Concurring Opinions

Justice Breyer Robbed at Knifepoint

The story is here.

LTAAA Symposium: Complex Systems and Law

The basic question LTAAA asks—how law should deal with artificially intelligent computer systems (for different values of “intelligent”)—can be understood as an instance of a more general question—how law should deal with complex systems? Software is complex and hard to get right, often behaves in surprising ways, and is frequently valuable because of those surprises. It displays, in other words, emergent complexity. That suggests looking for analogies to other systems that also display emergent complexity, and Chopra and White unpack the parallel to corporate personhood at length.

One reason that this approach is especially fruitful, I think, is that an important first wave of cases about computer software involved their internal use by corporations. So, for example, there’s Pompeii Estates v. [...]

Personhood for Artificial Agents?

I am simply delighted to be taking part in this symposium, and extend a great deal of thanks to Frank Pasquale, the editors at Concurring opinions—and of course, most important, Samir Chopra and Laurence White for writing such an excellent, thought-provoking piece of work. I enjoyed this book immensely and consider it required reading for anyone interested in thinking through how artificial agents can and should be regulated.

While there is much in this book that deserves greater analysis and discussion from the public, I have chosen to focus my thoughts on the last chapter, Personhood for Artificial Agents. This chapter, I think, is rightly described as the “legal culmination” of their analysis of artificial agents, and encapsulates some of the most pressing [...]

Stanford Law Review Online: The Privacy Paradox 2012 Symposium Issue

Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:

Essays

A Reasonableness Approach to Searches After the Jones GPS Tracking Case by Peter Swire (64 Stan. L. Rev. Online 57); Privacy in the Age of Big Data by Omer Tene & Jules Polonetsky (64 Stan. L. Rev. Online 63); Yes We Can (Profile You): A Brief Primer on Campaigns and Political Data by Daniel Kreiss (64 Stan. L. Rev. Online 70); Paving the Regulatory Road to the “Learning Health Care System” by Deven McGraw (64 Stan. L. Rev. Online 75); Famous for Fifteen People: Celebrity, Newsworthiness, and Fraley v. Facebook by Simon J. Frankel, Laura Brookover & Stephen Satterfield (64 Stan. L. Rev. Online 82); and The Right to Be Forgotten by Jeffrey Rosen (64 [...]

What Thinking About Free Speech Architecture Can Do For First Amendment Law

I’m hoping to hear more soon about the discussion at Friday’s First Amendment architecture panel in the Stanford Technology Law Review Symposium. But in the meantime, I’m looking forward to continuing our own discussion of Marvin’s ideas here on Concurring Opinions.

As I wrote in my previous post here, there are already some familiar aspects of First Amendment law — acceptable to “negative liberty” proponents – that protect not just speech itself, but the architecture that makes it possible: They defend our expressive environment against any government censor’s attempts to redesign it in a way that hampers speech. Prevented from jailing a speaker they’d like to silence, officials may not simply find a more indirect method of silencing him – by, for example, forbidding him from [...]

Omelets and Eggs

I have now reached the Thirty-Ninth Congress and Bingham’s drafting of Section One of the Fourteenth Amendment, which means that my blogging will cease for a while. (Besides, I think I annoyed enough people with my posts last week. Next month I look forward to irritating people of a different persuasion when the Supreme Court hears the health care arguments.)

Couple of thoughts about the chapter that I just finished about Bingham’s prosecution of John Wilkes Booth’s co-conspirators (including Mary Surratt). The obvious irony in this case is that the great civil libertarian argued for a military trial and rejected the application of the Bill of Rights to the defendants. Here’s the more subtle point, though. But for the fame that Bingham achieved in this (highly [...]

Physical Punishment and Parental Rights

A recent study published online in the Canadian Medical Association Journal brings up the unresolved debate about parental rights and physical punishment of children. This study lends support to an argument I made some years ago in an article called “Suing for Lost Childhood” about the use of the delayed discovery rule in child sexual abuse cases. In my article, I argued that physical abuse of children and neglect can have impacts on children’s development that are as destructive as sexual abuse, but for a variety of reasons we are as a culture more attuned to issues related to children and sexuality. (I later called the analysis used in that article “narrative genealogy” as it traces the cultural origins and migrations of stories that ultimately had shaping effects on [...]

Super En Banc in the Ninth Circuit

One thought about the future of the panel opinion in Perry (on same-sex marriage) is that the Ninth Circuit can choose to go en banc without a request from the parties. Moreover, the Ninth Circuit has a unique procedure where it can go en banc from the en banc. This “super en banc” involves all of the active judges, whereas the usual one only includes eleven of them. So hold your horses on the prospects for the Supreme Court to hear this anytime soon.

Lifecycles and the Firm

As Joan Hemingway nicely illustrated, firms ought to disclose facts about their managers which are likely to influence stock purchasing decisions, even if those facts are otherwise private and personal. Now, from a different direction, comes further evidence of the point that managers’ self-interested goals can influence their firm’s disposition. In CEO Preferences & Acquisitions, Jenter and Lewellen take a look at the relationship between CEO retirement and “the incidence, the pricing, and the outcomes of takeover bids.”

“Mergers frequently force target CEOs to retire early, and CEOs’ private merger costs are the forgone benefits of staying employed until the planned retirement date. Using retirement age as an instrument for CEOs’ private merger costs, we find strong evidence that target CEO preferences affect merger patterns. [...]

Tempest in Tempe: First Amendment in the Desert

In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):

It was a technical mistake; Change.org was spamming ASU; and ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, [...]

Boston University Law Review, Volume 92: Issue 1 (January 2012)

Boston University Law Review Volume 92 Number 1 – January 2012 CONTENTS ARTICLES

Statistical Knowledge Deconstructed Kenneth W. Simons Page 1

The New Judicial Deference Kim Lane Scheppele Page 89

The Supreme Court and the Regulation of Risk in Criminal Law Enforcement Jonathan Remy Nash Page 171

ESSAY

The Geography of the Death Penalty and Its Ramifications Robert J. Smith Page 227

NOTES

Defining a New Punctilio of an Honor: The Best Interest Standard for Broker-Dealers Nicholas S. Di Lorenzo Page 291

Showing Your School Spirit: Why University Color Schemes and Indicia Do Not Deserve Trademark Protection Stephanie Frank Page 329

Calling the Supreme Court: Prisoners’ Constitutional Right to Telephone Use Peter R. Shults Page 369

Can’t the Supreme Court Just Say No to Cameras?

It’s been widely reported that SB.1945, if passed, would compel the Supreme Court to televise its proceedings. Here’s the relevant bill text:

‘The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.”

Two questions.

(1) This seems badly drafted to me. What does “television coverage” mean for the purposes of this bill? Does it mean that the camera gets to swivel between Justices and the attorney? That it can face the wall? But more interestingly,

(2) What ifthe [...]

What Does Jones Mean for the Exclusionary Rule?

Many thanks to Danielle and the good folks at Co-Op for inviting me back and for again tolerating my slow starts. I am late to the Jones party, but nevertheless cannot pass on the opportunity to say a few things. Foremost, I think I represent the views of criminal procedure professors nationwide when I thank the Court most sincerely for its timing. A couple of terms back the Court issued its opinion in Gant “clarifying” Belton smack in the middle of reading week, which was difficult timing to say the least. More common practice still is the Court’s regular habit of issuing the game-changers in May and June, which requires us to write long mails to students explaining to them how much of what we [...]

Free Speech Architecture – Responses

I am excited about the great points made so far here on Concurring Opinions, and want to again extend my thanks to Danielle and everyone who has participated. I’m speaking on the paper in a few hours, and then plan to engage the points made by Marc, Tim, and Zephyr. I hope we’ll be able to continue these discussions well into future.

(Government) Speech Spaces

In terms of free speech architecture, I think the developing “government speech” principle poses some important questions. Under this principle, some spaces are principally reserved for government speech rather than public discourse. Are government speech spaces exceptions to the doctrine Marvin otherwise views optimistically, a separate aspect of speech architecture, not part of speech architecture at all, or simply products of a flawed doctrine or principle?

I recognize that at this point the governmental speech architecture is not very well-developed. But its foundation is coming into clearer focus. In some spaces, including the workplace and a small public park in Pleasant Grove City, Utah, the Supreme Court has exempted certain government decisions from free speech scrutiny on the ground that the spaces do not function as forums for public speech, but rather as government speech spaces. As I have argued elsewhere, at least on a conceptual level the Pleasant Grove decision comes [...]

On the Servicing Settlement

Today, Jon Walker tweeted that “No one man has done more to protect the power of the financial elites than President Obama.” Is that a fair assessment? Here are some views expressed on the mortgage settlement today:

Adam Levitin, The Servicing Settlement: Banks 1, Public 0:

[The settlement] cover[s] robosigning and overbilling in foreclosures. Given the relatively narrow scope of this settlement, it’s not surprising that the dollars involved are quite small compared to the overall harms created by the housing bubble and aftermath.

The formal price tag for the settlement is $25 billion, although it is projected to accomplish up to $40 billion in relief. Only $5 billion of that is hard cash contributed by the banks. Let me repeat that. [...]

Did Rahm Learn Anything From Cass?

This week Governor Pat Quinn of Illinois signed legislation that will allow the City of Chicago to put speed cameras in the one-eighth mile buffer zones around schools and parks. As the Chicago Tribune has reported, the City has more than 600 public schools and only slightly fewer parks, so this legislation gives Chicago the authority to cover roughly half of its territory with speed cameras. The City says it will concentrate on the approximately 80 areas where the need for speed enforcement is particularly acute.

Although Quinn signed the legislation, the cameras are the handiwork of Mayor Rahm Emanuel. The Mayor says he developed the plan after school officials and the police expressed concerns about public safety. Emanuel’s critics—and he has a lot of them—paint [...]

Preserving Free Speech Architectures — vs. Designing New Ones

Thanks to Marvin for giving us such a fascinating and well-done article to debate here – and to Danielle and Concurring Opinions for giving us a virtual space for that debate can happen. I’m grateful for the invitation to join in.

Marvin’s major target throughout his article is the “negative liberty” view of free speech. The First Amendment, he argues, is not only a barrier against official abuse. It is also a constitutional power source that provides a basis for a legislature to do things it otherwise couldn’t do, especially when it comes to safeguarding – or, if necessary, modifying – the “architecture” of spaces essential for communication.

I couldn’t agree more with the article’s claim that the First Amendment law needs to take stock of architecture [...]

Free Speech and Foot Traffic

I will be brief for now, though I have much to say about Marvin Ammori’s wonderful article and discussion. Thank you for inviting me to join.

Two quick thoughts for today:

First, the more I embed myself in public forum doctrine (a dangerous side effect of involvement with Occupy Wall Street), the more Dr. Seuss-like it starts to seem, the rhyme in my head being: “walking means talking and free speech is on beeches.” The short of it being that the likelihood of a court finding a public forum seems highly correlated with whether or not it is (a) a beach or (b) a public thoroughfare with foot traffic. In other words, there is a high likelihood that it is a place that few people want [...]

How and why to boycott Apple

In the wake of two Times articles and an episode of This American Life exposing working conditions among Apple’s suppliers, various bloggers and commentators have called for a consumer boycott. One respected tech blogger even called the conditions “barbaric,” arguing that “the blame lies not with Apple and other electronics companies—but with us, the consumers.”

I find the argument that Western consumers owe a moral duty to overseas workers quite compelling, particularly with regard to luxury goods such as Apple’s. See Iris Marion Young on that point. Yet I don’t think a traditional boycott is a good idea, for two basic reasons. First, it is self-defeating. Putting aside the irony that such a boycott cannot be organized without using Apple products, the collective action problem is [...]