Sunday, May 28, 2017

In my opinion, my Electoral College margin was 538 votes

The President on Twitter this morning: "It is my opinion that many of the leaks coming out of the White House are fabricated lies made up by the media." And "it is very possible that those sources don't exist but are made up by fake news writers." A few commentators have suggested that these hedges signal that Trump has "lawyered up" and has someone in the White House counsel vetting his tweets.

But any lawyer knows that slapping "In my opinion" or "I believe" or similar hedges in front of verifiable assertions does not render them something other than statements of fact. It certainly would not get him out from under defamation liability (presidential immunity to one side). And it probably would not work politically to say that it was only his opinion that the leaks were fabricated when it turns out that these leaks were, in fact, coming from the WH. No good lawyer would think or advice otherwise.

If anything, this sounds like what a non-lawyer would think is enough to create a statement of opinion.

Posted by Howard Wasserman on May 28, 2017 at 11:53 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

Saturday, May 27, 2017

A Benefit of Magnanimity

Our opinions sometimes inform our personal identities.  Changing your opinion on some subjects may also require you to change how you self-identify.  Changing an opinion on these issues may also cause you to lose your membership in a group.  On some issues, changing your opinion might cause your social group to ostracize you.   It isn't easy to change a position you took publicly.

When many people hold the same opinion, they will not all abandon it at once. Some people may hold an opinion more because they belong to a group that holds the opinion than because of any particularly well thought out rationale.  Some people will switch on an issue before others.  

We can treat people changing their beliefs in different ways.  One approach may be to hector them for taking so long to come around.  While they might be done holding the opinion, we might not be ready to stop bashing them for holding it in the first place.  This sends a terrible message to persons thinking about making the jump.  It tells them that they may lose standing in their current community of belief and not be welcomed into another.  Publicly criticizing others for taking too long to change their opinion seems likely to make it harder for others to take the jump.

Magnanimity seems a better approach.  It keeps the focus on the beliefs at issue instead of on the person holding the belief.  It also gives others an incentive to move to your side.

With that said, I'd like to announce that I've changed my mind:  I will now use the Oxford comma.  I'm still evolving on one or two spaces after a period.

Posted by Benjamin P. Edwards on May 27, 2017 at 09:01 PM | Permalink | Comments (2)

Friday, May 26, 2017

“Bright Data”  

At the core of the rise of data-driven policing is the ability to predict risk.  Predictive policing does not actually predict crime, but instead provides a mathematical assessment of heightened risk at certain places or with certain people.  The technology analyzes risk, and the inputs are generally identifiable factors that can be replicated across jurisdictions.

For example, certain environmental factors encourage crime in certain places.  These risks may involve fixed structures (abandoned property, empty lots), poor lighting (to avoid detection), escape routes (to avoid capture), access to legitimate businesses (to hide one’s intention), etc., with the growing number of risk factors adding up to a heighten likelihood of criminal activity.  Crunch the numbers, study crime patterns, and you can forecast where crime is most likely to occur.   

Similarly, certain socio-economic factors and lifestyle choices can heighten risk.  If you are involved in gang activities, drug activities, and live in poor areas in certain cities, your likelihood of being involved in a shooting is significantly greater than others without those risk factors.  Add in proximity to past violence, arrests, and past acts of gun violence, and particular people can be targeted as more likely to continue along that path.

At a very simple level (hidden by a lot of complex math) real world inputs get fed into an algorithm to create predicted levels of heightened risk.

In the policing context, this can be helpful to guide police to patrol areas predicted to be of higher risk, or to target individuals identified to be at a higher risk of crime. 

But, notice that the prediction of risk does not determine the remedy of a policing response.  All of the fancy risk assessment only goes to identify the places or people who might be at risk of being involved in crime.  The technology does not speak to how one might remedy that risk.  More after the break.

Continue reading "“Bright Data”  "

Posted by Andrew Guthrie Ferguson on May 26, 2017 at 11:49 AM | Permalink | Comments (1)

Thursday, May 25, 2017

Scope of injunction in the 4th Circuit travel ban decision

The Fourth Circuit divided 10-3 in affirming the district court and enjoining the second travel ban. The court agreed to keep the injunction nationwide, but reversed the part of the injunction that ran against the President personally (although the injunction stands as to other federal officials involved in its enforcement). I will leave substantive analysis to others, but check out here, here, here, and here. Given my interests, I want to address two points about the scope of the injunction.

Continue reading "Scope of injunction in the 4th Circuit travel ban decision"

Posted by Howard Wasserman on May 25, 2017 at 05:52 PM | Permalink | Comments (0)

The Allure of Big Data Policing

As I mentioned in my initial post, the goal of my book project on “The Rise of Big Data Policing” is to examine how technology is changing the “who,” “where,” “when,” and “how” we police – especially in large urban cities.  As I write in the introduction:

"New technologies threaten to impact all aspects of policing, and studying the resulting distortions provides a framework to evaluate all future surveillance technologies. A race is on to transform policing. New developments in consumer data collection have merged with law enforcement’s desire to embrace “smart policing” principles in an effort to increase efficiency amid decreasing budgets. Data-driven technology offers a double win—do more with less resources, and do so in a seemingly objective and neutral manner."

In the book, I make the argument that in addition to the strong lure of new technology and cost efficiencies, there is an openness to new “data-driven technologies” as a result of the recent upheaval arising from a heightened awareness about police violence in America. 

Over the last few years – and again last week – the death of African Americans at the hands of police officers has generated protest, anger, and dissent. In addition, policing systems like the NYPD’s stop and frisk program created fear, resentment, and frustration about how citizens should be treated by law enforcement.  My argument is that out of this tragedy and frustration, the idea of policing strategies being guided by data-driven objectivity has become quite alluring.  Replacing human discretion with algorithmic precision – at least in theory – seems like a move toward progress.  Following data and not hunches seems (again in theory) like an improvement.  More after the break.

Continue reading "The Allure of Big Data Policing"

Posted by Andrew Guthrie Ferguson on May 25, 2017 at 10:42 AM | Permalink | Comments (0)

Wednesday, May 24, 2017

Doctrine trumps party loyalty (sort of) in two race districting decisions

SCOTUS decided two important cases dealing with race-based districting this week. As I have noted in an earlier post, this area of doctrine has evolved in a suspiciously partisan way. So the question naturally arises: Was this week's pair of decisions mostly a product of partisan loyalty, or did they have some hard core of non-partisan doctrine behind them?

This week, I am happy to report that it looks like doctrine is trumping party. In Cooper v. Harris and Bethune-Hill v. Virginia State Bd. of Elections, the constitutional doctrine of "strict-ish" scrutiny for racial classifications delivered two victories for the "color-myopic" constitution (not to mmention the Democratic Party in the South), winning (in Cooper) bi-partisan votes from a coalition of the four liberal justices plus Thomas. After the jump, a moral for this parable: You might only need a peppercorn of loyalty to legal principle (in this case, from Justice Thomas) for that principle to be durable on a closely and ideologically divided bench. But that legal principle would have a much easier time if it were embodied in crisp, clear precedents that allay justices' concerns about precedents' being manipulated for partisan reasons.

Continue reading "Doctrine trumps party loyalty (sort of) in two race districting decisions"

Posted by Rick Hills on May 24, 2017 at 12:00 AM | Permalink | Comments (7)

Tuesday, May 23, 2017

Another unwarranted universal/nationwide injunction

Last week, Judge Jones of the Western District of Washington issued a nationwide TRO against enforcement of a federal regulation barring attorneys from providing limited limited legal services for otherwise-pro bono litigants in immigration proceedings. The regulation requires attorneys to file a formal appearance as counsel of record in order to provide any representation, something the plaintiff Northwest Immigrant Rights Project, a nonprofit advocacy organization, cannot afford to do in all cases for all clients. NWIRP argued that the regulation violated the First Amendment.

As always, the court made the order nationwide: "Counsel for the Government represented during the hearing on the TRO that it desired to continue issuing cease and desist letters to non-profit organizations providing legal services to immigrants. As such, the Court grants this TRO on a nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this TRO on a nationwide basis."

Even if universal injunctions might at times be warranted, this is not one of those times. NWIRP represents clients only in the Pacific Northwest, so it would be sufficiently protected by an injunction prohibiting the issuance of cease-and-desist letters to it in Washington. We could even extend that to the issuance of letters to NWIRP anywhere in the country (a real "nationwide" injunction). But NWIRP's is in no way deprived of complete relief if the government issues C/D letters to any other lawyers or nonprofit organizations anywhere else in the country. There is no reason, and no basis in principles of equity and judgments, for one district court in a non-class action to freeze enforcement as to every other person everywhere in the country.

But we have reached a point where universality is automatic and unthinking. Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal.

Posted by Howard Wasserman on May 23, 2017 at 06:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

An Updated Fiduciary Forecast

As the clock ticks down, the fiduciary rule seems increasingly likely to go into effect.  This morning, Secretary Acosta dropped a surprising op-ed in the Wall Street Journal announcing that he would not delay the fiduciary rule's implementation because Labor's review has "found no principled legal basis" to delay the rule's effective date.   The op-ed reads almost as a civics lesson.  Acosta pledges "respect for the rule of law" and explains how the notice and comment procedure limits the ability of administrative agencies to regulate on whims.  

This does not mean that the fiduciary fight is finished.  The op-ed promises to reopen public comment on the rule and consider the issue yet again.  Acosta explains that the administration has "respect for the individual" and "presumes that Americans can be trusted to decide for themselves what is best for them."  In the financial advice context, the argument makes little sense.  If a retirement saver knew what was best for him, he would not need a financial adviser.  We seek out advice when we do not know how to act in our own best interest.  A paean to freedom of contract here amounts to a defense of the freedom to fleece and to be fleeced.   

In a way, this development looks like a blown play from the administration.  The Trump team may have assumed that its initial sixty-day delay opened a sufficient window for Congress to kill the rule, leaving the President's hands cleaner.  This outcome seems particularly surprising given the Trump team's general opposition.  Anthony Scaramucci compared the fiduciary rule to Dred Scott--contending that the rule discriminated against financial advisers. Gary Cohn argued that the rule should be scrapped because it was "like putting only healthy food on the menu, because unhealthy food tastes good but you still shouldn’t eat it because you might die younger."

In any event, the rule does not prevent retirement savers from making unwise investments.  It simply limits the ability of financial advisers to steer clients toward poor choices that generate more profits for the financial adviser.

Posted by Benjamin P. Edwards on May 23, 2017 at 04:30 PM | Permalink | Comments (0)

Big Data Policing

I wanted to spend a bit of time this week discussing my forthcoming book “The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement” (NYU Press, release date Oct. 2017).

The book describes how new predictive technologies and surveillance capabilities are changing the “who,” “where,” “when,” and “how” law enforcement does its job.  As I write in the introduction (available here):

"Roll call. Monday morning. Patrol officers receive digital maps of today’s “crime forecast.” Small red boxes signify areas of predicted crime. These boxes represent algorithmic forecasts of heightened criminal activity: years of accumulated crime data crunched by powerful computers to target precise city blocks. Informed by the data, “predictive policing” patrols will give additional attention to these “hot” areas during the shift. Every day, police wait in the predicted locations looking for the forecast crime. The theory: put police in the box at the right time and stop a crime. The goal: to deter the criminal actors from victimizing that location."

More after the break.

Continue reading "Big Data Policing"

Posted by Andrew Guthrie Ferguson on May 23, 2017 at 11:11 AM | Permalink | Comments (1)

Monday, May 22, 2017

The Ticking Fiduciary Clock

Despite an initial 60-day delay from the Trump administration, the Department of Labor's fiduciary rule now nears its June 9th effective date. The rule requires financial advisers to give advice in the best interests of their clients when giving advice about retirement accounts.  With just eighteen days to go, it seems increasingly likely that the rule may actually go into effect.

Some legislative and administrative risks remain for the rule. The U.S. House of Representatives seems likely to pass the Financial CHOICE Act of 2017 in the near future.  It spans about six hundred pages and seeks to unwind many of Dodd-Frank's reforms and, among other things, repeal Labor's fiduciary rule. The legislation has been widely criticized and may fare poorly in the Senate.  Earlier today, John Coffee memorably described it as something "drafted by the staff of a libertarian think tank . . .  after they had all smoked something very strong."   Given the strong opposition to the CHOICE Act, a legislative repeal appears unlikely before June 9th.

The fiduciary rule still faces administrative risks.  President Trump issued a memorandum directing Labor to review the fiduciary regulation. In response, Labor delayed the rule by 60 days to conduct its review.  The "review" may be mere pretext for rescinding the regulation.  According to one report, the new Secretary of Labor Alexander Acosta has begun casting about for a way to "freeze" the fiduciary rule in a way that will "stick" as his top priority.  These reports have drawn harsh criticism from Democratic Senators questioning whether Secretary Acosta "prejudged the outcome of the review."  If Labor moves to delay the rule again, consumer protection groups seem likely to challenge the decision in court.  

As the clock ticks down, it will be interesting to see what justification Labor might trot out to block its own rule or whether it will allow the rule to go into effect.

 

Posted by Benjamin P. Edwards on May 22, 2017 at 08:29 PM | Permalink | Comments (0)

JOTWELL: Thomas on Wistrich and Rachlinski on implicit bias

The new Courts Law essay is from Suja Thomas (Illinois), reviewing Andrew J. Wistrich and Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, a forthcoming book chapter in a volume exploring implicit bias in the judicial system.

Posted by Howard Wasserman on May 22, 2017 at 10:47 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Baseball rules--collect them all, trade them with your friends

For my recent birthday, my wife and daughter got me a baseball card for the Infield Fly Rule. The card, from 1978, features a picture of an infielder (for you fans of late-'70s baseball, it is Jerry Remy, then of the Angels, later the Red Sox) sitting under a fly ball with an umpire (decked out in very-1970s umpire gear and the old league-specific hat) standing in the background, although he has not yet signaled infield fly. The back of the card explains and defends the rule as "Unique and Necessary."

It turns out to have been part of a series of cards produced by the company Sportscaster from 1977-79 on "The Rules." The cards featured a photo of player in action, with an explanation of the rule or play on the back. According to this list, there were cards for Interference, the Hidden-Ball Trick, Pickoff, Rundown, and other plays and rules. I was in the heart of my baseball-card collecting phase in this period, so I am disappointed that I did not know about these at the time. I was fascinated by the Infield Fly Rule even then.

Posted by Howard Wasserman on May 22, 2017 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Police in changing communities

Some good stuff in this lengthy Buzzfeed piece on the tensions between the (overwhelmingly white) police and the increasing Black and minority communities in Troy, New York. Two items to pull out that are common in these types of stories, but illustrate some things I have been thinking about:

1) Describing the cycle that multiple incidents followed: "a stop for a low-level infraction; an interaction that escalates; use of force by officers; a charge of resisting arrest, dismissed by prosecutors or acquitted at trial; and then a lawsuit settlement with the city that allows officers to deny the allegations of misconduct." And four officers involved in multiple incidents remain on the police force. And the city works these (relatively small) settlements into the cost of doing business, so civil damages litigation produces no political or accountability pressure to change its policies or the behavior of its officers.

2) Among the reforms the chief of police proposed were dashcams, which were opposed by the union and ultimately rejected. Again, a common reaction--police unions are the one stakeholder not enamored of cameras and many unions are going in the opposite direction of moving away from initial support.

Posted by Howard Wasserman on May 22, 2017 at 08:06 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 21, 2017

Are esports sport?

It has been awhile since I wrote on the bar debate over what is and is not sport. Now Gizmodo asks the question about esports.

My preferred definition of sport has four elements: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. On that definition, esports fail on # 1--operating a game console involves fine rather than large motor skills.  I also would question # 2--the competitors small-motor physical actions do not do all the work--it is the complex machine translating those physical actions into something bigger on the screen. So while esports do require "training, endurance, mental focus, and, yes, physical precision," the physical precision is of the wrong type and works too indirectly.

The comments are interesting in that several people have argued "not a sport" based on a definition that requires direct interaction between competitors and the possibility of one competitor thwarting another.

Posted by Howard Wasserman on May 21, 2017 at 07:26 AM in Howard Wasserman, Sports | Permalink | Comments (6)

Friday, May 19, 2017

Questioning DOJ Independence

Recent new stories suggest that part of the conflict between James Comey and President Trump arose out of Comey’s desire to keep the FBI independent from the administration.  Comey’s goal was not an idiosyncracy; there are regulations that limit and channel contact between the White House and officials at the Department of Justice.

Given the events of the past several months, a debate has emerged over how independent the FBI can or should be from the administration.  Most of what I read seems to assume that such independence should exist, and that it is an unmitigated positive.  I am not so sure. 

To the extent that the FBI is independent from the administration, the FBI is not democratically accountable.  Of course, most democratic accountability in the Executive Branch is indirect.  The primary democratic check on executive officials is the presidential election.  The president can select the individuals he or she wants to appoint to various positions, the president can tell that official which policies to pursue, and the president generally has the ability to fire the official.  But indirect accountability comes at a price: independence from the administration.

Continue reading "Questioning DOJ Independence"

Posted by Carissa Byrne Hessick on May 19, 2017 at 11:30 AM in Criminal Law, Law and Politics | Permalink | Comments (6)

1L Fear

From the days of The Paper Chase to the constricted tightness in the air around exam time, “fear” is part of law school.  But, is there an optimal level of “fear” that creates healthy focus, but not paralyzing distraction?  Is any fear constructive, or is it all a negative emotion that should be eliminated? Should fear be part of the 1L experience?  Does it help, hurt, distort, or destroy students?  As the world changes (with different expectations of students and from students), does fear have any place in the first year law school curriculum? 

As a law professor “fear” is a tool.  Some professors use fear in obvious bullying ways.  Some professors use fear though humor and humiliation.  Some professors make you fearful of disappointing them.  Ask any 1L why they are always prepared, and in between answers about “love of the law,” intellectual curiosity, and ambition, you will get the answer “I was afraid not to be prepared.” 

1L classes set up in a Socratic or semi-Socratic teaching style generate fear of embarrassment.  Students are on call, on stage, called out to answer in public.  The fear of ignorance, confusion, or saying the wrong thing is present every day.  Professors demand answers to their questions.  And, the process generates a natural tension that can make some people afraid.  Add in differences in learning styles, culture, and a host of power dynamics, and law schools create an intimidating learning environment that generates a natural fear.

Even with professors who try to be nice, open, inclusive and “definitely not scary,” fear exists.  I don't consider myself a scary teacher.  I teach soft-Socratic with plenty of humor, banter, and encouragement.  I view myself as a "coach" not a drill sergeant (or appellate judge).  But, there is still fear.  The role of standing up in front of dozens of students and commanding attention, respect, and precision with the subject matter generates a healthy fear.

And, that is my question -- is fear healthy?

Again, looking at my own law school experience (and recognizing my own privileged status and engagement) fear definitely motivated me.  I was fearful of being called on (I can still hear the deafening sound of my own heart beating when I knew I was next to be called on in class).  I was fearful about failing (or at least not doing as well as I could).  And, I worked really hard, less out of love of contracts or torts, and more out of a fear of not being prepared and being called out for that lack of preparation.

I could be wrong, or a product of another generation, but fear of not doing well, of failing to meet expectations, or of literally failing law school was ever present.  Fear motivated me (and I believe others) which is why it was intentionally or unintentionally fostered by law professors trying to motivate mastery of the law.

Yet, fear is not a part of other educational environments.  You don't think of high school English class as frightening.  You don't necessarily think of college seminar courses motivated in any way by fear.  While there are certain professors who emulate John Houseman in their lectures (a style that pre-dates The Paper Chase), much of the undergraduate experience is decidedly not Socratic. It is still stressful, but not full of fear.  One reason why students have a difficult time adjusting to “learning the law” involves a greater sense of fear.  

And, I can't imagine fear is scientifically proven to improve learning.  I am no expert, but learning theory seems to suggest otherwise.  And, the intentional creation of fear in a classroom has to be distracting if not disabling to many students.  Fear can bring with it class, gender, and racial power dynamics and can interfere with interpersonal relationships and learning.

So of all the possible motivational emotions, should law schools encourage fear?  Should we make a conscious effort to reduce fear in the classroom?  Should we be more consumer friendly and kind?  Should we replace fear with inspiration? Or collaboration? Or self-reflection?  Or self-reliance?

Or, is the fear that motivates being 100% prepared a life skill we want to cultivate in lawyers?  Should we turn up the pressure and demand more work and stress from our students to be prepared for the always demanding practice of law?  Should every class be like an appellate argument? 

I am afraid I don't know the answer, but think it worth discussing?

Posted by Andrew Guthrie Ferguson on May 19, 2017 at 06:25 AM | Permalink | Comments (13)

Thursday, May 18, 2017

How other law schools do things

Looking for some ideas on how law schools handle some faculty matters.

1) Course/credit releases. How do you handle periodic/special releases from the regular number of courses and credits (whether from 4 to 3 or 3 to 2). Not thinking about faculty buying out, but rather  one-year reductions because of big scholarly projects, etc. How often can faculty do this? Who decides--the dean, faculty, or some combination? Is there written criteria as to what justifies it or is left to decanal discretion? Do the credits get made up in a subsequent year? Is it a banking system?

2) Co-authored articles for P&T. How are P&T committees handling co-authored works in evaluating a colleague's productivity and in deciding what to send for outside review? Are such works being discounted? Do you ask the candidate for a breakdown of who did what or how the writing process worked on the project?

Please respond in comments.

Posted by Howard Wasserman on May 18, 2017 at 03:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The "Fellowship Track": A Plea for Second Thoughts

Building on my earlier post and the comments on it, including mine: There is some agreement there, which I share, that a major contributing factor to the kinds of standardized rhetorical strategies and approaches we are seeing in a lot of (well-placed) law review articles these days--novelty or "under-theorized" claims that are excessive in quantity and substance; sometimes glib Clever Labels strategies; grand claims about the article's importance; overbreadth in treatment; efforts to turn (or portray) what might have been successful and modest "base hit" pieces into home runs, thus making it difficult to dig through the grand claims to find the valuable substantive core and raising the likelihood of fly balls; and so on--is the move to a fellowship model in training and hiring law professors.

As I say below, I think there are reasons for this move and that it has a number of virtues. But I think there has been too little consideration and open discussion of the model's flaws and dangers. In particular, those who run these programs and train the fellows at the high-ranked schools that generate many fellows, including the most successful ones, have not been terribly vocal in discussing what they do and its costs and benefits, whatever internal discussions they may (or may not) be having about them. That's especially dangerous because when it comes to hiring, faculties often consist of a few influential opinion-movers and a fair number of more passive voters, many of whom neither follow the trends closely nor think much about them. They also tend to follow the lead of the elite schools. That means a hiring trend can build easily and without much discussion, especially if the opinion-movers at the hiring schools are (as they sometimes or often are) just chasing the metrics or internalizing trends in the community, without second-guessing these criteria or the trend itself. And there a couple of other reasons, also covered below, why this trend can build without much second-guessing, especially public second-guessing.

One of my favorite movie quotes--I've used it in an article or two--is from Miller's Crossing: "I'd worry a lot less if I thought you were worrying enough." We're not worrying enough about this trend. I emphasize again that there are fair reasons for this model to develop. I'm not trying to throw out the baby (or the babies--the entry-level candidate/fellows themselves) with the bathwater. Criticizing an approach is not the same as urging that we get rid of it entirely. But we do need much more thinking and discussion, and more criticism, of the burgeoning fellowship model. 

As always, it's a long post. I've spared you by giving the thesis above. Read the rest at your leisure and at your own peril. Comments welcome.  

Continue reading "The "Fellowship Track": A Plea for Second Thoughts"

Posted by Paul Horwitz on May 18, 2017 at 02:45 PM in Paul Horwitz | Permalink | Comments (25)