Announcing the We Robot 2015 Call for Papers

CommonsRobotHere is the We Robot call for papers, via Ryan Calo:

We Robot invites submissions for the fourth annual robotics law and policy conference—We Robot 2015—to be held in Seattle, Washington on April 10-11, 2015 at the University of Washington School of Law. We Robot has been hosted twice at the University of Miami School of Law and once at Stanford Law School. The conference web site is at http://werobot2015.org.

We Robot 2015 seeks contributions by academics, practitioners, and others in the form of scholarly papers or demonstrations of technology or other projects. We Robot fosters conversations between the people designing, building, and deploying robots, and the people who design or influence the legal and social structures in which robots will operate. We particularly encourage contributions resulting from interdisciplinary collaborations, such as those between legal, ethical, or policy scholars and roboticists.

This conference will build on existing scholarship that explores how the increasing sophistication and autonomous decision-making capabilities of robots and their widespread deployment everywhere from the home, to hospitals, to public spaces, to the battlefield disrupts existing legal regimes or requires rethinking of various policy issues. We are particularly interested this year in “solutions,” i.e., projects with a normative or practical thesis aimed at helping to resolve issues around contemporary and anticipated robotic applications.
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California’s College Rape Rule is Probably a Bad Idea (but not for the Reasons the Critics Say)

Jonathan Chait has joined the chorus of critics of the new affirmative consent rule in California for college campuses. Like others, he contends that the new rule effectively criminalizes ordinary sexual activity among college students. For three reasons, I think the claim is not well supported.

First, consent standards probably do not matter. Dan Kahan did the best study on this issue and the results are pretty clear. No matter what you tell people examining a rape case, they end up applying their own notions of consent. To the degree that any instruction of the law matters the effect size is small. I think this finding will hold true in adjudications under the California affirmative consent rule.

Second, stories of the alleged rapist and victim almost never match rendering legal standards as side issues and putting credibility as the central problem of rape cases. There are normally significant discrepancies between the accounts of alleged rapes. For the people willing to intentionally lie (either way), the new rule just indicates the content of their lie must change. For example, instead of saying, “she never objected,” a defendant would say “she said ‘yes.'” Even for those cases where the discrepancies are based upon cognitive biases or other unconscious factors, it is likely, if history is a guide, that the differences will align around the legal rule in place.

Third, the drunken sex cases that the critics are focused on are almost never resolved based upon the consent standard. The cases instead rely on incapacity. Whether a negative or affirmative consent standard applies is simply irrelevant in a case where the victim was too intoxicated to consent. The affirmative consent standard is a red herring in the primary scenario identified for overpunishment on campuses.

Even with all of those reasons to doubt its effectiveness in changing case outcomes, the California rule might simply be innocuous. However, there is a real danger that rule changes like this feed into a very dangerous cultural myth about rape law. Stephen Schulhofer probably said it best in his book Unwanted Sex: “Opponents of rape reform have managed to convince a wide audience that standards of permissible conduct are now dictated by ‘hypersensitive’ young women and by ‘radical’ feminists committed to a highly restrictive, Victorian conception of sexual propriety…. The reality is far different. The claim that legal rules, campus behavior codes, and company policies enshrine radically overprotective, puritanical rules of conduct is a myth.” In roughly half the states in America, having sex with someone who is highly intoxicated, but still conscious, is not rape. Many jurisdictions still apply a resistance or corroboration requirement in charging decisions despite such rules having long since been removed from statutes.  The list of problems with the application of modern rape law is extensive. Unfortunately, the backlash against the California affirmative consent rule has already helped spread the myth of radical change. And because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative. I hope I’m wrong.

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34.4 (First Amendment News) Freedom of Expression Scholars Conference — Call for Papers

abrams-logoThe Abrams Institute for Freedom of Expression and the Information Society Project at Yale Law School invite applications for the third annual Freedom of Expression Scholars Conference.  The conference will be held on May 2-3, 2015, at Yale Law School.

 The conference brings scholars together to discuss their works-in-progress concerning freedom of speech, expression, press, association, petition, assembly, and related issues of knowledge and information policy.  The past two conferences were great successes, with many interesting conversations, dozens of papers presented, and upwards of 50 scholars attending. Diversity of views welcome.

The conference offers participants an opportunity to receive substantive feedback through group discussion. Unlike a traditional conference, authors do not give formal presentations of their work.   Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants.  This format permits substantive and lively discussion of ideas and writings that may be inchoate or not yet fully developed.

Because of the format of the conference, participants will be expected to read and be prepared to discuss at least one paper per session, and to attend the entire conference.  In the past, there have typically been eight sessions, running from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening for those already arrived in New Haven.

 Participation in the conference is by invitation only, but we welcome paper submissions–and applications to participate as a discussant–from a wide range of scholars.  Please feel free to share this call for submissions with any colleagues that may be interested.

Titles and abstracts of papers should be submitted electronically to jonathan.manes@yale.edu no later than February 20, 2015.

→ Those interested in participating as discussants or participants without submitting a paper should also contact jonathan.manes@yale.edu by February 20, 2015.

 Workshop versions of accepted papers will be due on April 3, 2014 so that they can be circulated to discussants and conference participants in advance.

The conference announcement is online here.  Information about prior conferences, including attendees and the titles of workshopped papers, is available here and here.  As before, we are expecting that scholars will ask their home institutions to cover travel expenses.

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Introducing Professor Marc Roark

Marc Roark

Marc Roark teaches Property, Commercial Law,  Law and Literature, Law and Society, and Law and Religion at Savannah Law School.   Before joining the faculty at Savannah Law School, Professor Roark held appointments at the University of Missouri, the University of Tulsa, and the University of La Verne.

Marc is a well-known Property scholar, and has appeared nationally in interviews by NPR and MSNBC News.   His articles include Homelessness at the Cathedral (Missouri Law Review) and Payment Systems, Consumer Tragedy, and Ineffective Remedies (St. John’s Law Review). You can sample more of Marc’s articles at his SSRN page.

Marc is currently working on a book project titled unPopular Property, describing the intersection of property and identity in outlier cultures.  He is also working on an article articulating the need for human impact statements as a part of public and private land development.

Welcome Marc!

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Should More Land Use Professors Be Libertarians?: Part III (Final Post)

This is (hopefully) the last in a series of three posts. In the first, I asked why more land use professors are not libertarians, considering the strong leftist critique of local government. In the second, I suggested that one reason for the leftist commitment to local government (and specifically to local government land use control, albeit often in the guise of “regionalism”) is that the relevant libertarian alternatives – namely, the marketplace and the common law of nuisance – are far worse. Nevertheless, I conceded that this answer was unsatisfactory, considering that many leftists – myself included – betray a Tocquevillian optimism about local government that is difficult to square with the position that local governments are merely the least bad of all the alternatives. So I am left here, in this third post, with the hardest question: How can left-leaning local government scholars have any optimism about local government in light of the abusive local government practices we have witnessed (and documented)?

State Structuring of Local Governments

Alright, here goes… While there is no denying the manifold abuses of which local governments are guilty (see my initial post), the blame for these abuses really falls upon state governments, not local governments. The reason local governments act in the parochial fashion they do is because states have empowered and constrained local governments in such a way that effectively forces local governments to be parochial. In a variety of ways, states have facilitated and encouraged the proliferation of small local governments within metropolitan regions, each of which is thus coerced into a zero-sum competition with the others for scarce revenues. States have, at the same time, dumped all kinds of unfunded and underfunded mandates on local governments, which they must meet with whatever revenue they raise locally. Yet, there is one saving grace for local governments: states have given them an awesome power — the land use power. Is it any surprise that local governments use the biggest power states have given them to solve the biggest problem states have saddled them with –an ongoing obligation to provide costly services with limited funds? The local government abuses I mentioned in my initial post, including the “fiscalization” of land use, exclusion of undesirable land uses (and users), strategic annexation and incorporation efforts, and sprawl are thus not things local governments do because they are inherently corrupt; they do so because the state has structured local government law so as to make these abuses inevitable.   Read More

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34.3 (First Amendment News) Roberts Court 2014-2015 First Amendment docket — How it’s shaping up

Supreme-Court-Justices-2-570x349Earlier today the Court denied review in the following three First Amendment cases:

Review Pending

Review Granted

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The Same-Sex Marriage Cases

Just a quick thought about the Court’s certiorari denials today.  All eyes now turn to the Sixth Circuit, where a case is pending that could produce an opinion upholding same-sex marriage prohibitions.  Depending on when that opinion comes down, the Supreme Court could resolve the constitutional issue this Term.  Or perhaps next Term.

Or not. The Sixth Circuit rarely misses an opportunity to go en banc.  If the panel opinion is taken en banc, then who knows when that opinion would reach the Justices.  Perhaps the losers in the Sixth Circuit will not request en banc review (I don’t know if the Sixth ever goes en banc sua sponte), but that is far from clear.

Bottom line–don’t expect a Supreme Court decision on this until 2016 at the earliest.  That might be bad news the Republican presidential nominee, who may have to take an unpopular stand saying no to same-sex marriage into the general election.

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Arizona State Legislature v. Arizona Ind. Redistricting Comm’n

I was planning to write a post on how the Constitution uses the word “legislature,” but after reading Chief Justice Hughes’ opinion for the Court in Smiley v. Holm, 285 U.S. 355 (1932), I think that is unnecessary.  Hughes does a good job of laying out the arguments in the context of Article One, Section Four.  Let me summarize the case and then explain why Smiley‘s holding should be extended in Arizona State Legislature (the congressional redistricting case that the Supreme Court just decided to hear).

After the 1930 Census, the Minnesota Legislature passed a congressional redistricting plan that was vetoed by the Governor.  One branch of the legislature then passed a resolution ordering the Secretary of State to implement the plan in spite of the veto.  A suit was filed challenging this plan as unlawful, and the counterargument was that Article One, Section Four gave the Legislature exclusive authority over congressional districting.  The Supreme Court held that the Legislature’s position was without merit.  In part, this was because longstanding practice in the states was that governors could veto in congressional redistricting legislation.  The Court also said that there was “no suggestion in the federal constitutional provision of an attempt to endow the legislature of the state with power to enact laws in any manner other than that in which the constitution of the state has provided that laws shall be enacted.”

The Arizona case can be distinguished from Holm in two ways.  First, there is no longstanding practice for states to remove by constitutional amendment the power of the legislature to undertake congressional redistricting.  Second, one could say that the dictum just quoted assumes that the legislature will play a role in redistricting by referring to laws that are being enacted.  If the state constitution gives that power exclusively to a special commission, then law is not being enacted in the ordinary way.  On the other hand, the dictum can be read broadly to mean “whatever the State Constitution says on this question is consistent with the Federal Constitution.”  Here the Arizona Constitution is provided that no laws on congressional redistricting shall be enacted.  End of story.

Why do I think that the latter interpretation is better?  Mainly on structural grounds.  The remedy for partisan gerrymandering cannot be placed within the authority of the institution that does the gerrymandering.   In practice, there is no judicial review of partisan gerrymandering claims and Congress will not act.  Thus, the only plausible remedy is through an initiative or referendum in states that permit them.  There is the argument that a state can limit partisan gerrymandering in its constitution while still letting the legislature draw district lines.  Perhaps the Arizona referendum goes too far by cutting out the Legislature entirely.  The problem is that state constitutional provisions on partisan gerrymandering (such as in Florida) have not led to any meaningful relief, so I’m not sure this option is real.

This will be a fascinating case if the Court reaches the merits.  I must admit that my thoughts on this issue have changed as I’ve worked through the materials.  At first I was sure that the Arizona amendment was constitutional.  Now I have doubts, though I still think on balance that this amendment is constitutional.

 

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“If you don’t like what’s being said, change the conversation.”

deathanddeclineAt high holiday services in my conservative Jewish synagogue, I reflected on the omnipresence of narratives of decline in my professional and religious life. Apparently, the approved sermon topic at many conservative pulpits this year was how to rescue the shrinking conservative movement.  The Pew Report’s stark figures on that decline, illustrated to the right, suggested the theme of the sermon (at least in my congregation): reaching out to new revenue sources applicants potential converts congregants.  As the rabbi stated, unless we find more congregants (and soon!) by opening the doors & working to engage new audiences, we will wither on the vine.

This sermon was explicitly delivered as a recruiting pitch, and I found it familiar.  Doesn’t the claim — “we’ve learned our lesson, we’re now going to innovate” — sound exactly like a thousand Law Dean speeches?   Here’s a summary of one, by an especially skillful and media-savvy Dean: Read More

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Concealing Campus Sexual Assault: An Empirical Examination

On October 1 of every year, higher education institutions across the country are required to publish reports containing crime data for the previous calender year. So, it seemed appropriate today that I would post a draft of my article about whether universities are giving accurate information in those reports regarding sexual assault. The draft is available here and this is the abstract:

This study tests whether there is substantial undercounting of sexual assault by universities. It compares the sexual assault data submitted by universities while being audited for Clery Act violations with the data from years before and after such audits. If schools report higher rates of sexual assault during times of higher regulatory scrutiny (audits), then that result would support the conclusion that universities are failing to accurately tally incidents of sexual assault during other time periods. The study finds that university reports of sexual assault increase by approximately 44% during the audit period. However, after the audit is completed, the reported sexual assault rates drop to levels statistically indistinguishable from the pre-audit time frame. The results are consistent with the hypothesis that the ordinary practice of universities is to undercount incidents of rape. Only during periods in which schools are audited do they appear to offer a more complete picture of sexual assault levels on campus. Further, the data indicate that the audits have no long-term effect on the reported levels of sexual assault as those crime rates return to previous levels after the audit is completed. This last finding is supported even in instances when fines are issued for non-compliance. The results of the study point toward two broader conclusions directly relevant to policymaking in this area. First, greater financial and personnel resources should be allocated commensurate with the severity of the problem and not based solely on university reports of sexual assault levels. Second, the frequency of auditing should be increased and statutorily-capped fines should be raised in order to deter transgressors from continuing to undercount sexual violence. The Campus Accountability and Safety Act, presently before Congress, provides an important step in that direction.

I will be continuing to post about sexual assault at universities and the findings of the study over the next week or two.