated to ascertain the length of each sample and to what degree each sampled song had experienced prior commercial success. This collected data was used to test the hypothesis that sampled songs which were more recognizable to listeners (e.g., songs that were commercial hits or songs that were sampled for a relatively longer period) would see a greater sales increase after being sampled. The collected data did not find a correlation in post-sampling sales increases and sample length or prior commercial success, but further study may be warranted. 
Beyond supporting the premise that digital sampling may constitute fair use, the results of this study raise several notable issues and subjects for future study. One such issue is that courts only address an alleged fair use’s effect on the market for the original as a binary system, wherein the only options are harm to the market (disfavoring fair use) or no harm to the market (favoring fair use). There is no accepted rule on how to treat a market benefit (such as the one evidenced here). The failure to address this issue is questionable because a market benefit actually furthers the utilitarian goal of copyright by incentivizing the creation of new works through economic gain. The current research makes clear the need for precedent on how the fair use analysis should treat actions (e.g., digital sampling) that may increase sales of the original work. Additionally, this study sets the ground work for an objective financial review of fair use and market effect, which would yield needed predictability and stability to the fair use doctrine (at least, with regard to digital sampling).
I'm not one to hesitate to criticize the empirical methodology of studies, but in this case, Baker got there first.  He notes:

Actually, though, I think the article is a little too comforting. I am always skeptical of scholarly research that reinforces academic prejudices, since scholars tend adjust their standards of proof to fit their prejudices. Hostility to copyright is pretty much the norm in academic circles, and if you read the article skeptically, it loses much of its persuasiveness. Schuster achieves his results by playing with the sample, dropping nine songs from a sample of about 200 because they completely wreck his argument. His reason for dropping the songs is that they were hits in the 30 months prior to the release of Girl Talk’s album, and hits by definition suffer declining sales after topping out. If he didn’t drop those songs, Schuster’s data would show a 50% drop in sales of the songs that Girl Talk samples. 
Schuster says he’s just correcting for noise in the data, and it isn’t appropriate to charge Girl Talk with the natural rhythm of pop music sales. Maybe so, but once you start making big after-the-fact adjustments to a sample of 200, you can prove pretty much anything. At best, Schuster has developed an interesting hypothesis that ought to be tested by a new experiment untainted by data cherry-picking.
The only point that I would add to Baker's reaction is that I was already suspicious of the study by the time I read the abstract, due to Schuster's note that his study arrived at a conclusion "to a 92.5% degree of statistical significance."  This is an oddly specific way of framing the results.  While I am not an expert on statistics, I think that this phrasing is a way of avoiding an admission that the level of statistical significance falls below the typically-accepted levels of P=.05 or P=.01 (for the really strong claims).  Those P-values would translate into levels of statistical significance of 95% and 99%, respectively, and it would seem that Schuster's study falls short of these widely accepted levels of significance.  For more on statistical significance thresholds, see these posts about the .05 threshold at the Empirical Legal Studies blog here and here, and a post cautioning overreliance on these thresholds here.

In the spirit of that last post I mentioned above, I don't think that this worry about significance should be fatal to Schuster's study, but I think that it, combined with Schuster's selection methods, should raise some doubts.  At the same time, however, I think that Schuster is on to something interesting, and a wider study may well lead to more solid results in favor of his thesis.

Friday, October 18, 2013

Originalism, Changed Meanings, and the Impossibility of "Meaning Updates"

The Economist's Prospero Blog has this post criticizing views that Justice Antonin Scalia expressed in his widely covered interview with New York Magazine.  The post's author, R.L.G., takes particular issue with
this statement by Justice Scalia:

Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?

R.L.G. takes issues with the specific portion of the quote where Justice Scalia says that words' meaning "doesn't change."  After giving an example of the changing definition of the word, "silly," and discussing
Justice Scalia's opinion in the Second Amendment case of District of Columbia v. Heller, R.L.G. states:

[D]ictionary definitions are not the end of the matter. Words have meanings only in relation to their speakers and the real world. Meanings can remain constant only if societies remain constant. The “arms” quotation from Heller is telling. While the dictionary definition of “arms” may not have changed much, arms certainly have. Even the word "gun" has changed meaning; once referring only to a cannon, in the modern era it can refer to a rifle or pistol. That is an unsurprising semantic drift. The guns Wal-Mart sells today at knock-down prices to masses of customers would be the deadliest personal weapons in the world 1787. This is to say nothing of modern artillery and armour, or chemical, biological and nuclear “arms”.

I think that R.L.G. touches on a common critique of originalism, but does so in an overly abstract and uncharitable manner.  I would like to highlight how R.L.G.'s criticism is less fair than it should be, and how Justice Scalia's position should be interpreted to make it more defensible.  R.L.G. does raise some valid points, however, and I would like to put these abstract criticisms into a more concrete form.

European Worries About Guns and 3-D Printing

The New York Times reports:

Law enforcement agencies across Europe are on alert over the proliferation of gun-making software that is easily found on the Internet and can be used to make a weapon on a consumer-grade 3-D printer. So far, there are no reported episodes of violence committed with such weapons, but police officials worry it is just a matter of time.
European authorities are even more wary about this software than American lawmakers and law enforcement because gun regulations tend to be far stricter in European countries than they are in the United States.  The article discusses a lot of the interesting issues that 3-D printers raise, including whether guns printed on them are practical, worries about whether they can be smuggled through conventional security systems, and the possibility of firearm restrictions taking place on the level of the private printer manufacturers:
A Danish company, Create it REAL, which makes 3-D printers, says it might have another possible solution. It has developed software that looks for the characteristics of weapon designs and, when detected, blocks the printer from making a firearm. “If certain features align, the software will not allow the user to view and print the model,” Create it REAL says on its Web site.

The company notes that hacking of the software is always possible.  In any event, measures like the embedded-software approach may be the way to go when it comes to regulating 3-D printed guns -- especially when they can be designed in a gun-friendly state in the United States, but downloaded all over the world.  

Continuing to assume that printed firearms will be low-quality may be a temporarily valid critique, but with ever-improving printing technology (including increasing forays into printing metal items), regulations will need to address what will soon become a technological reality.

Tuesday, October 15, 2013

Law Review Word Limits and the Limits of Editorial Control

Over at his blog, Stephen Bainbridge remarks that Harvard and Yale are publishing numerous articles well in excess of their stated page limits, despite earlier remarks by the journals that they would take efforts at limiting the length of articles.  He points out that, remarkably, all of the articles in Harvard and Yale's most recent issues exceeded the journals' stated word/page limits.

Bainbridge concludes his post with:

So are law review word limits just a joke? The problem is that after checking Harvard and Yale, I got bored. So I don't know if there are other journals out there enforcing the rules more strictly. At the very least, however, it seems that Harvard and Yale are just joshing us. 
So my advice is: Write the article to the length you need and ignore the word limits.
I think that Bainbridge is right to point out the problem of overly long articles, which is a common phenomenon in the world of legal scholarship.  Earlier this year, when I was looking through article submissions for the UCLA Law Review with the other articles editors, we found that many articles we received were well in excess of the journal's 35,000 word limit.

I do think, however, that there might be a few things going on beneath the surface that make the situation more complicated than it seems on its face.

For one, law reviews that publish articles in excess of their word limits may have limited choices of what to select for publication.  In my experience, the majority of the articles we received were very close to, or exceeded UCLA Law Review's word limits.  Some of these articles were quite good.  Some of the shorter articles were not so good -- and regardless of quality there were often far fewer short articles to choose from.  While articles that were too long were less likely to be accepted, they sometimes stood out from the rest as the best submissions.  In today's world of legal scholarship, where long, published articles are the norm, long, submitted articles are also the norm.

More significantly, journals have a limited level of editorial control over articles once the articles are accepted for publication.  While many law journals reserve the right to refuse publication or require alterations in egregious circumstances (such as blatant errors or plagiarism), beyond those narrow circumstances, law journals' editorial preferences are suggestions, rather than requirements.  So if a law journal accepts an article for publication that ends up growing much longer over the course of the publication process, there is probably very little that the journal will be able to do about that.

Accordingly, I would offer a revised version of Bainbridge's suggestion to those authors who still wish to publish overly long articles: write the article within the journal's suggested word limits, and save your excess text and discussion for after it is accepted for publication.

Or, buck the trend and try to have a concise end product.  If I am looking through articles while researching a subject, I will be much more likely to read a 30-page article than a 70-page article.  I have a strong feeling that my preference is shared by other readers and researchers.

Monday, October 14, 2013

The Disproportionate Impact of Mass Surveillance

The New York Times reports on federal grants amounting to $7 million that were recently awarded to Oakland, California.  This grant money will be used to fund broad new surveillance programs throughout the city, apparently ranging from the low to high income neighborhoods.

The Times reports on the appeal of the system to law enforcement:

For law enforcement, data mining is a big step toward more complete intelligence gathering. The police have traditionally made arrests based on small bits of data — witness testimony, logs of license plate readers, footage from a surveillance camera perched above a bank machine. The new capacity to collect and sift through all that information gives the authorities a much broader view of the people they are investigating.

Privacy advocates are not enthusiastic about this development:

The American Civil Liberties Union of Northern California described the program as “warrantless surveillance” and said “the city would be able to collect and stockpile comprehensive information about Oakland residents who have engaged in no wrongdoing.”
And then there are those who see this development as simply another part of life in a world of expanding technological capabilities:

Steve Spiker, research and technology director at the Urban Strategies Council, an Oakland nonprofit organization that has examined the effectiveness of police technology tools, said he was uncomfortable with city officials knowing so much about his movements. But, he said, there is already so much public data that it makes sense to enable government officials to collect and analyze it for the public good.

I think that more surveillance technology is not necessarily a bad thing (but see: Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934 (2013) for an interesting and extremely readable account of the inherent harms of increased surveillance).  I do think that implementing expanded surveillance programs can be done in a manner that causes a great deal of harm.

Sunday, October 13, 2013

California Governor Vetoes Bill Requiring Warrant to Obtain Contents of Electronic Communications

Just the other day, I posted about California's SB 467 -- the bill that would require police to get a warrant before obtaining the content of online communication.

Governor brown ended up vetoing the bill.  He noted that police are already required to seek warrants under federal law, and pointed out that the bill introduces new notice requirements that will be an obstacle to law enforcement officers.

While these reactions to the bill are understandable, I think that the bill would help avoid any later confusion about the contents of online communications, since circuits have split on the issue already.  Moreover, the notice requirements would bring a lot of these cyber operations into the public eye, and there are provisions in the bill that would allow delayed notice in the event that notice would result in harm to individuals, or destruction of evidence, among other concerns.

The LA times reports here on this decision as well as on the many other bills that were signed into law or vetoed along with SB 467.

Saturday, October 12, 2013

UCLA Law Review is Not Ranked in the Top Ten...

...of this list compiled by Roger Alford at Opinion Juris.

Noting that Strunk and White's Elements of Style calls for writers to eschew unnecessary words, Alford decided to see how law journals fared at following this rule.  Strunk and White's classic example of an unnecessary phrase is "the fact that," so Alford decided to survey how many times this phrase appeared in the top law reviews over the past ten years.  The top ten (mis)users of this phrase were:
Harvard Law Review: 869
Michigan Law Review: 496
Yale Law Journal: 459
Columbia Law Review: 436
Chicago Law Review: 431
NYU Law Review: 428
Penn Law Review: 408
California Law Review: 406
Stanford Law Review: 388
Virginia Law Review: 364
Looks like Harvard just has to rank at the top of everything.

(H/T: Paul Caron at TaxProf Blog)

Friday, October 11, 2013

California Bill, SB 467, Seeks Warrant Protection for Emails

The ACLU of California flags a bill here that has made it through the California legislature and is now awaiting the governor's signature.  The bill, SB 467, would give emails and online documents the same warrant protection as the content of letters.

The full text of the bill is available here. It is pretty long, but one of the more important sections seems to be the proposed amendment to Penal Code section 1524.4. The proposed amendment reads:

(a) A governmental entity shall not obtain from a provider of electronic communication services or remote computing services the contents of a wire or electronic communication that is stored, held, or maintained by that service provider without a valid search warrant issued by a duly authorized magistrate, with jurisdiction over the offense under investigation, using procedures established pursuant to this chapter.

I agree with the bill because I think that the content of emails should receive Fourth Amendment protection partly because the content of emails is analogous to the content of letters -- which receives Fourth Amendment protection -- and also for the reasons explained by Orin Kerr's analysis here, where he notes that even though the copy of an email received by somebody else may no longer be protected, this does not imply that the copy of the email on a third party server loses protection.

This bill would reject the Eleventh Circuit's approach in Rehberg v. Paulk, 598 F.3d 1268 (2010) which Kerr summarizes and criticizes here.  The bill would confirm the Sixth Circuit's approach in United States v. Warshak, 631 F.3d 266 (2010) which Kerr describes here.

The bill seems to be consistent with Ninth Circuit precedent on the issue. United States v. Forrester, 512 F.3d 500 (2007) stated in dicta that individuals' expectation of privacy in email contents was the same as their expectation of privacy in the contents of letters, but this statement was affirmed in a holding in the text-messaging context in Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (2008).

SB 467 seems to have had bipartisan support in the legislature, and it looks consistent with several circuits' precedent, including that of the Ninth Circuit.  Hopefully it ends up being signed into law.

Cushman on the Clerks of the Four Horsemen

Barry Cushman has an article that is forthcoming in Volume 39 of the Journal of Supreme Court History entitled The Clerks of the Four Horsemen.  Here is the abstract:

The names of Holmes clerks such as Tommy Corcoran and Francis Biddle, of Brandeis clerks such as Dean Acheson and Henry Friendly, and of Stone clerks such as Harold Leventhal and Herbert Wechsler ring down the pages of history. But how much do we really know about Carlyle Baer, Tench Marye, or Milton Musser? This article follows the interesting and often surprising lives and careers of the men who clerked for the Four Horsemen - Justices Van Devanter, McReynolds, Sutherland, and Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange bedfellows.

While the article itself lacks a unifying theme other than showing that the clerks had varying career outcomes and political philosophies, it is still a fascinating read -- and people who don't like Justice McReynolds will find more evidence to back up their opinions.

Cushman is no stranger to the Four Horsemen, having also authored this 2011 article, The Secret Lives of the Four Horsemen, in which he argues that Justices Van Devanter, McReynolds, Sutherland, and Butler were not only occasionally nice people, but were also closet liberals based on their lesser-known cases.  

Suspended Death Sentences

I was reading Richard Cassin's very interesting post at the FCPA Blog about how many corrupt Chinese government officials are being caught when their mistresses disclose the officials' corrupt activities, when one particular term caught my eye.  Cassin mentioned a previous case where a former Railways Minister, Liu Zhijun, had received a "suspended death sentence" for graft.

This sentence struck me as peculiar because suspended sentences in the United States tend only involve jail or prison sentences.  An individual who is convicted and receives a suspended sentence is pretty much off the hook, although if they end up getting convicted of another crime in the future, the prior, suspended sentence may be imposed.

In China, suspended death sentences are imposed with a certain time limit.  For example, Liu, the former Railways Minister, was sentenced to a two-year suspended death sentence.  After those years pass, and if Liu has maintained good behavior in prison (which apparently almost always happens), the suspended death sentence becomes a sentence to life in prison -- which in turn can be reduced to a certain term of years.  This type of sentence is exclusive to Chinese law.

Suspended death sentences are controversial in China, a country known for handing down a lot of death sentences.  While the death sentence is viewed as a deterrent for corrupt officials, the prospect of having this sentence suspended makes it a far less frightening prospect.

Thursday, October 10, 2013

Sherman and McNamara on Sexual Orientation Conversion, Conduct, and Free Speech

In their editorial in the October 10 issue of the New York Times, Paul Sherman and Robert McNamara criticize California's law, SB 1172, that prohibits therapists from using talk therapy and other efforts to seek to change the sexual orientation of children under the age of 18.  The Ninth Circuit recently upheld this law in the case, Pickup v. Brown.  A similar law in New Jersey is now being challenged in federal court.

I posted previously about Pickup v. Brown here.  As I mention in that post, I think that the result was correct, although some of the court's test language for determining whether professional speech is subject to regulation may be problematic.

Sherman and McNamara strongly disagree with the outcome in Pickup, and have filed an amicus brief in support of an en banc rehearing of the case in the Ninth Circuit. Their argument: the government should not be able to regulate speech simply by labeling it as "conduct." They write:

Under the Ninth Circuit’s ruling, governments could regulate this speech however they wanted, as long as they relabeled it “conduct.”
. . . 
But whether or not something is protected by the First Amendment does not hinge on whether we decide to call it “speech” or “treatment.” It hinges on whether or not the government is regulating something that communicates a message. Brain surgery and electroshock therapy do not, but talk therapy — whatever else it does — clearly communicates a message.

They highlight the importance of their argument with what they argue is a similar example:

Mr. Cooksey is a resident of North Carolina who was recently ordered by that state’s dietitian licensing board to stop offering dietary advice through his Web site. The board’s reasoning? Dietary advice is not speech, it’s the “conduct” of nutritional assessing and counseling.
Sherman and McNamara have a point when it comes to the possible abuse of the term, "conduct."  As the Ninth Circuit held, the therapy in Pickup v. Brown was subject to a great deal of regulation because the ban on the therapy was a regulation of "professional conduct" that had an incidental effect on speech.  The court noted that a state could ban the use of a drug and that this would be completely within its power, even if there would be an incidental restriction on speech, namely, that doctors could not give recommendations that their patients use the drugs.  The court did not go into very much detail as to how "professional conduct" should be defined.

I think that Sherman and McNamara exaggerate this concern, however, and they do so to the point where their argument becomes misleading.

One initial problem I have with their argument is that the question of whether talk therapy is speech or conduct is actually far less clear than they seem to make it.  Even though talk therapy consists of communication, it seems that this communication has a unique impact on patients that takes place at a level other than one's listening to and reasoning about speech.

A larger problem with the editorial is that it overstates the breadth of states' ability to regulate speech.  States cannot simply label speech as "conduct" and thereby regulate it without any First Amendment problems.  The court takes into account speech by professionals to clients, notes that this speech can be regulated, but concludes that this speech is still protected by the First Amendment, albeit a somewhat diminished level of protection.  Moreover, speech by professionals to the public about matters, including matters relating to their profession, receives full First Amendment protection.

Under that last point, the Cooksey case seems to be almost certainly incorrect based on the reasoning in Pickup, both because the speech is to the public at large (since Cooksey is characterized as a blogger who is blogging this advice), and because there is no professional-client relationship that might reduce the scope of the overall message.  

Even if there were a one-on-one relationship in the Cooksey scenario, Cooksey's advice seems to be directed towards people's reasoning processes in that it urges people to take some action -- it does not seek to change those people's psychological makeup directly, as talk therapy would.

While I think that Pickup v. Brown is a notable First Amendment case, and while some of its reasoning raises questions, Sherman and McNamara's editorial oversimplifies the issue and makes analogies that don't hold up under scrutiny.

Wednesday, October 9, 2013

Schraub on Sticky Slopes

This is the title of an interesting article by David Schraub in the latest issue of the California Law Review.  It does not seem to be available on the journal's website, but here is a link to the paper on SSRN.  Here is the abstract:

Legal literature is replete with references to the infamous “slippery slope” — situations in which a shift in policy lubricates the path towards further, perhaps more controversial, reforms or measures. Less discussed is the idea of a “sticky slope.” Sticky slopes manifest when a social movement victory acts to block instead of enable further policy goals. Instead of greasing the slope down, they effectively make it “stickier.” Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through social exhaustion with grappling against the problem of inequality to seemingly little effect.

I argue that attentiveness to sticky slopes is important for three reasons. First, awareness of the prospect of a sticky slope can be important in long-term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision. Third, sticky slopes reveal how prior victories are themselves sites of social conflict and controversy over meaning, which social movements will want to turn to their preferred ends.

(H/T: Whoever left the most recent issue of the California Law Review on the table in the UCLA Law Review Office)


Here is the link to the article on the California Law Review's website.

Tuesday, October 8, 2013

Law Reviews Disproportionately Publish Their Own Schools' Professors

So says Albert H. Yoon in his article, Editorial Bias in Legal Academia.  Here is the abstract.

In academia, journals serve as a proxy for quality, where prestigious journals are presumed to publish articles of higher quality than their less prestigious counterparts. Concerns over editorial bias in selecting articles, however, challenge this claim. This article develops a framework for evaluating this bias in legal academia, examining over 25,000 articles from nearly 200 general interest law reviews. Examining published articles in law reviews—the dominant venue for scholarship—and subsequent citations to these articles, we find that, with few exceptions, law reviews publish more articles from faculty at their own institution than from faculty at other law schools. Law review publications of their own faculty are cited less frequently than publications of outside faculty. This disparity is more pronounced among higher-ranked law reviews, but occurs across the entire distribution of journals. We correspondingly find that law faculty publish their lesser-cited articles in their own law review relative to their articles published in other law reviews. These findings suggest that legal scholarship, in contrast to other academic disciplines, exhibits bias in article selection at the expense of lower quality.
I think that the visual on page 14 of the article is particularly interesting -- it shows that higher ranked articles publish a substantial fraction of articles by faculty affiliated with their schools, but this fraction drops by about half when it comes to journals that are ranked 50th or so by US News.  The fraction again begins to increase as journal rank decreases.

(H/T: Orin Kerr at Volokh Conspiracy)

See also this older post on the subject by Glenn Cohen.

Appellate Division in New York Upholds "Computer Trespass" Conviction

The case is People v. Puesan, and the court's opinion is available here.

The defendant was charged and convicted of "computer trespass" among other crimes, when he entered his place of employment while on disability leave and accessed computers in the office.  The court notes the
disability leave policy and security measures the office took:

Tom Allen, Vice President of Security at Time Warner, testified that an employee who is placed on work leave is not considered an active employee; his or her access card is disabled and thus cannot be used to gain access to the company's offices. This policy is announced in employee handbooks provided to employees, and any employee placed on leave is instructed by human resources department personnel regarding that policy. Since the public is not allowed to enter Time Warner Cable's Northern Manhattan office, security guards are stationed outside to ensure that those entering the building have valid ID cards.

Nevertheless, the defendant entered the office and accessed computers, apparently by using a program that generated password keys.  He resorted to this program after requesting the use of a coworker's login and password -- a request that was denied.

The appellate division of the superior court upheld the conviction and held that defendant had gained access to the computers "without authorization."  The court noted that New York's statute defined "without authorization" as "'access of a computer service by a person without permission . . . or after actual notice to such person, that such access was without permission' (Penal Law § 156.00[8])."  The court further clarifies what it takes for there to be access without authorization:

for access to be without authorization, the defendant must have had knowledge or notice that access was prohibited or "circumvented some security device or measure installed by the user"

The court held that the defendant's knowledge that he was not allowed in the building, and his use of the program to overcome the password security violated the statute.

While this case is clear, I feel like it is worth flagging because the court's definition of "without authorization" is relevant to a current debate over the meaning of a similar provision in the federal Computer Fraud and Abuse Act, and could help inform debate on the subject.  

The definition of "without authorization" continues to be a topic of dispute at the federal level, with the case of United States v. Auernheimer in the Third Circuit being a particularly notable example.  Cases like Puesan that clarify the definition of "without authorization" are particularly important, since the definition of this term in the federal context varies widely, depending on the circuit.

Strange Empirical Claims About Mass Shootings and Stock Prices

I have a few "alerts" set up on Google Scholar, with one of them set to notify me whenever something containing the phrase "Second Amendment" is published.  The system has a few kinks to work out (my "Second Amendment" alert emailed me the link to this robotics article this evening...) but the system is an interesting way to stumble across things I might otherwise miss.

This evening's alert clued me in on an article by Benjamin W. Cross and Stephen W. Pruitt entitled Dark Knights Rising: The Aurora Theater and Newtown School Massacres and Shareholder Wealth.  The Article appears in Volume 41 of the Journal of Criminal Justice.  Here is the abstract:

This study analyzes the stock price impact of the Aurora theater and Newtown (Sandy Hook) school massacres on both domestic (US) and foreign theater operators and US gun manufacturers in an effort to document the economic effects of these tragedies. 
The well-established “event study” methodology from the fields of economics and finance is employed to assess the impact of the shootings on the affected companies after controlling for risk and overall market movements. 
The Aurora theater shooting resulted in striking declines for Cinemark (the targeted theater) as well as major US competitors, but had no impact on overseas theater chains. Smith & Wesson (maker of the gun used in Aurora) showed no response, whereas Ruger (a competitor) exhibited large gains. Both Smith & Wesson and Ruger plunged after the Newtown shooting, although neither made the weapons used in the shooting. 
Contrary to prior research on workplace homicides, the results show that random mass shootings have profound effects on targeted companies. In addition, the results suggest the presence of a very strong “contagion effect” (where negative events affecting one company impact others in the same industry). The negative responses of both publicly-traded US firearms manufacturers to the Newtown shooting suggests a “sea-change” in the debate over gun ownership in the US.

Normally I would write off an article like this as involving subject matter that is typically outside of my area of expertise -- but the abstract's last claim about a "sea-change" in the gun ownership debate caught my eye.  I decided to read through the article to see what the authors had found.

As it turns out, the article is blatantly flawed and highly misleading.

Monday, October 7, 2013

Madigan v. Levin and the Relevance of Legal Academics

At Volokh Conspiracy, Will Baude posts about oral argument in the case, Madigan v. Levin and notes that the justices relied heavily on one of the amicus briefs, written by Stephen I. Vladeck, a law professor and Associate Dean at American University, in their questioning.  At SCOTUSBlog, Lyle Denniston remarks:

[A] brief that had been filed by law professors who specialize in the arcane field of court procedure had obviously drawn the Court’s attention, and the Justices spent so much time on whether the Seventh Circuit Court even had jurisdiction to decide anything that Illinois Solicitor General Michael A. Scodro had little time to argue against Levin’s constitutional claim.

As I mentioned in this previous post, there are some choice strategies that one can adopt in writing legal scholarship in order to maximize one's chances of being cited by the Supreme Court.  This case sheds light on an alternative means by which academics may influence opinions -- the writing of amicus briefs.  

Much has been written on amicus briefs in the Supreme Court.  For an informative survey of the amicus brief submission patterns and the Court's reliance on these briefs during the 2011-12 term, see this article from the National Law Journal.  The authors, Anthony J. Franze and R. Reeves Anderson, note that the Court cited the amicus briefs of academics five times over the course of the term.  For criticism of scholarly amicus briefs on the ground that scholars are two hasty in signing onto these briefs, see Richard H. Fallon, Jr.'s article here.  For an older, but more exhaustive treatment of amicus brief submission patterns and influence, see this article by Joseph D. Kearny and Thomas W. Merrill.

Notably, in Madigan, the brief was not filed on behalf of either party, and focused solely on arguing that the appellate court had made a mistake in jurisdiction.  The disinterested nature of the brief and its focus on issues that were unaddressed by the parties and amici likely contributed to the brief's credibility and made it more likely that the brief would be cited by the Justices.

While the Court has only just heard oral argument in the case, and while it is impossible to say with certainty how the Court will decide the case, the Court's focus on the issues raised in Vladeck's brief make it very likely that their decision will ultimately address the issue that Vladeck raises -- and their focus on the issue in oral argument indicates that Vladeck's argument might have a substantial impact on the outcome.

Ultimately, this story gives hope to those legal academics who want their work to have a direct impact on the workings of courts.  Even if one's area of study is obscure or "arcane," in certain circumstances, one's scholarship may very well contain the decisive arguments for a case before a court.

Today's Double Jeopardy Developments: Trayvon Martin and Edward Roach

My newly acquired Twitter account has clued me in on some interesting double jeopardy-related events that happened today.

UCLA Law Review Discourse has posted an essay by Adam Harris Kurland, entitled Not the Last Word, but Likely the Last Prosecution: Understanding the U.S. Department of Justice’s Evaluation of Whether to Authorize a Successive Federal Prosecution in the Trayvon Martin Killing, (and what a title that is!)  Here is the abstract:

In the aftermath of George Zimmerman’s state court acquittal in the Trayvon Martin killing, the U.S. Department of Justice is considering whether to bring federal criminal charges against Zimmerman arising out of the same incident. While such a dual or successive prosecution does not violate double jeopardy, the determination whether the federal government should bring charges turns on whether the Petite Policy, an internal U.S. Department of Justice Guideline, has been satisfied. Professor Kurland contends that because the requisites of the Petite Policy, that the prior state trial must have left a substantial federal interest demonstrably unvindicated, cannot be established, a federal prosecution should not be authorized. Rather, more appropriate and constructive nonprosecutorial alternatives should be pursued to address the myriad of criminal justice and social policy concerns impacted by the tragic incident.

The essay is short, interesting, and engaging, and its coverage of the Department of Justice's various considerations in deciding whether to prosecute a case is highly informative.  As the abstract indicates, the author notes that federal prosecution is appropriate in some circumstances, but the Zimmerman case lacks typical justifications for such a secondary prosecution.

Still on the subject of double jeopardy, but in an entirely different case, the Supreme Court today denied certiorari in Roach v. Missouri.  In Roach, the defendant, Edward Roach, was charged with the state crimes of unlawful use of a firearm and being a felon in possession of a firearm.  Roach was also charged by the United States with violating a federal statute prohibiting possession of firearms by felons.  Roach pled guilty to the federal charge and asked that the state felon possession charge, arguing that this prosecution was based on the same facts that underlay the federal charge.  The Missouri trial court dismissed that count, and Roach pled guilty to the unlawful use of a firearm charge.

On appeal, the Missouri Court of Appeals reversed the dismissal of the possession charge, noting that under the "dual sovereignty" approach to double jeopardy, a conviction in federal court would not foreclose a state prosecution based on the same facts.  Roach tried to appeal the Court of Appeals' decision to the Missouri Supreme Court, but was denied review.

Roach then petitioned for review in the United States Supreme Court, arguing that the Missouri Court of Appeals' dual sovereignty justification violated the Fifth Amendment's Double Jeopardy Clause.  The cert petition was drafted by the UCLA School of Law's Supreme Court Clinic and signed by Stuart Banner.  A copy of the petition is available here.  At the time the petition was filed, Orin Kerr noted that the petition raised some very interesting historical arguments, and argued that from an originalist perspective, the Court's longstanding precedent permitting federal and state prosecutions for the same offense was inconsistent with the original meaning of the Fifth Amendment.  The Constitutional Accountability Center filed an amicus brief in support of Roach - and also focused on historical arguments against the dual sovereign approach.

The significance of the Roach case was not lost on observers after the Zimmerman verdict, with Eugene Volokh noting the Roach petition's relevance on whether the Department of Justice should prosecute George Zimmerman.

Ultimately, it appears that Roach's history-based arguments failed to convince the Justices to revisit their longstanding precedent.  At the same time, the lessons that Kurland draws from the Zimmerman case indicate that while dual prosecution may occur in some circumstances, barriers in the Department of Justice stand in the way of this being a widespread practice.

Update: Supreme Court Denies Certiorari Petition in Sixth Circuit True Threats Case

I posted previously about this case, United States v. Jeffries, which involved a man who was convicted for violating a federal criminal threat statute when he posted an online video where he sang a song about how he wanted to kill the judge and other people related to his custody battle with his wife.  This case is similar to another, recent true threat case in the Third Circuit that I described here.

The question in both of those cases was whether making a true threat requires subjective intent to threaten another individual.  Both courts concluded that subjective intent was not required -- what mattered was whether the defendant's statements caused others to reasonably fear for their safety.

Today, the Supreme Court declined to review the case.  This is not surprising, since the only court of appeals to hold that subjective intent is required is the Ninth Circuit.  While there is a circuit split, the split was apparently not deep enough to prompt the Supreme Court to decide on this issue.

(H/T: Howard Bashman at How Appealing)

Sunday, October 6, 2013

Dogs Can be Weapons, But What About Cats?

The New York Times has an interesting story about cases where dogs were classified as weapons in cases involving possession or use of a deadly weapon.  The Times reports:

Courts around the country have long grappled with the question of canine weaponization. Over the years, judges have mostly arrived at the same conclusion: if you use Fido as a weapon, he becomes one.
“In the past, one had to really strive hard to convict somebody of a felony when a dog was the instrument that caused the damage,” said Kenneth M. Phillips, a Los Angeles-based lawyer focused on canine law. “Now, prosecutors are using these laws that usually apply to guns and other weapons to enhance charges. That is going on all over the country right now. Far more than it was even two years ago.”
. . . 
In Washington, a state appeals court denied a claim by a dog owner, Robbie Hoeldt, that his dog could not be considered a deadly weapon, even though it had attacked a police officer, Detective Bryan Acee. “If Hoeldt had used a gun instead of an attack dog,” the court wrote in 2007, “Detective Acee could have testified that Hoeldt pointed the gun at his chest.”

This raises a number of interesting questions. Would ownership of a dangerous dog be protected under the Second Amendment? Could other dangerous animals such as poisonous snakes be considered weapons under statutes banning possession or use of deadly weapons?

Upon first reading this story, I felt that -- as a cat person -- I would be safe from prosecution under this statute. While cats can be vicious if provoked, they are highly unlikely to cause life-threatening damage.

On the other hand, a number of people are highly allergic to cats.  Would it be assault with a deadly weapon if I were to loose a feline upon a person who I knew to be deathly allergic to cats?  My understanding is that, in general, for something to be a deadly weapon, it needs to be capable of causing death or great bodily injury.  I know that in California cases, determining "capability" to cause death or injury involves looking to the manner in which the object is used as well as to other relevant facts relevant to the issue.  (See People v. Aguilar, 945 P.2d 1204 (Cal. 1997)).  California has been fairly liberal in determining what deadly weapons may be, noting that batteries, rolls of coins, or bicycle footrests can be deadly weapons if enclosed in a fist while punching.  (In Re David V., 223 P.3d 603 (Cal. 2010).

My (admittedly hasty) research leads me to the conclusion that cats could be considered deadly weapons, at least under California law, if used in the appropriate circumstances.  Whether cats are protected by the Second Amendment is a question for another post.

Cutting Time Between Oral Arguments and Release of Opinions

Ryan Koopmans at On Brief posts about the Iowa Supreme Court's adoption of a term system that is modeled after the United States Supreme Court.  Under this system, the Iowa Supreme Court seeks to release every opinion on its docket for each term before the beginning of the next term.  This system has worked, with cases now being resolved in an average of 112 days after final submission (or 87 days, if one removes the notably complex cases from the equation).

Iowa is not the only state that has taken steps to cut time between oral arguments and the release of opinions.  California has notably done so with its 90-Day Rule.  This rule requires a decision on a submitted matter within 90 days of argument or final submission on that matter.  This rule affects judges at the trial level and at the appellate level.  On the appellate level, the complexity of submitted arguments requires judges to take special measures, as Benjamin Shatz notes in this short paper on the rule:

At the appellate level, the 90-day rule has an effect on the scheduling of oral arguments.  Ninety days may not be enough time to carefully analyze complicated legal issues, draft a well-reasoned opinion (especially one for publication), and obtain a majority of justices to sign the opinion.  As a result, California's appellate courts typically ensure timely compliance by entertaining oral argument only after they have a tentative decision.

Iowa Supreme Court's approach to reducing backlog is a lot less strict than California's approach, which cuts of pay for judges in the event that the judge fails to release an opinion by the deadline.  However, both states' approaches may raise concerns when it comes to the effectiveness of oral arguments.  Judges who are under a deadline to release an opinion may be pressured into forming an opinion on the case before the argument even occurs.  As Shatz notes, this seems to be the norm in California.

I would like to make clear that I did not think up this concern on my own.  Those who are interested in a full exposition of the situation and the concerns raised by California's rule should keep their eyes out for a forthcoming article by UCLA's Daniel Bussel.  I have not been able to find the paper on SSRN, but I know that it will eventually be released in the UCLA Law Review.

The Hearsay Implications of Defining Dogs as People

I posted this story from the New York Times on my page about Philosophy of Mind earlier, but I then realized that its title, "Dogs Are People, Too," and its implications -- that MRI research on dogs indicates that they have sentience and mental states and that they should be granted some form of personhood -- have interesting legal consequences.

Take, for example, the law of hearsay.  A statement is hearsay if it is made out of court and is introduced at trial for the truth of the matter asserted in the statement.  Rule 801 of the Federal Rules of Evidence defines "statement" as "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion."  Notice that one can only make a "statement" if one is a "person."

During the summer after my first year of law school, I interned in the Los Angeles Office of the District Attorney.  One case I worked on involved an eyewitness account that a murderer had, after killing the victim, fled from the victim's home across the lawn and jumped over a fence.  To corroborate the eyewitnesses, a trained dog was brought to the scene.  The dog, after smelling clothing belonging to the defendant, ran across the lawn to the fence -- taking the same path that the eyewitnesses said the killer had taken.

There was some dispute over whether the dog had been properly trained and whether too much time had past since the murder had taken place, but as I recall, this challenge did not succeed.

On the other hand, a far stronger challenge could be made against this evidence if the dog were considered to be a person.  The dog's action of running across the lawn was taken by the trainer (and introduced in court) as an indication of the path the killer had taken.  This indication would probably be considered an assertion -- while the dog was not speaking, it was nonverbally displaying the path of the scent it had been given.  If the court were to accept that the dog's action was a nonverbal assertion rising to the level of a statement, and if the dog were to be considered a "person," the court would probably need to conclude that the dog's statement was hearsay.

I am not sure how often this problem would arise.  Many situations involving dogs typically involve dogs that are trained to "alert" upon smelling drugs, with these alerts giving rise to probable cause for police to search people, vehicles, or packages for drugs.  These alerts would probably not be deemed hearsay, however, since they would typically be introduced for the limited purpose of showing why police acted the way they did after the dog's alert.  Moreover, even if the dog alert were hearsay, under Rule 1101, this wouldn't prevent the police from using the alert to obtain a search or arrest warrant.

People who advocate for the personhood of dogs and other animals must take into account all of the legal implications that follow from such a determination.  Assigning this status to dogs may have far-reaching consequences that could paralyze law enforcement.  Doing the same for cats, on the other hand, would not raise these concerns, at least not as far as I am aware.

Connecting Phone and Computer Use for Advertising Purposes

The New York Times has this story on several companies that are in the business of tying certain users to certain devices, and targeting advertisements to these users accordingly.  The Times reports:

Drawbridge is one of several start-ups that have figured out how to follow people without cookies, and to determine that a cellphone, work computer, home computer and tablet belong to the same person, even if the devices are in no way connected. Before, logging onto a new device presented advertisers with a clean slate. 
. . . 
Drawbridge, founded by a former Google data scientist, says it has matched 1.5 billion devices this way, allowing it to deliver mobile ads based on Web sites the person has visited on a computer. If you research a Hawaiian vacation on your work desktop, you could see a Hawaii ad that night on your personal cellphone.
For advertisers, intimate knowledge of users has long been the promise of mobile phones. But only now are numerous mobile advertising services that most people have never heard of — like Drawbridge, Flurry, Velti and SessionM — exploiting that knowledge, largely based on monitoring the apps we use and the places we go. This makes it ever harder for mobile users to escape the gaze of private companies, whether insurance firms or shoemakers.
With the rise of technology in phones and computers that blocks websites and advertisers from installing "cookies" to identify and track users, advertisers have been trying to find alternate methods of targeting users.  It would appear that the startups that the Times Describes have found a way to meet this need -- using statistical tracking methods to learn what websites device users visit, and figuring out how to use that behavior to determine who is using what device.

This development raises privacy concerns, especially since users who enable cookie-blocking technology, or who purchase devices that do not allow cookies, may believe that their information is not being obtained by advertisers.   For an interesting discussion of the breadth of information that advertisers gather and use, see this article by Hoofnagle et al.  There, the authors argue that privacy policy should adapt to address this phenomenon.

While technology has enabled users to control their release of information to some degree, developments in technology used by advertisers seems to be overcoming users' ability to keep their identities to themselves.  The ability of advertisers to connect devices further enables them to gain and use information on an even wider range of fronts.

Saturday, October 5, 2013

Mug Shots and Online Reputation

The New York Times has an interesting story about websites that publish mugshots, the business practices of these sites, and the impact that they have on people's lives.  Describing the case of Maxwell Birnbaum, who was arrested in 2012 for possession of drugs, the Times reports:

[T]he mug shot from his arrest is posted on a handful of for-profit Web sites, with names like Mugshots, BustedMugshots and JustMugshots. These companies routinely show up high in Google searches; a week ago, the top four results for “Maxwell Birnbaum” were mug-shot sites. 
The ostensible point of these sites is to give the public a quick way to glean the unsavory history of a neighbor, a potential date or anyone else. That sounds civic-minded, until you consider one way most of these sites make money: by charging a fee to remove the image. That fee can be anywhere from $30 to $400, or even higher. Pay up, in other words, and the picture is deleted, at least from the site that was paid. 
To Mr. Birnbaum, and millions of other Americans now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. But these pictures can cause serious reputational damage
The Times reports that these websites are the object of a class action suit, with plaintiffs claiming that these sites violate their right to publicity and that they cause reputational damage.  Legislators have also considered bills that limit the publication of these images.

The biggest problem with these countermeasures, the Times notes, is that the publication of public records is typically protected by the First Amendment.  There is nothing false about the records, and the images are publicly available before the mugshot websites post them, as the images are typically obtained from sheriffs' websites.  And as the Times admits, mugshots do not mean that somebody has been convicted of a crime -- it is simply evidence that somebody has been arrested.

With that in mind, the fact remains that while mugshots do not prove somebody is guilty of a crime, they still have a very negative reputational impact.  People tend see arrest records and mugshots of an individual and assume that the individual is guilty of something.  Moreover, people of color -- or at least, those with names that indicate minority status -- are more likely to be burdened by the reputational impact of these websites, according to this report by Latanya Sweeney (a summary of the report is available here).

The solution to this problem seems to lie in private, rather than government, action.  As the Times describes near the end of the article, making the existence and practices of mugshot websites known to the public has caused the sites to face substantial obstacles due to the reactions of private parties.  The sites now face challenges on the financial front, with entities like MasterCard refusing to do business with mugshot websites.  Google has also begun to de-prioritize these sites' images in its search results, making it less likely that those searching for individuals' names will come across mugshots.

It will be interesting to see if public attention to these practices has any impact on these sites' practices or prominence.  If it does, this would be an interesting example of private governance in the internet domain.  I have my doubts that this problem will go away entirely, however.  Especially when it comes to online advertisements, the parties involved all have a great deal of financial interest in the matter.  Search engines want the income they obtain from ad space they can sell to mugshot websites, and those websites want the prominence that search engines give them.

In the meantime, the only thing that people can do to avoid reputational damage might be to have a name as obscure as "Michael Smith."

Friday, October 4, 2013

Strict Liability for Drone Torts?

Over at the Volokh Conspiracy, Bryant Walker Smith has been posting about the development of automated technology and the regulatory and legal challenges that this technology will raise.  One of these recent posts concerned the safety of automatic cars, a topic that has gained substantial attention.

This conversation fits into a broader conversation about drones, both autonomous and remote-controlled, and how to stay safe from harm in a world filled with drones.  Benjamin Wittes notes the danger of potential drone crashes, and Kenneth Anderson posts about similar safety concerns.  News outlets have also raised this concern (see here and here).  Airborne drones deserve special attention now, as the Federal Aviation Administration will be integrating these drones into U.S. airspace with a deadline of 2015 to develop the relevant regulations.

Ensuring the safe use of drones is a complicated endeavor.  Some commentators express reservations about the FAA's ability to effectively regulate this fast-developing technology, especially given the volume of drone use that the FAA predicts.  Others are more optimistic, with John Villesanor noting that effective safety regulations could also protect privacy.  Some citizens are taking matters into their own hands, although this is frowned upon by the government.

While regulations are all well and good, I think that an effective solution lies in tort law.  Specifically, courts could treat drones as the next generation of abnormally dangerous animals, ultrahazardous activities, or water-filled Coal Shaft (see, Rylands v. Fletcher, L.R. 3 H.L. 330).  Yes, I speak of strict liability for drone torts; a presumption of liability in cases where the plaintiff is physically injured by an airborne drone.

My argument is motivated by Haddock v. Thwale, an insightful (if fictitious) case presented by A.P. Herbert in his book, Uncommon Law.  There, the court held that operators of motor vehicles were to be held strictly liable, as these vehicles were no different from a dangerous animal that one allows out of one's property to run free and wreak havoc.

Courts, unfortunately, did not adopt this approach.  If they had, every citizen of Los Angeles would be mired in litigation at all times.  Lawyers would thrive.  Drones present a new opportunity for this standard to be considered and applied.

I limit my proposal to airborne drones because from what I have heard, driverless automobiles are far safer than human-piloted vehicles, and many torts arising from accidents involving robotic cars will likely be based on the mistakes of humans.  Moreover, I limit my argument to physical injury cases because the less-tangible nature of privacy cases would make plaintiff-side abuse of tort suits more likely.  On the other hand, if we are to truly assuage critics' fears of privacy violations in the age of drones, perhaps this strict liability framework should extend to privacy invasion cases as well.

This proposal will likely meet resistance, both from those who encourage the use of drones and from those who will argue that this rule would lead to an increase in litigation.  While this approach may lead to more lawsuits, a clear rule of strict liability would encourage the safe manufacturing and use of drones, and would be a far simpler approach than dozens of new regulations.

Finally, this approach would make first year torts classes far more exciting.