From Google to Tolstoy Bot: Should the First Amendment Protect Speech Generated by Algorithms?

Stuart Minor Benjamin, Algorithms and Speech, 161 U. Pa. L. Rev. 1445 (2013), available at SSRN.

Information, increasingly, is everywhere. Machines gather information, process it, and automatically communicate it, often in terms humans understand. Bots tweet on Twitter; Fitbits communicate a user’s activity record; Project Tango devices render 3D maps; and IBM’s Watson can now argue. With algorithms increasingly writing, drawing, and even debating, a central question for regulators, courts, and scholars is to what extent the First Amendment protects speech generated by algorithms. If algorithmic communication falls within First Amendment coverage, regulators will have a more difficult time governing it. But if it does not, courts will need to explain how the exclusion can sit comfortably with First Amendment theory and current doctrine.

Stuart Minor Benjamin positions the puzzle of algorithmic speech as part of a larger project in understanding First Amendment jurisprudence and its expansion and contraction. In previous work, Benjamin has asked how hard it would be to expand First Amendment coverage; in Algorithms and Speech, he asks how hard it would be to narrow the existing jurisprudence to exclude a practice that would otherwise be covered. Benjamin recognizes the potential regulatory consequences of First Amendment coverage of algorithmic speech. But he surveys Supreme Court caselaw and concludes that there is no principled way to exclude many algorithmic communications from speech protection without excluding much other communication that we deem squarely within the First Amendment’s coverage. Continue reading "From Google to Tolstoy Bot: Should the First Amendment Protect Speech Generated by Algorithms?"

 
 

Jotwell 2014 Summer Break

Jotwell is taking a short summer break. Posting will resume on Tuesday, September 2. However, even while we’re on break, we’ll be accepting submissions, editing them, updating the site’s theme, and of course getting ready for Jotwell’s 5th Anniversary Conference on Legal Scholarship We Like and Why It Matters. Please note that Registration for Jotwell’s conference is now open.

If you like Jotwell, why not share — help us find more readers. Tell a friend about Jotwell. And if you are an academic reader, please consider recommending Jotwell to your students.

We have a Jotwell Flyer that you can print out and post, or perhaps even hand out at Orientation.

Jotwell Flyer - click for hi-res

We’ll be back in two weeks — after the US Labor Day holiday.

 
 

What We Talk About When We Talk About Crimes

John S. Stinneford, Punishment Without Culpability, 102 J. Crim. L. & Criminology 653 (2012).

John Stinneford begins his article by asking the reader to imagine herself a UPS delivery truck driver in Tampa, Florida. He continues:

While on your way to make [a] delivery one Friday, you are stopped by the Tampa police. They seize the package from the back of your truck, open it, and discover one kilogram of cocaine. You are charged with possession of cocaine with intent to deliver, a crime punishable by fifteen years in prison. To convict you of this crime, prosecutors are not required to prove that you knew the package contained cocaine or any other illicit substance. All they have to prove is that you possessed it and intended to deliver it. You do have the right to raise lack of knowledge as an affirmative defense – but the burden rests on you.

Is this legal? Probably. Why is the Supreme Court OK with that? Stinneford’s article explores this question. Continue reading "What We Talk About When We Talk About Crimes"

 
 

What if you woke up one day in a place where there was no Courts Law?: The Impact of Teaching Procedure on the Legal Academy

Elizabeth G. Thornburg, Erik S. Knutsen, Carla Crifò, Camille Cameron, & David Bamford, A Community of Procedure Scholars: Teaching Procedure and the Legal Academy, 51 Osgoode Hall L.J. 93 (2013), available at SSRN.

In identifying legal scholarship worth celebrating (i.e., scholarship we like lots and that matters), few articles would seem to qualify better than one that traces the mutually supportive relationship between the teaching of civil procedure and the strength of the academic community and the scholarship in the field.

One such article is A Community of Procedure Scholars, a piece by multiple authors from four different legal systems—United States, Canada, Australia, and England and Wales. The authors compare and contrast the treatment of Civil Procedure in the law school curriculum and in the scholarly literature of their respective systems. Continue reading "What if you woke up one day in a place where there was no Courts Law?: The Impact of Teaching Procedure on the Legal Academy"

 
 

The Market For “Charlatans”

Alvaro Sandroni, At Least Do No Harm: The Use of Scarce Data, 6 Am. Econ. J.: Microecon. 1 (2014).

Corporate lawyers and their clients routinely hire experts to deliver probabilistic forecasts. For instance, they hire credit rating agencies to deliver credit ratings, which effectively are probabilistic forecasts of credit default events. They also hire experts to deliver probabilistic forecasts of economic, legal, and political events, and even weather events. In hiring an expert, however, they face two distinct problems. The first is a moral hazard problem—how to evaluate, or “score,” an expert’s forecasts in a way that incentivizes the expert to honestly report her opinions (and, importantly, does not perversely incentivize the expert to dishonestly report her opinions to game the system). The second is an adverse selection problem—how to distinguish informed experts (genuine experts) from uninformed experts (charlatans).1 The scoring problem was famously solved by Glenn Brier, who proposed a scoring rule that gives the proper incentives.2 The Brier score is essentially the mean squared error of the expert’s forecasts over the evaluation sample. Solutions to the “charlatans” problem, however, have proven harder to come by. When it comes to probabilistic forecasts, it turns out that it is difficult to devise ex ante tests to screen informed experts from uninformed experts. Basically, the difficulty is that a test which is designed to pass a genuine expert with high probability can also be passed by a strategic charlatan with high probability.3 And ex post warranties are generally not effective.4

In a recent article, Alvaro Sandroni proposes a novel contractual solution to the charlatans problem. More specifically, Sandroni shows that it is possible to write a contract that incentivizes a genuine expert to honesty report her informed opinion and, at the same time, incentivizes a charlatan to “do no harm,” i.e., not report a misleading, uninformed opinion. What’s more, the contract is simple and enforceable, as it makes the expert’s fee contingent on two observable and verifiable facts: the expert’s opinion and the outcome of the event. That said, the contract’s ability to provide the correct incentives depends on a key assumption about the behavior of charlatans, which may or may not hold in reality. Continue reading "The Market For “Charlatans”"

 
 

Originalism and Interracial Marriage

David R. Upham, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause (2013), available at SSRN.

Legislation banning interracial marriage has long played an important role in debates over originalism and constitutional interpretation. When such laws came under legal attack in the 1950s and 1960s, their seeming compatibility with originalism was emphasized by conservatives and segregationists as a justification for courts to uphold them.Since the Supreme Court invalidated laws banning interracial marriage in Loving v. Virginia (1967), their apparent acceptability under the original meaning has been deployed by a very different set of commentators: opponents of originalism, most of them associated with the political left. For these critics, the compatibility of laws banning interracial marriage with originalism is not a reason to uphold them, but rather a reason to reject originalism itself. If originalist constitutional interpretation requires such an abhorrent result as upholding blatantly racist laws restricting marriage rights, then perhaps originalism itself is morally bankrupt.

Regardless of the purpose for which it is used, the originalist case for the constitutionality of laws banning interracial marriage seems initially strong. Public opposition to interracial marriage was widespread when the Fourteenth Amendment was ratified and for decades thereafter. Numerous states, northern and southern, banned interracial marriage at the time the amendment was adopted, and the Supreme Court unanimously endorsed the constitutionality of anti-miscegenation laws in Pace v. Alabama in 1883. As late as 1968, a year after Loving, a Gallup poll showed that only 20% of Americans approved of interracial marriage between blacks and whites. This and other similar evidence helps explain the longstanding conventional wisdom that the result in Loving cannot be justified on originalist grounds.

In his recent unpublished paper, “Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause,” Professor David Upham has produced the most far-reaching challenge to that conventional wisdom so far. The few previous originalist defenses of Loving, such as an important 2012 article by Steven Calabresi and Andrea Matthews, do not consider as wide a range of evidence. Moreover, Calabresi and Matthews concede that the “original intent” of the amendment and the expectations of the public were consistent with the constitutionality of laws banning interracial marriage, arguing only that the Amendment’s “original public meaning” cuts against those laws. Continue reading "Originalism and Interracial Marriage"

 
 

Taking Administrative Law to Tax Exceptionalism

Kristin E. Hickman, Administering the Tax System We Have, 63 Duke L.J. 1717 (2014), to be reprinted in Duties to the Tax System: A Resource Manual for Tax Professionals (Scott Schumacher & Michael Hatfield eds, forthcoming 2014), available at SSRN.

In addition to regular servings from the Administrative Law Review and Yale Journal on Regulation, I look forward to two annual administrative law symposia. This year’s symposium from the George Washington Law Review will not become available here until later this month, so I’ll focus on the Duke Law Journal’s Taking Administrative Law to Tax Symposium, which was published in May. There is a lot to like about this symposium, starting with a refreshingly succinct foreword from Andy Grewal and followed by articles from Ellen Aprill, Bryan Camp, Kristin Hickman, Steve Johnson, Leandra Lederman, and Lawrence Zelenak. [Video of the symposium is available here, and the written issue is here.]

As the title suggests, the symposium focuses on tax exceptionalism, or “tax myopia” as Paul Caron coined the phenomenon two decades ago. Tax exceptionalism is the misperception that tax law is so different from the rest of the regulatory state such that general administrative law principles do not apply. But tax exceptionalism is dying—something my tax colleague Stephanie Hoffer and I document in a forthcoming article on the Tax Court and the Administrative Procedure Act (“APA”). In Mayo Foundation v. United States, for instance, the Supreme Court refused to apply a standard less deferential than Chevron to the Treasury Department’s interpretation of the tax code, noting that it was “not inclined to carve out an approach to administrative review good for tax law only.” That same year (2011), in Cohen v. United States, the D.C. Circuit held that the judicial review provisions of the APA apply to IRS notices: “The IRS is not special in this regard; no exception exists shielding it—unlike the rest of the Federal Government—from suit under the APA.” Continue reading "Taking Administrative Law to Tax Exceptionalism"

 
 

Is Standing Out the Best Way to Fit In?

Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U.L. Rev. 715 (2014), available at SSRN.

I’m a sucker for a contrarian perspective, and that’s certainly what one finds in Brian Soucek’s recent article. It’s pretty conventional wisdom—although often decried—that the safest bet for identity expression in the workplace is by assimilating to the expectations of the majority. Indeed, there’s a whole critical literature devoted to the “covering” and “working identity.”

Looking Gay Enough challenges that proposition—at least where sexual orientation is concerned and at least in terms of what identity strategy maximizes an employee’s prospects of prevailing in a lawsuit. Professor Soucek, of course, is writing about the Never Never Land that current judicial interpretations of Title VII have created: it’s not illegal to discriminate on the basis of sexual orientation but it is illegal to discriminate against individuals on the basis of failure to conform to gender stereotypes (except for the ultimate stereotype that individuals are sexually attracted to persons of the opposite sex). Continue reading "Is Standing Out the Best Way to Fit In?"

 
 

Teaching Trusts and Estates

Robert H. Sitkoff, Trusts and Estates: Implementing Freedom of Disposition, 58 St. Louis U.L.J. 643 (forthcoming, 2014), available at SSRN.

Professor Robert Sitkoff’s article, Trusts and Estates: Implementing Freedom of Disposition, provides practical information and addresses major themes for professors teaching trusts and estates including intestacy, wills, trusts and planning for incapacity. It is a wonderful primer for professors and students new to the area of estates and trusts. For the more seasoned professors, Professor Sitkoff provides policy questions that will certainly provide an opportunity for healthy debates amongst the students. There are only a handful of articles that explicitly address trusts and estates pedagogy; this article does not simply summarize the curriculum, but rather it encourages law faculty to think in a big picture way about the overarching issues. As such, it is an important contribution to the scholarly literature.

Professor Sitkoff suggests that the subject be viewed through the lens of “freedom of disposition,” in contrast to the more traditional approach that usually proceeds according to methods of succession (probate succession by will and intestacy, and non-probate succession by inter vivos trust, pay-on-death contract, and other such will substitutes). While recognizing there are limitations on the freedom of disposition, he convincingly argues that law and policy start with this premise and that our analysis of them should also start that way. The priority, in a property transfer transaction, is placed on the intent of the transferor over the putative rights of the recipient of the property, whether the property passes via intestacy, will, trust, or nonprobate transfer. Continue reading "Teaching Trusts and Estates"

 
 

In Defense

James Goudkamp, Tort Law Defences (2013).

Who cares about tort defenses, or as Australian turned Englishman James Goudkamp spells it, “defences”? The decline in the potency of tort defenses over the last century, their only occasional use in actual litigation, their atrophy in contrast to the robust elements of negligence law, their lack of specificity to tort, their definition as second-tier questions, and their frequent specification by statute rather than common law—all have resulted in a fairly undersized group of interested scholars, according to Goudkamp.1 But for those of us who, nevertheless, maintain an interest in the topic, Goudkamp’s book is a must read.

At the start, after considering rival definitions, Goudkamp defines a tort defense as a device which “relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present.”2 Then, through a vivid series of case examples, Goudkamp differentiates defenses from denials of an element of plaintiff’s prima facie case. Once separated, Goudkamp divides defenses into two mutually-exclusive sets: justification defenses and public policy defenses. In the first group “the defendant acted reasonably in committing a wrong.”3 Included within this group are defenses such as self-defense, consent, and public necessity. In the second, the defendant “makes no claim whatsoever about the justifiability of his acts,” but should not face liability anyhow.4 To this category, Goudkamp assigns defenses such as absolute privilege, various immunities and limitation bars. In addition to this dual taxonomy, Goudkamp ultimately argues for a third category which he terms “denials of responsibility,” and distinguishes them from excuses, for infancy and insanity.5 Continue reading "In Defense"

 
 

An Empirical Test of Public Choice Theory

Susannah Camic Tahk, Public Choice Theory & Earmarked Taxes, N.Y.U. Tax L. Rev. (forthcoming, 2015), available at SSRN.

In 1980, James Q. Wilson, in The Politics of Regulation, predicted that laws with diffuse costs and concentrated benefits would be relatively easy to enact, but that laws with concentrated costs and diffuse benefits would be relatively hard to enact and, once enacted, hard to maintain. This hypothesis, one of the pillars of public choice theory, has long been asserted without empirical verification. Indeed, in 1994, Donald Green and Ian Shapiro, in Pathologies of Rational Choice Theory, challenged the willingness of theorists to accept such unverified predictions as true: “The discrepancy between the faith that practitioners place in rational choice theory [of which public choice theory is a branch] and its failure to deliver empirically warrants closer inspection of rational choice theorizing as a scientific enterprise.” In Public Choice Theory & Earmarked Taxes, Susannah Camic Tahk provides the first rigorous empirical support for Wilson’s hypothesis.

Her study explores the histories of 1497 state-level earmarked taxes between 1997 and 2005. Earmarked taxes, in general, produce more concentrated benefits than taxes the proceeds of which flow into a state’s general fund. Thus, we would expect earmarked taxes to perform strongly as revenue generators. And, indeed, Tahk finds that the earmarked taxes in her sample raised 58.39% more revenue in 2005 than in 1997—a larger percentage increase than any major federal tax over the same period. Continue reading "An Empirical Test of Public Choice Theory"