But what then?  Or, as the late, great, Larry Ribstein wrote, what happens “after the fall of regulation.” There are four (well-known) secular trends to consider:

Another troubling finding was that almost half of the victims — 7.8 million — were notified that their personally identifiable information (PII) was hacked or lost by a public or private organization.  It’s long been explained that the biggest risk for identity theft [...]]]> The crime of identity theft is on the rise, in a big way.  A recently released Javelin report found that identity theft rose 13% from 2010 to 2011 with approximately 11.6 million victims of identity theft in the U.S.  This month’s Consumer Reports paints an even more troubling picture. In a national survey of 2,002 households, the Consumer Reports National Resource Center projected that approximately 15.9 million households experienced identity theft in the past 12 months, up almost 50% from the previous year’s study.

Another troubling finding was that almost half of the victims — 7.8 million — were notified that their personally identifiable information (PII) was hacked or lost by a public or private organization.  It’s long been explained that the biggest risk for identity theft stemmed from people who know us or who have access to our wallets or trash.  This allowed consumers to ignore reports of data breaches and hacks.  That databases of our PII were prone to leaking met with a big so what?  So what if Zappos got hacked, exposing over 24 million users’ credit card and other personal information?

Now, it is increasingly clear that insecure databases of our personal information pose serious risks of identity theft to consumers.  What is in store for identity theft victims?  Victims spend considerable time and money to restore their credit histories.  The stain of a thief’s reckless spending can make their way into data brokers’ files, with recurring impact on the ability to get hired, rent apartments, and the like.  The FTC’s recent privacy report gives some hope that we may in the future have more transparency and corrective measures with regard to data brokers.  But we are not there yet, and that’s a big problem for identity theft victims.

Proposed Article 17 provides:

[T]he data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or [...]]]> By now, you’ve likely heard about the the proposed EU regulation concerning the right to be forgotten.  The drafters of the proposal expressed concern for  social media users who have posted comments or photographs that they later regretted. Commissioner Reding explained: “If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system.”

Proposed Article 17 provides:

[T]he data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child, where one of the following grounds applies . . . .

Where the controller referred to in paragraph 1 has made the personal data public, it shall take all reasonable steps, including technical measures, in relation to data for the publication of which the controller is responsible, to inform third parties which are processing such data, that a data subject requests them to erase any links to, or copy or replication of that personal data. Where the controller has authorised a third party publication of personal data, the controller shall be considered responsible for that publication.

The controller shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary: (a) for exercising the right of freedom of expression in accordance with Article 80; (b) for reasons of public interest in the area of public health in accordance with Article 81; (c) for historical, statistical and scientific research purposes in accordance with Article 83; (d) for compliance with a legal obligation to retain the personal data by Union or Member State law to which the controller is subject . . . .

The right is explained in paragraphs 53 and 54 of the preamble in the Regulation:

Any person should have the right to have personal data concerning them rectified and a ‘right to be forgotten’ where the retention of such data is not in compliance with this Regulation. In particular, data subjects should have the right that their personal data are erased and no longer processed, where the data are no longer necessary in relation to the purposes for which the data are collected or otherwise processed, where data subjects have withdrawn their consent for processing or where they object to the processing of personal data concerning them or where the processing of their personal data otherwise does not comply with this Regulation. This right is particularly relevant, when the data subject has given their consent as a child, when not being fully aware of the risks involved by the processing, and later wants to remove such personal data especially on the Internet. . . . To strengthen the ‘right to be forgotten’ in the online environment, the right to erasure should also be extended in such a way that a controller who has made the personal data public should be obliged to inform third parties which are processing such data that a data subject requests them to erase any links to, or copies or replications of that personal data. To ensure this information, the controller should take all reasonable steps, including technical measures, in relation to data for the publication of which the controller is responsible. In relation to a third party publication of personal data, the controller should be considered responsible for the publication, where the controller has authorised the publication by the third party.

There’s much to criticize here, from free speech concerns (as Professor and TNR journalist Jeffrey Rosen has argued that the right to be forgotten is pretty much the free speech problem of our time) to more prosaic practical ones of operationalizing this.  For instance, what happens when someone requests deletion of an item that has been shared with a third party for advertising purposes?   Does this require something like a clawback of data shared with third parties?  All data controllers face penalties of up to 2 percent of their global income if they fail to remove photographs and other content that people have posted and then regretted.  Criticizing the proposal, Google’s privacy chief pointed out that any material published online could be copied and re-published anywhere, so it is unreasonable of EU regulators to expect providers such as Facebook to keep control over those republished versions.

It is also worth considering its impact on law breakers.  Might a cyber stalker who tormented someone with YouTube videos (let’s say the person threatened to kill the victim) be able to request the deletion of those videos just in time to ensure that they can’t be successfully prosecuted but after they’ve traumatized the victim?  Might someone put up a Craigslist advertisement impersonating someone and suggesting their interest in rape, see this Wyoming case that led to the rape of a woman, and then request to delete it in time to escape responsibility and ensure the woman’s rape? The “right to be forgotten” seems like an extreme response to concerns about users putting up embarrassing pictures and comments. Not surprisingly perhaps, it does nothing for the person whose online reputations have been trashed and who face threats from anonymous posters and everything to protect the perpetrators who want to escape responsibility for the damage they cause.

One issue in the case is “What did the NFL know and when did they know it?”  If this is like the tobacco litigation and NFL officials knew, say, 20 years ago, that there was a problem and did nothing, then liability is all-but-certain.  It [...]]]> About a year-and-a-half ago, I wrote a post about how assumption-of-risk principles might apply to the claim that ex-NFL players were suffering from dementia and other chronic brain problems due to repeated blows to the head.  I didn’t realize at the time that we would see a lawsuit against the league along these lines so soon.  While extensive discovery is still ahead, there is a decent chance that the NFL will be found liable for not doing more to protect players.

One issue in the case is “What did the NFL know and when did they know it?”  If this is like the tobacco litigation and NFL officials knew, say, 20 years ago, that there was a problem and did nothing, then liability is all-but-certain.  It is more likely, though, that this is not true.  What then?  Product liability suits with a long latency period (the time between exposure and symptoms) pose very tricky problems.  One way of viewing the issue is that it is unfair to hold a firm liable when the consensus was that the product was safe–how were they supposed to know better?  Another thought is that a firm that puts a product into the stream of commerce and injures people should always pay because they profited and to do otherwise would force an innocent victim to bear the loss. Complicating that is the extent to which the consumer is aware of a risk, though not THE risk, of the product.  Obviously football players knew that they could get seriously hurt.  But does it matter that they did not know that they could get hurt in the way that, say, Dave Duerson was?

This is actually not a bad topic for a symposium, but in the meantime what do you think?  (The prospective question of how you can make football safer is a separate issue.)

Liars and Outliers is a fantastic book, and a very ambitious one — an attempt to conceptualize trust and security.  The book is filled with great insights, and is a true achievement. And it’s a fun read too.  I recently conducted a brief interview with Bruce about the book:

Q (Solove): What is the key idea of your book?

A (Schneier): Liars and Outliers is about trust in society, and how we induce it. Society requires trust to function; without it, society collapses. In order for people [...]]]> Bruce Schneier has recently published a new book, Liars and Outliers: Enabling the Trust that Society Needs to Thrive (Wiley 2012).  Bruce is a renowned security expert, having written several great and influential books including Secrets and Lies and Beyond Fear.

Liars and Outliers is a fantastic book, and a very ambitious one — an attempt to conceptualize trust and security.  The book is filled with great insights, and is a true achievement. And it’s a fun read too.  I recently conducted a brief interview with Bruce about the book:

Q (Solove): What is the key idea of your book?

A (Schneier): Liars and Outliers is about trust in society, and how we induce it. Society requires trust to function; without it, society collapses. In order for people to have that trust, other people must be trustworthy. Basically, they have to conform to the social norms; they have to cooperate. However, within any cooperative system there is an alternative defection strategy, called defection: to be a parasite and take advantage of others’ cooperation.

Too many parasites can kill the cooperative system, so it is vital for society to keep defectors down to a minimum. Society has a variety of mechanisms to do this. It all sounds theoretical, but this model applies to terrorism, the financial crisis of 2008, Internet crime, the Mafia code of silence, market regulation…everything involving people, really.

Understanding the processes by which society induces trust, and how those processes fail, is essential to solving the major social and political problems of today. And that’s what the book is about. If I could tie policymakers to a chair and make them read my book, I would.

Okay, maybe I wouldn’t.

Q: What are a few of the conclusions from Liars and Outliers that you believe are the most important and/or provocative?

A: That 100% cooperation in society is impossible; there will always be defectors. Moreover, that more security isn’t always worth it. There are diminishing returns — spending twice as much on security doesn’t halve the risk — and the more security you have, the more innocents it accidentally ensnares. Also, society needs to trust those we entrust with enforcing trust; and the more power they have, the more easily they can abuse it. No one wants to live in a totalitarian society, even if it means there is no street crime.

More importantly, defectors — those who break social norms — are not always in the wrong. Sometimes they’re morally right, only it takes a generation before people realize it. Defectors are the vanguards of social change, and a society with too much security and too much cooperation is a stagnant one.

Q: What’s wrong generally with current governmental approaches toward national security?

A: In general, democratic countries are pretty good. You can argue that the U.S. spends too much money on the military, that the U.K. relies too heavily on cameras, and that many countries are overreacting to the terrorist threat and generally engaging in too much worst-case thinking — but those are really in the margins. Society has a pretty good risk thermostat, and people naturally set that thermostat to the level they find most comfortable.

Where we systemically get risk wrong is in response to changing technology. Technology is an outside force that changes risk levels. Firearms makes robbery more deadly; the Internet makes banking fraud easier. On the other side, fingerprint and DNA technology make crimes easier to solve, and magnetometers make it harder to sneak firearms on airplanes. Social networking sites make some sorts of fraud easier, and make undercover police work harder.

What this all means is that the risks we’ve so carefully regulated get out of whack, and we have to adjust our security. We tend to be both slow and bad at it. We’re bad at it because we don’t have the data. We don’t really know how good airport security has been at deterring terrorism, and we don’t know how much a zero-tolerance drug policy has affected street crime. And we’re slow because society moves slower than the bad guys. We saw that in Internet crime. As soon as banking and commerce moved to the Internet, there emerged a new breed of Internet criminal that was agile and tech savvy. Meanwhile, the police, who were basically trained in the Agatha Christie model of police work, took seven or so years to adapt.

Getting security right in a world of rapid technological change, and a world of rapid social change due to that technological change, requires an adaptability that we’re not good at.

Q: Privacy and trust are often understood as in conflict with each other. According to some people, privacy impedes society’s ability to find out and prevent troublesome behavior, making it harder to trust people because less is known about them. Is it possible to have a lot of privacy and a lot of trust in society? How so?

A: Of course it is, and we all know how — even if we don’t think about it. When we walk into a bank and deposit our money, we trust that bank, even though we don’t need to know any of the bank employees. When we use an ATM — I used one in Bangkok just last week — we don’t even trust the bank; we trust the international funds transfer system, even though we don’t understand it. When we walk through town, we trust that we won’t be attacked; when we lock our doors, we trust that we won’t be robbed. In all of these cases, our trust has nothing to do with privacy. In some cases, we’re trusting a corporation instead of a person; in others, we’re trusting a socio-technical system. We trust the social and legal systems that regulate people’s behaviors, and we trust technical security measures that have nothing at all to do with privacy.

Privacy is an important social value, and one worth preserving for its own sake. While personal reputation, which requires a certain lack of privacy, is one way society prevents bad behavior — and throughout the history of our species, it has been a very important way– it’s not the only way. In Liars and Outliers, I describe morals, reputation, institutions, and security technologies as the four types of societal pressure. Many ways to facilitate trust have nothing to do with privacy: anti-counterfeiting technologies in currency, guards around military bases, metal detectors at airports, feelings of guilt from bad behavior, and so on.

Q: What is the most important thing about security that policymakers should understand?

A: That our feelings about security are different from the reality of how secure we are — and that fear gets in the way of rational decision making. I want governments to rise above fear and fear mongering, and implement policies that reflect actual risks of actual threats.

I’m not holding my breath.

Over the past few weeks, I read Robert Caro’s brilliant (and massive) four volumes on Lyndon Johnson. The fourth one, which covers 1958-1964, came out two weeks ago.  I did this for a few reasons.  First, I thought that this would help me as I revise the Bingham book. Working for three years a biography feels like a massive project to me, but consider that Caro has spent more than thirty-five years on LBJ!  Second, the portion on LBJ’s Senate career contains powerful insights on how Congress works. I’ve written about the Senate filibuster before, and now I’m thinking of moving to the committee structure and rules that relate to party [...]]]> My blogging break is done.  Good thing nothing happened while I was away. (Just kidding.)

Over the past few weeks, I read Robert Caro’s brilliant (and massive) four volumes on Lyndon Johnson. The fourth one, which covers 1958-1964, came out two weeks ago.  I did this for a few reasons.  First, I thought that this would help me as I revise the Bingham book. Working for three years a biography feels like a massive project to me, but consider that Caro has spent more than thirty-five years on LBJ!  Second, the portion on LBJ’s Senate career contains powerful insights on how Congress works. I’ve written about the Senate filibuster before, and now I’m thinking of moving to the committee structure and rules that relate to party discipline in both Houses.  More on that later this week.

Here’s a small point that I found interesting from a constitutional perspective. After Pearl Harbor, about eight members of Congress (including LBJ) enlisted in the Armed Forces without resigning their seats. In 1942, FDR ordered those members to return to politics, on the ground that their service there was more valuable.  Some complied, and others quit the House so that they could serve in battle.

My question is why does the President have the authority to tell members of Congress that they cannot serve in the active military?  Sure, he’s the Commander-in-Chief, but such an order would seem to intrude unduly on the prerogatives of members of another branch and of the voters who choose them.  It’s not a problem that’s likely to recur, but it’s puzzling.

Facebook is top dog in social; Google in search. The thing they both (with MS lurking in the wings to make a big comeback (an odd thing given how [...]]]> Hey! Bing is innovating! It has added social to search based on its relationship with Facebook. Oh wait, Google did that with Google+. So is this innovation or keeping up with the Joneses, err Pages and Brins? I thought this move by MS would happen faster given that FB and MS have been in bed together for some time. So did Google innovate while Microsoft and Facebook imitated? Maybe. Google certainly plays catch-up too. The real questions may turn on who executes and/or can execute better. That seems to be part of the innovation game too.

Facebook is top dog in social; Google in search. The thing they both (with MS lurking in the wings to make a big comeback (an odd thing given how well MS does as it is)) are doing is to take recommendations to a new level (with ads thrown in of course). I have tried logged in search. I must say I was surprised. To be clear, I find there is mainly rot in social network data just as there is in search. Whether I would have used Google+ had I not been at Google is unclear. Probably not. But I did. Then I searched for some law review articles and some basic technology information. WOW. The personal results at the top had links to blog posts by people whom I followed on Google + AND THEY WERE…RELEVANT. Blew my mind. My search time went down and I found credible sources faster. Will that last? Who knows? Someone may find ways to game the system, but the small experiences make me hopeful. Now to Facebook and Bing.

If Google can do well with a much smaller set of users for Google +, Facebook and Bing might do really well. After all, Facebook has the social piece and MS has some search computer science types. Whoever wins here may offer the next thing in search. I like conducting logged out searches and logged in. When logged in, I like the potential for seeing things from friends and people I trust. For example, if I start to be interested in cameras and search gives me posts by friends I’d ask anyway, that is a pretty cool result. I can read the post and call the friend for deeper advice or just use what they posted.

All in this space will, of course, cope with privacy concerns etc. But I think that this new level of relevance has the chance to co-exist with those concerns and users may flock to one of these services to have results well-beyond the current ones in search without social. In other words, let the games continue.

Under a practice known as “the Program,” guards were deputizing inmates, often in the teen jail, and pitting them against one another in fights as [...]]]> Christopher Glazek’s article “Raise the Crime Rate” challenges recent estimates of crime levels in the US. According to Glazek, crime “has not fallen in the United States;” rather, “it’s been shifted. . . .away from urban centers” and into “a proliferating web of hyperhells.” If you think that last, Dantean flourish is overstated, I highly recommend two recent articles on prisons. The Southern Poverty Law Center has observed the “unbelievable brutality unleashed on kids in for-profit prisons.” Many public facilities are also failing. Graham Rayman reports on institutionalized violence on Rikers Island in New York:

Under a practice known as “the Program,” guards were deputizing inmates, often in the teen jail, and pitting them against one another in fights as a way to keep order and extort them for phone, food, and television privileges.

These revelations are among many that vindicate Mike Konczal’s important essay “Against Law, For Order.” Konczal argues that the latter half of the “law and order” slogan has proven far more important in recent decades than the former:

“Law and order” isn’t just the rallying cry of Southern traditionalists[;] it also forms a core of the neoconservative governance project. Take the influential 1982 Atlantic Monthly essay “Broken Windows” by the neoconservative thinker James Q. Wilson. . . . For Wilson, society took a wrong turn when it viewed the ideal role of policing as detectives solving a crime or a system following clear rules agreed on in advance. The real purpose of the policeman was to preserve order, pushing the limits of his or her authority in an improvisational, eternal combat against an almost self-conscious disorder. . . . The concept of the night watchman is re-purposed: instead of the quiet, passive night watchman looking over the rules of property and law, the government is active, participating, constantly at war with disorder, pushing the laws against its constraints to save the system.

Of course, the ultimate victory in such an ideological struggle is to get rid of nearly all legal constraints on the watchman, as the Supreme Court recently did in a range of situations relating to strip searches after an arrest. As Bernard Harcourt has observed, the Court’s concerns with liberty and due process are minimal in that context:

[The Court] allow[s] federal, state, and local law enforcement officers to force anyone arrested for even the most minor traffic violation to be stripped naked, forced into a delousing chamber, compelled to squat, cough, and lift their genitals under the peering supervision of a jailor. The fundamental values of a liberal democracy, on Justice Kennedy’s view, do not require even one iota of reasonable suspicion, before the state can strip its citizens of all dignity, bodily integrity, and personal autonomy.

As Aaron Bady observes, “the decision accepts the proposition that the rights you have — that the state must obey — don’t need to wait for some juridical process to determine that you’ve forfeited them, that your actions or your situation require a suspension of your default status as rights-bearing citizen.” The ultimate rationale for that position is in turn economic, Bady argues: when the Court calls alternatives unworkable, it essentially laments that protecting liberty is too expensive. It also expresses its profound lack of interest in developing a jurisprudence that might carve out certain basic safeguards for the arrested—a view shared by President Obama’s DOJ.

When administrative discretion trumps legal regularity, the usual rationale is either scientific or political. Only the latter appears relevant here; the triumphs of order over law proceed apace with scant empirical backing. As Glenn Loury has said of Wilson’s approach, “there is little evidence beyond the anecdotal to show that such ‘quality of life’ policing actually leads to lower crime,” however reliably it reinforces “racial stigmata associated with the institutions of confinement, surveillance, and patrol.” Justice Breyer’s dissent in the strip search case offers a litany of studies with a simple message: basing strip searches on “individualized reasonable suspicion” would do virtually nothing to undermine the penological and public safety goals that are the ostensible basis of the blanket discretion endorsed by the majority.

Without scientific basis, it is pure political power that explains the repeated triumphs of order over law. The closest most of us will come to arbitrary police authority is the TSA—an agency whose wide discretion appears to be strongly supported by the majority of Americans who don’t fly much. Until a majority of Americans is directly affected by imprisonment or strip searches, I expect few of the problems mentioned above to abate, or even to be addressed.

(Update: The Inquirer’s brief obituary is here, though obviously there is much more that could and will be said.)

The Stanford Law Review Online has just published an Essay by Jane Yakowitz Bambauer entitled How the War on Drugs Distorts Privacy Law. Professor Yakowitz analyzes the opportunity the Supreme Court has to rewrite certain privacy standards in Florida v. Jardines:

The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection [...]]]>

The Stanford Law Review Online has just published an Essay by Jane Yakowitz Bambauer entitled How the War on Drugs Distorts Privacy Law. Professor Yakowitz analyzes the opportunity the Supreme Court has to rewrite certain privacy standards in Florida v. Jardines:

The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye.

Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. This precedent has shielded dog sniffs from constitutional scrutiny by finding that sniffs of luggage and a car, respectively, did not constitute searches. Their logic is straightforward: since a sniff “discloses only the presence or absence of narcotics, a contraband item,” a search incident to a dog’s alert cannot offend reasonable expectations of privacy. Of course, the logical flaw is equally obvious: police dogs often alert when drugs are not present, resulting in unnecessary suspicionless searches.

She concludes:

Jardines offers the Court an opportunity to carefully assess a mode of policing that subjects all constituents to the burdens of investigation and punishment, not just the “suspicious.” Today, drug-sniffing dogs are unique law enforcement tools that can be used without either individualized suspicion or a “special needs” checkpoint. Given their haphazard deployment and erratic performance, police dogs deserve the skepticism many scholars and courts have expressed. But the wrong reasoning in Jardines could fix indefinitely an assumption that police technologies and civil liberties are always at odds. This would be unfortunate. New technologies have the potential to be what dogs never were—accurate and fair. Explosive detecting systems may eventually meet the standards for this test, and DNA-matching and pattern-based data mining offer more than mere hypothetical promise. Responsible use of these emerging techniques requires more transparency and even application than police departments are accustomed to, but decrease in law enforcement discretion is its own achievement. With luck, the Court will find a search in Jardines while avoiding a rule that reflexively hampers the use of new technologies.

Read the full article, How the War on Drugs Distorts Privacy Law by Jane Yakowitz Bambauer, at the Stanford Law Review Online.

In our data, spectral clustering revealed eight clusters of causes of action.  Each grouping organizes together causes of action that are more likely to be pled together than they are to be pled with others.  (This eight-cluster finding is probably not generalizable to all litigation – the paper goes into some detail about the kinds of cases that we included and excluded from our dataset.)  When you think about it, that there will be some patterns from this kind [...]]]> As I explored in a previous post, some terrific co-authors and I have written a paper which taxonomizes federal complaints- that is, we find patterns in the kinds of causes of action that attorneys plead.  In this post, I’m going to explore those patterns in some more detail.

In our data, spectral clustering revealed eight clusters of causes of action.  Each grouping organizes together causes of action that are more likely to be pled together than they are to be pled with others.  (This eight-cluster finding is probably not generalizable to all litigation – the paper goes into some detail about the kinds of cases that we included and excluded from our dataset.)  When you think about it, that there will be some patterns from this kind of exercise is obvious — there are only a limited number of legally cognizable fact patterns that can cause injury, and attorneys often follow form books/precedent when pleading.  Still, we didn’t know what the patterns would be before completing the analysis.

The Figure below provides the most common two or three causes of action per cluster:

This illustrates how, for example, intellectual property claims (like trademark infringement) often travel together with consumer protection claims; civil rights claims (like 1983 allegations) accompany state law torts; and tort claims often fit with contract and fraud claims. This should be old news to anyone who has ever practiced law.  Moreover, the Figure doesn’t give us a good handle on how alike or unlike each pattern is from another.  Follow me after the jump for the Figure that tries to accomplish just that.

The Figure below results from a force directed graph layout of each case (~2500) in our data.  The case’s color represents the cluster  it is assigned to; the distances between the cases represent how similar (close) or dissimilar (far) they are from one another.

As the Figure illustrates, there is significant overlap between clusters 3 (civil rights/constitutional), 7 (tort/contract/fraud), and 8 (contract/equity), which you can readily observe from the huge colorful blot the middle of the figure. The remaining clusters are spread further from each other. Indeed, the cluster which is least like the others is one in which federal securities law claims dominate (cluster 6 – the black stars) and which the resulting combination of legal theories is very unlike all others in the data. From this, we can conclude that federal securities law cases have less in common – legally – than do cases based in ordinary commercial torts and contract claims. They rest on a set of facts and doctrine that is consequently more remote.

What does this mean?  I’ll leave for another post the practical implications of this kind of clustering work, though the advantages in precision over NOS codes should be obvious.  Here, I’d just say that thinking about complaints as defining and advancing clusters of causes of action made me actually reconsider what public adjudication processes were actually doing. I used to think that litigation was performing a winnowing function on plaintiffs, with “more important” cases, or those where the truth was murkier, reaching the dead klieg-lights of trial.  But now, my frame is that of litigation as a tournament – not for plaintiffs, but for causes of action.  Each case begins with a cloud of possible legal theories competing for attorney and judicial attention.  Some survive (by chance or by law or by facts) later into cases, and they turn up in judicial opinions, which are then read, acontextually, by students, who in turn believe that there is such a thing as a “contract” case, or a “torts” case.  But at least as an original matter, there was no such thing.  Why do some causes of action survive longer than others?  What does pleading practice tell us about attorney strategy and competence?  Read (on) and find out.

First, I don’t think clients were ever consciously “paying for new associate training.” What may have [...]]]> One of the commenters on my opening salvo on legal education raises a point I thought might come up – essentially the much ballyhooed assertion that clients are no longer willing to pay for the training of young associates. The implication being that because clients are less willing to pay for hours billed by ignorant or inefficient legal rookies then law schools must necessarily adjust curricula to provide training no longer available through law firms. Although I’m in favor of doing more to prepare practice-ready graduates, I’m not at all sure the “clients won’t pay for training” story really flies as a rationale for doing it.

First, I don’t think clients were ever consciously “paying for new associate training.” What may have been true is that, in flusher times, big firm clients more readily accepted the overstaffing of cases and the sometimes comically high hourly rates big firms billed for the low-value-added time of young associates. The result was that big firm clients “paid for” associate training in the sense that the associates were learning on the job and their firms were able to earn big profits from their time while they did so. Now, it appears that big firm clients are more sensitive to overstaffing and are unwilling to pay high hourly rates for inefficient or low-value-added associate labor. The result cannot be that big firms aren’t training their new associates. That would be suicidal. The associates have to be trained or they will be unable to produce the high-quality work for which clients ARE willing to pay and on which the firm’s reputation and long-term survival depends. Rather, to the extent a client rebellion against expensive associate billing is underway, the real effect will be to reduce the number of associates hired because they are no longer automatic profit centers. Which is pretty consistent with what we see in the marketplace.

Now, reduced big firm associate hiring is bad for our graduates because there are fewer job opportunities and bad for law schools in the sense that, as the market for lawyers shrinks, so too does the market for law training. BUT it is not at all clear that this market perturbation can be remedied, or even much affected, by alterations in law school curriculum. We can and should make our graduates more practice-ready, but no conceivable modification of law school curriculum would provide the highly specialized subject matter and skills training necessary to transform a Big Law rookie into a midlevel associate worth her $400/hour. That sort of refined training will always be performed on the job. The very best law schools can do would be to provide a better foundation that might speed the developmental process by 6 mos or a year.

Second, most of the talk about changed client willingness to “pay for” associate training is Big Law talk. In the less rarified regions where most students from non-top-20 law schools find jobs, clients have never been willing to “pay for” young lawyer training in any sense. So firms bill young associate time at low rates or bill for fewer hours than the new lawyers spend in order to avoid alienating clients. Nonetheless, such employers – like those in Big Law – know that they have to train their new lawyers if they are to become assets. And they do – some better than others – as an investment in future improved productivity and economic return. I don’t think there is anything new about this. The change, if any, in current circumstances is the overall decline in legal business with a concomitant lower demand for investment in new associates to grow practices.

Still, law schools may be able to help our students and their prospective employers (large and small) by shortening the interval during which they are unproductive assets of the firm. More practice-ready graduates can develop faster into lawyers worth their hourly rates. This in turn shortens the payout period on a firm’s investment in a new associate and raises its rate of return. All of which should, in theory,increase lawyer hiring (or at least give a competitive advantage to graduates of schools who produce practice-ready diplomates).

Does this make sense?

Volume 96, Issue 3 (February 2012):

Articles

Jeremy N. Sheff, Veblen Brands, 96 Minn. L. Rev. 769 (2012)

Talia Fisher, Conviction Without Conviction, 96 Minn. L. Rev. 833 (2012)

Jason Marisam, The Interagency Marketplace, 96 Minn. L. Rev. 886 (2012)

Samuel R. Wiseman, Waiving Innocence, 96 Minn. L. Rev. 952 (2012)

Afra Afsharipour, A Shareholders’ Put Option: Counteracting the Acquirer Overpayment Problem, 96 Minn. L. Rev. 1018 (2012)

Notes

Adam J. Hoskins, Armchair Jury Consultants: The Legal Implications and Benefits of Online Research of Prospective Jurors in the Facebook Era, 96 Minn. L. Rev. 1100 (2012)

Brian Jacobson, Making Pesticides Public: A Disclosure-Based Approach to Regulating Pesticide Use, 96 Minn. L. Rev. 1123 (2012)

Kevin Lampone, Class Certification as a Prerequisite for CAFA Jurisdiction, 96 Minn. L. Rev. 1151 (2012)

Last Saturday, Khalid Sheikh Mohammed (“KSM”), the self-proclaimed mastermind of the September 11 attacks, and four others were scheduled to be arraigned before a military commission in Guantanamo Bay, Cuba. Things didn’t go exactly as the government had planned.  Instead of pleading, the defendants resisted.  KSM and the rest of the defendants refused to answer the judge’s questions. One defendant started praying, and another defendant shouted that he was concerned for his own and the other defendants’ safety.  The behavior turned the arraignment – usually a fairly brief proceeding – into a disorderly 13-hour hearing.

These are obviously unusual defendants. They claim to [...]]]> Jenny Carroll is a former public defender and Prettyman Fellow. She currently teaches criminal procedure, criminal law and evidence at Seton Hall Law School.

Last Saturday, Khalid Sheikh Mohammed (“KSM”), the self-proclaimed mastermind of the September 11 attacks, and four others were scheduled to be arraigned before a military commission in Guantanamo Bay, Cuba. Things didn’t go exactly as the government had planned.  Instead of pleading, the defendants resisted.  KSM and the rest of the defendants refused to answer the judge’s questions. One defendant started praying, and another defendant shouted that he was concerned for his own and the other defendants’ safety.  The behavior turned the arraignment – usually a fairly brief proceeding – into a disorderly 13-hour hearing.

These are obviously unusual defendants. They claim to have planned a devastating act of terrorism that forever changed our nation’s sense of security and itself.  They have been held by their self-proclaimed enemy for nearly ten years awaiting trial.  During that time, evidence against them was acquired through mechanisms reminiscent of the Spanish Inquisition — according the military’s own records, KSM was water boarded a total of 183 times in a single month.  When their day in court finally arrived, the venue was not the federal court in New York, the most logical jurisdiction and the one Attorney General Eric Holder would have preferred, but a military commission.  And while these commissions may have improved markedly since their inception in the Bush Administration, they remain shrouded in mystery with uncertain procedural or Constitutional protections.

Although these are unusual defendants in an unusual case, their strategy of resistance is not entirely new.  The strategy declines to recognize the authority of the court and calls into question the legitimacy of the very system that claims the power to adjudicate.  A long line of political dissidents and activists have sought to transform their criminal trials into a commentary on the system itself.  In my forthcoming article, The Resistance Defense, I examine the implications of this defense.  As I suggest there, the defense of resistance highlights two compelling but under-explored components of criminal law.  First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value.  The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome.  If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow.  Second, these procedural rights have a substantive component.  They help to define notions of guilt and appropriate punishment.  If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself.

In the context of these cases, the resistance defense raises larger questions:  What do we really have to lose by trying this case, or any of the military commission cases, in the federal court system that we trust every day with our most difficult cases and complex constitutional issues?  Why couldn’t New York, the city that no matter what seems to endure and constantly rise ever higher, not handle the trial of the men accused of killing so many of its citizens?   I, like everyone else, have heard the warnings of the high costs of security and risk of reprisals.  But in allowing these trials to remain in these military commissions so besieged on all sides by questions of their legitimacy and sufficiency, have we lost something is more difficult to quantify but is infinitely more valuable?  Have we struck a blow against ourselves as frightening as those imagined by KSM or anyone else who would plot against us?  Have we abandoned the procedure and Constitution that we claimed to defend because we were more afraid of the men who would challenge it?  In some cruel twist, have we forgotten the very freedom we claimed we were defending?

Now compare