Monthly Archives: November 2014

Why FISH:FISHES :: INFORMATION:INFORMATIONS

Tim Wu, Properties of Information and the Legal Implications of Same (Columbia Law and Economics Working Paper No. 482, 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2446577

Tim Wu’s new essay, Properties of Information and the Legal Implications of Same, offers both a survey of recent legal and economic scholarship on information and a provocative reconceptualization of it. Wu posits that information is commonly described as an unusual resource because its very nature means that it possesses the twin properties of being non-excludable and non-rival. Taking these properties as givens, information can be readily pegged as a public good, and a strong case can be made out for government intervention to foster the production and/or dissemination of the information (whether in the form of IP rights, subsidies, or something else). However, Professor Wu’s reading of the literature, combined with his sprinkling of original comments on the intrinsic nature of information, suggests that the story is not quite this simple. (Although the review sweeps broadly, discussing securities regulation, contract theory, consumer protection, communications, and free speech, the bulk of it addresses intellectual property.) Professor Wu argues that information is not by its very nature non-excludable or non-rival. Rather, the subject matter of the information, the context in which the information exists, and the structure of the industry that employs the information all matter. They all affect the extent to which information is a public good. As a consequence, Professor Wu counsels against a single policy prescription for problems concerning the underproduction or under-dissemination of information and in favor of context-specific, dynamic laws governing information.

Professor Wu argues that non-excludability per se is not what makes information prone to free-riding problems (and thus the problem of underproduction without government intervention). Positing that information “consists of patterns, which must subsist in some form, whether ink on paper, stored magnetic charges, or whatever else” and that information is only valuable if a human mind perceives it, he takes it to be self-evident that people can in fact be readily excluded from information. “If you don’t have a ticket, you won’t see the movie, and we are all excluded from the text of a book locked in a vault for which the key is lost, or from the particular information contained in an engraving written in a lost language, like hieroglyphs before the discovery of the Rosetta stone.” Instead, Professor Wu suggests that information raises a free-riding concern because, among other things, it can often be copied at a relatively low cost. Presuming that copying costs vary, this shift in the conceptual framework for understanding what enables free-riding is significant because the argument in favor of government intervention shifts from being inherent in the essential nature of information to contingent on the particularities of the context in which information exists. Continue reading "Why FISH:FISHES :: INFORMATION:INFORMATIONS"

Honouring the Capacity for Choice

Denise Réaume, Dignity, Choice, and Circumstances, in Understanding Human Dignity 33 (Christopher McCrudden, ed., Oxford University Press, 2013).

Denise Réaume is Canada’s foremost legal theorist on the concept of dignity. She has committed much of her scholarly work to elucidating its contours and teasing out its complexities. One of my favourite of her earlier pieces is “Indignities: Making a Place for Dignity in Modern Legal Thought”. In that piece, Réaume deduces a distinct dignity interest warranting legal protection in the common law through careful review of the evolving case law addressing intentional infliction of nervous shock.

Jump forward more than ten years and we find Réaume on to the interaction of dignity, choice, and circumstances. The title of her chapter is a little misleading, perhaps, since Réaume’s focus is more on the capacity for choice than its availability. Continue reading "Honouring the Capacity for Choice"

Super-Sizing Health Reform

William M. Sage, Putting Insurance Reform in the ACA’s Rear-View Mirror, 51 Hous. L. Rev. 1081 (2014).

For this Jot, I wanted to review recent or forthcoming scholarship on the bombshell D.C. Circuit Halbig v. Burwell decision, now awaiting en banc rehearing and buttressed by a similar decision from an Oklahoma District Court in Pruitt v. Burwell. But the only articles that I could find were Michael Cannon and Jonathan Adler’s piece that started the whole mess and a succinct rebuttal in State Tax Notes. My search, however, did turn up a terrific Commentary by Bill Sage, which I had somehow missed in my routine reading. Appropriate at the time that Sage wrote his Commentary, Sage gave Halbig a mere one-line, one-footnote reference in his insightful perspective on the aims and limits of recent U.S. health care reform efforts. Thankfully, it was Halbig that enabled me to discover Sage’s piece.

Necessarily, given the Affordable Care Act’s 2,400-page length and complexity, many of us have focused our writing on discrete aspects of the law. Sage instead offers a cogent flyover, bringing to bear his years of experience in this business, to explain what is and isn’t working in the ACA. Stepping back from the details, Sage identifies the ACA’s ambitious agenda not only to achieve near-universal health insurance coverage but also to reform the health care delivery system and improve population health. He commends this “triple aim,” emphasizing that insurance reform is, and must be, just the beginning of a successful health policy agenda. Continue reading "Super-Sizing Health Reform"

Representing Child Migrants (in the Midst of Our Border Crisis)

Some of the summer’s biggest news headlines focused on the surge of children from Guatemala, El Salvador, and Honduras who, fleeing widespread violence and extreme poverty, have crossed the U.S.-Mexico border to seek refuge in the United States.1 The border crisis has sparked a highly politicized debate, with compromise solutions shifting steadily to the right. The most recent bipartisan proposal would, in many cases, require detention of minors (in violation of the 1997 Flores v. Reno settlement requiring the release of migrant children, when possible, to relatives or foster care) and result in rapid deportations without due process.

Within this contemporary context, Shani King’s Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors, provides a fresh perspective on the issue. King argues that three constellations of international and regional human rights standards—children’s rights, immigrants’ rights, and the right to civil counsel—should be interpreted together to provide the right to free legal counsel for unaccompanied minors in immigration proceedings. King offers an extremely helpful collection of international and regional standards on these rights, as well as comparative examples from countries that provide representation to unaccompanied minors facing immigration proceedings. Congress, he concludes, should likewise enact legislation guaranteeing legal representation to unaccompanied minors. King’s article is thought-provoking and practically useful, and it can serve as a source of persuasive international authority to support recent proposals and lawsuits calling for constitutional due process rights of unaccompanied minors. Continue reading "Representing Child Migrants (in the Midst of Our Border Crisis)"

Future Present?

Mr. Young means to test empirically the existence of “constitutional moments,” changes occurring outside formal processes of amendment that Bruce Ackerman has posited are important elements in the American constitutional progress. To this end, Young focuses Measure on the so-called Reconstruction “moment,” from the period preceding the 1866 congressional elections through 1868, the time range within which Ackerman discerns a structured process of profound commitment to a new racially open political, legal, and institutional order. (See Bruce Ackerman, We The People: Transformations 99-252 (1998).) Measure studies the front pages of some 600 newspapers, viewing 2,000 articles published between June 1, 1866 and December 31, 1866; 2,612 articles published between June 1, 1868 and December 31, 1868; 5,000 newspaper pages on which the word “constitution” appeared between January 1, 1866 and December 31, 1868; and 15,322 newspaper front pages published between June 1 and December 31 in 1866, 1868, 1870, 1872, and 1884. All told, Young takes into account 32,544,870 words. (See Table I, P. 2021.)

In 1866 and 1868, “results indicate empirical support for the hypothesis that Americans were paying attention to constitutional-level issues during these periods.” The newspaper coverage surveyed between 1866 and 1872 and then 1884 shows “support for both the notion that constitutional issues were of high salience during this period and that sustained attention to those issues spiked during certain key moments in 1866 and 1868.” “[E]vidence of both constitutional discourse and a gradual decline in the prevalence of that discourse over time” is “consistent the with predictions of Ackerman’s theory that sustained popular attention to constitutional politics peaks during transformative constitutional moments and then declines as normal politics once again take center stage.” (P. 2053.) “Had my results indicated either no evidence of constitutional discourse, or a constant level of such discourse across time, it would have called into question the entire theoretical superstructure of Ackerman’s work.” (PP. 2053-54.)

“[F]or all the millions of words and thousands of newspaper articles this Note analyzes,” Mr. Young concedes, “this is a rather modest conclusion.” “[T]here is nothing surprising about the fact that the media was paying attention to the passage of major constitutional amendments in the aftermath of a devastating civil war.” (P. 2053.) It’s not Young’s bottom line, however, that marks his effort as important. “[M]illions of words and thousands of newspaper articles”—no law student reads this much! How did he do that? Continue reading "Future Present?"

Discrimination by Database

Solon Barocas & Andrew D. Selbst, Big Data’s Disparate Impact, available at SSRN (2014).

I have previously written about an NYU School of Internet scholars, led by the philosopher Helen Nissenbaum, whose work is “philosophically careful, intellectually critical, rich in detail, and humanely empathetic.” There is also a Princeton School, which orbits around the computer scientist Ed Felten, and which is committed to technical rigor, clear exposition, social impact, and creative problem-solving. These traditions converge in Big Data’s Disparate Impact by Solon Barocas and Andrew Selbst. The article is an attempt to map Title VII employment discrimination doctrine on to data mining, and it is one of the most interesting discussions of algorithmic prediction I have read.

The pairing—anti-discrimination law and data mining—is ideal. They are both centrally concerned with how overall patterns emerge from individual acts; they shift back and forth between the micro and the macro, the stones and the mosaic. Moreover, they are both centrally concerned with making good decisions: each in its own way aspires to replace crude stereotypes with nuanced reason. It would seem then, that Big Data ought to be an ideal ally in Title VII’s anti-discrimination mission. But Barocas and Selbst give reasons to think that the opposite may be true: that data mining will introduce new forms of bias that Title VII is ill-equipped to remedy. Continue reading "Discrimination by Database"

Marked!

Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 Stan. L. Rev. (Forthcoming 2014), Available at SSRN.

Most people, both lay and expert, would not quibble with the claim that American criminal justice is primarily adjudicative in nature. Specifically, the criminal justice system is concerned with separating the factually innocent from the guilty (erring procedurally on the side of innocence) and meting out punishment to the guilty. Thus, prosecutors dismiss weak cases and pursue charges only when guilt can be established. The guilty either plead or are convicted after trial, and a conviction is the primary basis for adverse consequences, such as jail and probation. Most would also acknowledge that the adjudicative function sometimes goes off the rails, for example, when aggressive plea bargaining or poorly structured sentencing guidelines coerce innocent people to plead guilty or when excessive pretrial detention attaches to a minor charge. However, often people think of such occurrences as deviations from or perversions of a system that in principal differentiates between the innocent and guilty and punishes the guilty. It might come as a surprise then to find out that in New York City, a very large percentage of criminal cases are resolved completely irrespective of defendants’ guilt or innocence.

Conducting a multi-year ethnography of New York City misdemeanor court, Professor Issa Kohler-Hausmann observed, day after day, prosecutors dismiss cases with ample evidence of the defendant’s guilt and insist on guilty pleas in the face of questionable facts. Contrary to existing descriptions of misdemeanor courts as conviction mills that fail to differentiate between types of misdemeanants or assembly-lines that produce quick but schizophrenic dispositions, Kohler-Hausmann discovered that NYC misdemeanor courts engage in meticulous categorizations of defendants and apply dispositions (continuance and then dismissal (ACD), conviction for a violation, misdemeanor conviction) to the differentiated categories of defendants in predictable manners. However, the categories of defendants are not determined along a spectrum of factual guilt. Accordingly, it is not necessarily the case that the defendants against whom there is weak evidence receive ACDs and those against whom there is ample evidence are convicted of the highest charge. Instead, the NYC misdemeanor system sorts defendants and graduates outcomes on the basis of defendants’ prior contacts with the system. Kohler-Hausmann’s quantitative analysis demonstrates that prior misdemeanor convictions are highly predictive of future misdemeanor convictions, and the probability of being convicted on a pending misdemeanor charge significantly increases with every past misdemeanor conviction. By contrast, prior felony convictions do not correlate significantly with conviction on pending felony charges (although they most certainly affect sentencing once there is a conviction). In short, the more times an individual spends in the misdemeanor court system, the more likely it is that she will be convicted, regardless of the evidentiary strength of the case. In fact, through a series of stunning vignettes, Kohler-Hausmann illustrates just how adverse prosecutors, judges, and even some defense attorneys are to introducing questions of factual innocence into the misdemeanor disposition process. Continue reading "Marked!"