Category: General Law

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FAN 38 (First Amendment News) Abrams Institute to host conference on Net Neutrality

abrams-logoOn November 3rd, the Floyd Abrams Institute for Freedom of Expression will host a conference entitled Net Neutrality: From Debate to Policy Decisions. The conference will take place at the Century Association located at 7 West 43rd Street in New York City. The event starts with breakfast at 7:30 a.m. and ends promptly at 9:20 a.m. Here is a description:

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality. 

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality.

Panel speakers

 Registration

A fee of $35 per person will be charged to cover the cost of the continental breakfast. Go here to register. The registration deadline is Thursday, October 30th.

 CLE Credit 

One and one half (1.5) CLE credit hours in Professional Practice (corporate) will be available for this program, which is transitional and non-transitional in nature. Preregistration is required for CLE credit.

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 Related Articles

→ Upcoming AALS Panel Discussion

Petition to Watch 

At its Conference on October 31, 2014, the Court will consider the following free speech petition:

Issues: (1) Whether compelling a noncommercial pro-life speaker to declare it lacks a medical license passes strict scrutiny; and (2) whether a compelled speech law is unconstitutionally vague if the city can deem speakers as needing to comply, because of their “appearance,” without any ability for the speaker to know whether it must comply.
(Hat tip to Maureen Johnston)
Lithwick takes swipe at Roberts Court
Dahlia Lithwick

Dahlia Lithwick

In a new essay titled “The Courts’ Baffling New Math,” the ever feisty Dahlia Lithwick, the Supreme Court commentator for Slate, argues:

“The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the Court with the utmost reverence and solicitude.”

Later in the same essay, Lithwick adds:

“This brings us back to the First Amendment, seemingly the only right that truly counts anymore in America. Why has the constitutional right to be heard all but overmastered the right to vote or legally terminate a pregnancy? Maybe the court is still capable of hearing even as it loses the ability to see? Or maybe the powerful voices of Fred Phelps, Shaun McCutcheon, and Anthony Elonis—the creatures who rightly are allowed to say and do horrible things in the name of free speech—count for more than the hundreds and thousands of voiceless voters and abortion-seekers who are seemingly not even important enough to name?”

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The (Non)Finality of Supreme Court Opinions

I finally got around to reading Richard Lazarus’s draft paper (forthcoming in Harvard Law Review) on how the Justices revise their opinions after they are issued and before they are officially published.  This is well worth your time.  Lazarus identifies a significant problem, worked hard to identify opinion edits that are not made in a transparent process, and makes some sound suggestions for reform.  I also learned a lot about the role of the Supreme Court Reporter, which I’ve always found a bit obscure, and learned that there is a formal process to point out errors in opinions.

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Predicting the Supreme Court Using Artificial Intelligence

Predicting Supreme Court Outcomes Using AI ?

Is it possible to predict the outcomes of legal cases – such as Supreme Court decisions – using Artificial Intelligence (AI)?  I recently had the opportunity to consider this point at a talk that I gave entitled “Machine Learning Within Law” at Stanford.

At that talk, I discussed a very interesting new paper entitled “Predicting the Behavior of the Supreme Court of the United States” by Prof. Dan Katz (Mich. State Law),  Data Scientist Michael Bommarito,  and Prof. Josh Blackman (South Texas Law).

Katz, Bommarito, and Blackman used machine-learning AI techniques to build a computer model capable of predicting the outcomes of arbitrary Supreme Court cases with an accuracy of about 70% – a strong result.  This post will discuss their approach and why it was an improvement over prior research in this area.

Quantitative Legal Prediction

The general idea behind such approaches is to use computer-based analysis of existing data (e.g. data on past Supreme Court cases) in order to predict the outcome of future legal events (e.g. pending cases).  The approach to using data to inform legal predictions (as opposed to pure lawyerly analysis) has been largely championed by Prof. Katz – something that he has dubbed  “Quantitative Legal Prediction” in recent work.

Legal prediction is an important function that attorneys perform for clients. Attorneys predict all sorts of things, ranging from the likely outcome of pending cases, risk of liability, and estimates about damages, to the importance of various laws and facts to legal decision-makers.   Attorneys use a mix of legal training, problem-solving, analysis, experience, analogical reasoning, common sense, intuition and other higher order cognitive skills to engage in sophisticated, informed assessments of likely outcomes.

By contrast, the quantitative approach takes a different tack:  using analysis of data employing advanced algorithms to produce data-driven predictions of legal outcomes (instead of, or in addition to traditional legal analysis).  These data-driven predictions can provide additional information to support attorney analysis.

Predictive Analytics: Finding Useful Patterns in Data

Outside of law, predictive analytics has widely applied to produce automated, predictions in multiple contexts.   Real world examples of predictive analytics include: the automated product recommendations made by Amazon.com, movie recommendations made by Netflix, and the search terms automatically suggested by Google.

Scanning Data for Patterns that Are Predictive of Future Outcomes

In general, predictive analytics approaches use advanced computer algorithms to scan large amounts of data to detect patterns.  These patterns can be often used to make intelligent, useful predictions about never-before-seen future data.  Many of these approaches employ “Machine Learning” techniques to engage in prediction. (I have written about some of the ways that machine-learning based analytical approaches are starting to be used within law and the legal system here).

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Mea Culpa

My ongoing research on the meaning of the Bill of Rights has changed my view of something that I said in my book on William Jennings Bryan.  Admitting error is an important part of blogging and scholarship, so let me explain.

One theme in the book is that incorporation suffered a setback due to the defeat of the Populist Party.  Basically, the idea is that there was some support for extending parts of the first set of amendments to the states into the 1890s on the Supreme Court, but that support dried up in the wake of the civil unrest that rocked the country in those years.  I then went further and said that Bryan’s defeat in 1900 on imperialism deepened this trend.  Here’s what I said:

“The issue of whether the Constitution should extend to the territories (and thereby limit congressional discretion was similar to the issue of incorporation.  For both, the issue was whether constitutional rights or provisions should be expanded to new political units (the states or the territories).  And the Court’s rejection, in a series of cases, of jury trials and other constitutional rights in the Philippines was partly prompted by a desire to curb dissent, as were some of its decisions with respect to the Populists.  In fact, after the Spanish-American War, the United States met a serious revolt in the Philippines with a harsh response that was not at all consistent with the Cruel and Unusual Punishments Clause.  Both abroad and at home, the Bill of Rights was on the defensive by 1900.”

What’s wrong with this?  It puts too much emphasis on constitutional law and not enough on what Congress did in extending part of the Bill of Rights to the Philippines in 1902.  That was an important boost to the Bill of Rights–far more important than anything since Bingham’s advocacy for incorporation during the Thirty-Ninth Congress.

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RBG revises opinion after professor flags error

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often.

So when it happens, some of us think that credit should be given. Okay? So, onto the story, albeit the brief version.

In a post on his Election Law Blog yesterday, Professor Rick Hasen wrote:

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

By way of an update, he added: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX.

In response, Justice Ginsburg revised her dissent, as noted by Lyle Denniston over at SCOTUSblog:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

Nothing groundbreaking, but noteworthy nonetheless. Meanwhile, kudos to Professor Hasen (and his tipsters) for helping to get the official record straight.

Re correcting the official record, see: Adam Liptak, “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” New York Times, May 24, 2014 (“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”).

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FAN 37 (First Amendment News) McCutcheon case produces flood of scholarly commentary — 41 works!

UPDATED: 10-24-14

Before proceeding to the scholarly output on McCutcheon, here is where we stand this Term on First Amendment free expression cases:

Review Granted

  1. Elonis v. United States (to be argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar
  3. Reed v. Town of Gilbert

Review Pending

  1. Pregnancy Care Center of New York v. City of New York 
  2. Vermont Right to Life Committee, et al v. Sorrell
  3. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission

Review Denied

  1. City of Indianapolis, Indiana v. Annex Books, Inc.
  2. Ashley Furniture Industries, Inc. v. United States 
  3. Mehanna v. United States 

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Erin Murphy arguing in McCutcheon case

Erin Murphy arguing in McCutcheon case

The decision in McCutcheon v. Federal Election Commission (2014) is barley six months old and it has already produced an abundance of scholarly commentary, including books, symposia, and articles — no fewer than 40 such works. And all of this before the revered Harvard Law Review issue dedicated to the last Supreme Court term finds its way to print. Ditto for the equally acclaimed Supreme Court Review. How times have changed. The days of waiting are over; we live in a wired era. That’s the good news. The bad news, of course, is: who can possibly begin to read all of this?

That said, and for better or worse, below is a list of books (e-books and print ones) and articles and essays (in online companions and print journals) that either discuss McCutcheon in full or in part (e.g. Zephyr Teachout’s book) or issues very much related to the decision (e.g, Robert Post’s book). All were published after the decision came down on April 2, 2014. Browse them and see how many catch your eye.

5 Books

36 Scholarly Articles or Blog Posts  Read More

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FAN 36.3 (First Amendment News) A street named Carlin

Cardinal Carlin

Cardinal Carlin

UPDATED

Tomorrow New York City will rename a street to honor the late George Carlin, the famed comedian and inspiration for FCC v. Pacifica (1978), the infamous First Amendment case sustaining a broadcast ban on “7 dirty words.”

Although “George Carlin Way” will begin at Amsterdam and West 121st Street, because of construction the ceremony tomorrow will be one block away at Morningside Drive and West 121st Street.

 → This from Howard Wasserman: “The named block is actually not the block on which Carlin grew up, because the church there (where Carlin went to school) objected; the compromise was to move it across to Amsterdam Avenue.” [Source: go here]

  The dedication ceremony will begin at 1:00 PM.

Current line-up of speakers

The following speakers have yet to confirm:

220px-Seven_Dirty_Words_WBAIEvening Event

Tomorrow night at 7:30 PM, at Carolines on Broadway, there will be a very special night of laughter to pay tribute to the dean of counterculture comedians and to celebrate his newly minted status as a man of the streets. (I will be in NYC and plan to be at Carolines.)

Colin Quinn will host, with performances by Ted Alexandro, Kevin Bartini, Eddie Brill, Jim Norton, and special surprise guests.

For details, go here.

→ Hat tip to Josh Wheeler 

For a memorable passage from Justice William Brennan:

I find the Court’s misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent.

→ Related News Item: November 4, 2014 marks the 50th anniversary of Lenny Bruce’s New York obscenity conviction, for which he was posthumously pardoned on December 23, 2003.

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FAN 36.2 (First Amendment News) Corn-Revere on the FCC & Redskins Controversy

Robert Corn-Revere

Robert Corn-Revere

In case you missed it, yesterday Robert Corn-Revere had an op-ed in the Wall Street Journal. The piece was titled, “Free-Speech Foes Call an Audible — Bringing the FCC into the ‘Redskins’ debate is an invitation for First Amendment mischief.”

Here is the petition to the Federal Communications Commission, the one that gave rise to the FCC controversy.

 Here is how Mr. Corn-Revere began his WSJ op-ed:

“However you may feel about the name of the National Football League franchise in Washington, D.C., do we really want the Federal Communications Commission to step into the Redskins controversy as the nation’s culture police?”

“That’s what George Washington University law professor John Banzhaf III is seeking by asking the FCC to deny the broadcast license of WWXX, the FM radio station in Washington licensed to team owner Dan Snyder. The petition, filed in September, asks the FCC to yank the broadcast license because the station “deliberately, repeatedly, and unnecessarily broadcasts the word ‘R*dskins’ during most of its broadcast day.”

“That’s right, in lieu of the team name, the petition uses ‘R*dskins.'”

“This is a publicity stunt, not a serious legal argument. It is well beyond the FCC’s statutory or constitutional authority to prohibit speech merely because some find it offensive. But the idea gained some political traction after a Sept. 30 meeting when several FCC commissioners said they would consider the issue. Such consideration should not take long if the FCC is serious about following the law.”

Corn-Revere, former chief counsel to former FCC Chairman James Quello, then proceeded to lay out his case as to why Professor Banzhaf’s petition should be denied. In the process, Corn-Revere drew on FCC precedents and experience with regulations of this general type. In the end, he predicted:

“Without even getting into the frailties of the petition’s legal arguments, it doesn’t take a seer to predict what would happen if the FCC started canceling broadcast licenses because some people in the audience may be offended by something they had heard or seen. It would be a national version of college ‘speech codes,’ which have devolved into an offended-ness sweepstakes.

“There is no doubt about the sincerity of those who object to the name Washington Redskins. But asking the FCC to silence broadcasters who disagree with them is not the solution.”

Note: Professor Banzhaf has accepted my invitation to respond. I will post it as soon as i can. Stay tuned. 

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Formal Bills of Rights vs. Instrumental Ones

Below the fold I will post the Introduction of my revised paper, which I’m tentatively calling “The Bill of Rights Reconsidered.”  (It’s not a great title, but it’s good enough for now.)  As some readers may recall, last year I drafted a paper that focused on how Franklin D. Roosevelt elevated the status of the Bill of Rights in the 1930s.  Once I decided to turn this project into a book, I realized that my draft was inadequate.  It noted that most people did not call the first set of amendments a bill of rights until the 1890s, but did not offer an explanation for that curious fact.  I also did not explain why the terminology starting changing around 1900.  Those were pretty significant holes, but now I think that I have got them covered.

A theme of the paper is that our understanding of a bill of rights moved from a formal definition in the eighteenth and nineteenth centuries to a practical one in the twentieth and twenty-first.  Alexander Hamilton anticipated this change in Federalist #84, which I think has been misread for a long time.  (More on that later this week.)

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