Data for Peace: The Future of the Internet of Things

The Atomic Age of Data: Policies for the Internet of Things Report of the 29th Annual Aspen Institute Conference on Communications Policy, Ellen P. Goodman, Rapporteur, available at SSRN.

The phrase “Internet of Things,” like its cousin “Big Data,” only partially captures the phenomenon that it is meant to describe. The Atomic Age of Data, a lengthy report prepared by Ellen Goodman (Rutgers Law) following a recent Aspen Institute conference, bridges the gap at the outset: “The new IoT [Internet of Things] – small sensors + big data + actuators – looks like it’s the real thing. … The IoT is the emergence of a network connecting things, all with unique identifiers, all generating data, with many subject to remote control. It is a network with huge ambitions, to connect all things.” (P. 2) The Atomic Age of Data is not a scholarly piece in a traditional sense, but it is the work of a scholar, corralling and shaping a critical public discussion in an exceptionally clear and thoughtful way.

The IoT is in urgent need of being corralled, at least conceptually and preliminarily, so that a proper set of relevant public policy questions may be asked. What are the relevant opportunities and hazards? What are its costs and benefits, to the extent that those can be discerned at this point, and where should we be looking in the future? That set of questions is the gift of this report, which is the documented product of many expert and thoughtful minds collaborating in a single place (face to face, rather than via electronic networks).1 Continue reading "Data for Peace: The Future of the Internet of Things"

 
 

What Big Data Means for the Fourth Amendment

  • Andrew G. Ferguson, Big Data and Predictive Reasonable Suspicion, 163 Univ. Penn. L. Rev. 327 (2015).
  • Michael Rich, Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment, __ Univ. Penn. L. Rev. __ (forthcoming 2016), available at SSRN.

Hear the term “big data,” and the police are not likely to be the first word that comes to mind. Whether or not you are familiar with the term, the vast quantities of digitized information available today—and the data analytics that are applied to it—already shape your world. The movie recommended to you by Netflix, the date you chose on OkCupid, or the ad you saw on your Facebook feed are all the result of the pervasiveness of big data. That same big data revolution is coming to policing. The NYPD operates a “domain awareness system” that links license plate reader data, “smart” cameras, law enforcement databases, texts of 911 calls, and radiation sensors information from around the city. Police departments in Seattle and Los Angeles are piloting predictive policing software that directs officers to places where crime is most likely to happen in the future. Other law enforcement agencies are considering the adoption of social media software that sifts through tweets, likes, pins, and posts for potential on-line threats. To be sure, the police have always relied upon large quantities of data, but the promise of “big data” lies in its enormous volume, its reach, and the application of sophisticated computer analytics.

In response, there is a small but important emerging scholarship that addresses some of the difficult questions posed by the use of big data by the police. In two recent pieces, both Andrew G. Ferguson and Michael Rich address these issues especially well. While each focuses on different aspects of big data use, and each comes to different conclusions about the Fourth Amendment implications, this pair of articles introduces an evolving set of concerns that should be incorporated into every criminal procedure scholar’s current knowledge. Continue reading "What Big Data Means for the Fourth Amendment"

 
 

Anti-Plaintiff Bias in the New Federal Rules of Civil Procedure

Patricia W. Hatamyar Moore, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees, 83 U. Cin. L. Rev. 1083 (2015), available at SSRN.

On December 1, 2015, several major amendments to the Federal Rules of Civil Procedure took effect. Some of these changes might, at first glance, seem dry and technical, such as shortening the time to serve process. Other changes, such as the addition of a so-called “proportionality” standard to the scope of discovery, have been the subject of heated debate in the months since the changes were proposed.

While it might be tempting to dismiss all but the most controversial amendments as nothing more than footnotes in a new casebook, each of these amendments are part and parcel of anti-plaintiff trends in procedural rulemaking. Patricia Moore’s article should be required reading for any professor preparing to teach the new rules, because it combines a clear and practical outline to each of the rule changes with an incisive critique of the substance of the changes and the process by which they were promulgated. Continue reading "Anti-Plaintiff Bias in the New Federal Rules of Civil Procedure"

 
 

Contracting for Ethical Banking

Claire A. Hill & Richard W. Painter, Better Bankers, Better Banks (The University of Chicago Press, 2015).

Claire Hill and Richard Painter’s new book is the latest addition to their long line of work on the complex interaction between law, economics, culture, and individual behavior in the fast-moving world of investment banking. In this exceptionally well-written book, Hill & Painter target what they view as the fundamental problem with today’s Wall Street: the fact that bankers (a term that denotes mainly investment bankers and other securities industry professionals) are allowed to behave in socially harmful ways, without suffering meaningful personal consequences.  Alas, the authors don’t need to try very hard to convince us why this topic is both timely and important. What seems to be a never-ending string of scandals involving large financial institutions rigging prices, misleading customers, and helping clients cheat tax authorities and creditors provides plenty of evidence to that effect. If, after all these ugly revelations, you still trust bankers’ assurances that they are “doing God’s work,” you haven’t been paying attention.

In the book, Hill & Painter explain why, in recent decades, Wall Street bankers so consistently failed the public whose money they purport to manage. While not necessarily breaking new ground in this well-trotted area, the book does a great job of telling a rather impressively comprehensive story of how, in the course of the last few decades, investment bankers gradually abandoned their professional ethos in favor of purely self-serving pursuit of personal profit that is at the core of today’s culture of “irresponsible banking.” Hill & Painter trace the transformative changes in the business model of modern investment banking in the context of the increasingly competitive, globalized, computerized, and impersonal marketplace. One of the central themes here is the loss of bankers’ unlimited personal liability as a result of mass conversions of investment banking firms from partnerships to publicly traded corporations. Hill & Painter masterfully depict how this seemingly innocuous change reshaped the structure and culture of Wall Street from the 1970s on. To this broad-brush picture, they add nuance by dissecting some of the psychological factors driving individual investment bankers to disregard society’s interests and gamble with other people’s money. I found that part of the book particularly enjoyable and insightful. Continue reading "Contracting for Ethical Banking"

 
 

Thank You

Jotwell will be taking a short winter break. We’ll resume publication on Monday Jan 4, 2016, with our new five-times-per-week schedule during most of the academic year.

As we look back on 2015, we would like to thank our editors, and authors, and especially our readers for all of your interest and support. And I’d like to add a special thank-you to the contributors to our first, and probably annual, fund-raising appeal. We like you (lots):

Kenneth S. Abraham
Karen L. Abrams
Larry Alexander
Gerry W. Beyer
Francesca E. Bignami
Bennett Capers
Jessica Clarke
James Donovan
David F. Engstrom
James E. Fleming
Erik F. Gerding
Susan Grover
Woodrow N. Hartzog
Allison K. Hoffman
Chris J. Hoofnagle
William Hubbard
Julia Hughes
Isabel V. Hull
Lily Kahng
Anil Kalhan
Edward Kleinbard
Donald J. Kochan
Kathryn E. Kovacs
Anna Laakmann
Mark A. Lemley
Yvette J. Liebesman
Daniel Monk
Alexandra Natapoff
Douglas NeJaime
Michael Pardo
Nicole Porter
John F. Preis
Margaret J. Radin
William Sage
Joanna Schwartz
Peter M. Shane
Jacob S. Sherkow
David Sherwyn
Clyde Spillenger
Kevin M. Stack
Katherine Strandburg
Rebecca L. Tushnet
Jonathan T. Weinberg
David Zaring
Jonathan L. Zittrain

Please note that it’s never too late to help support Jotwell.

See you in the New Year!

 
 

A Dormant Commerce Clause Approach to Interstate Electricity Transmission

Alexandra B. Klass & Jim Rossi, Revitalizing Dormant Commerce Clause Review for Interstate Coordination, 100 Minn. L. Rev. 129 (2015).

In a 2013 report, the American Society of Civil Engineers awarded the U.S. electricity grid the grade “D+” noting that aging components and limited maintenance contribute to a growing number of brownouts and blackouts. Indeed, the 450,000 miles of high-voltage transmission lines that connect America’s nearly 7,000 power plants with some 6 million miles of lower-voltage distribution networks are based on a grid architecture that dates back to the 1880s. The average transformer in the national power grid is 42 years old and, hence, two years past its projected useful life. Every year power outages cost the economy billions of dollars in lost output and wages, spoiled inventory, production delays, among others. Meanwhile, successful mitigation of global climate change urges the transition to a low-carbon energy economy fueled by solar, wind, and other renewables. But the best renewable resources are often located far from population centers, such as wind resources in the upper Midwest and Plains states or solar resources in the desert southwest. As a result, the U.S. electricity grid requires both modernization and expansion calling for $1 trillion of investment to maintain even current levels of grid reliability. In Revitalizing Dormant Commerce Clause Review for Interstate Coordination, professors Alexandra B. Klass and Jim Rossi take stock of the regulatory impediments to upgrading and expanding the electricity grid, and propose a fresh take on dormant Commerce Clause review to incentivize greater interstate coordination on long-distance transmission projects.

Notwithstanding the vast macroeconomic benefits of an upgraded and expanded electric grid, transmission lines remain highly unpopular and subject to strong “not-in-my-backyard” reactions – at the individual and institutional level alike. Drawing on a series of precedents, professors Klass and Rossi illustrate how states use their virtually exclusive authority over electric transmission line siting and eminent domain to block and, ultimately, defeat interstate transmission projects. “In the context of multi-jurisdictional energy infrastructure projects, a single state or local holdout can keep an infrastructure project from going forward.” Such regulatory holdouts are especially popular among “pass-through” states that often struggle to identify benefits to local constituents from transmission lines that originate and end out-of-state. In the words of Klass and Rossi, “interest group dynamic[s] along with many existing siting and eminent domain laws enable, and may even encourage, these kinds of state and local government holdouts.” Continue reading "A Dormant Commerce Clause Approach to Interstate Electricity Transmission"

 
 

What Happens if We Call Discrimination a Tort?

Sandra Sperino, “Let’s Pretend Discrimination is a Tort,” 75 Ohio St. L.J. 1107 (2014).

Sandra Sperino’s Let’s Pretend Discrimination is a Tort, 75 Ohio St. L.J. 1107 (2014), argues that if the United States Supreme Court is really serious about treating Title VII and other federal anti-discrimination laws as nothing more than extensions of tort law, then the current Supreme Court’s anti-plaintiff approach is insupportable. Sperino does not hide her personal disapproval of the current trend to “tortify” federal anti-discrimination law (especially Title VII), but she recognizes that the fight against discrimination may have to be fought “through any means necessary” (to quote Malcolm X, not Sperino). So her article is a bit legal jujitsu – to take the Supreme Court’s most favored tool to weaken Title VII, and to use it to make federal anti-discrimination law friendlier to plaintiffs than it has ever been.

In this essay I review the three attributes of common law tort that Sperino finds especially useful for her project of expanding the reach of federal anti-discrimination law. I then raise questions about Sperino’s assumption about common law tort. The features found in tort law that Sperino finds so congenial are not universal features of common law tort, but only found in those parts of tort that are concerned with one’s right to bodily integrity and security in land. Does it therefore make sense to argue (as Sperino does) – even for rhetorical purposes – that the interests Congress chose to protect in federal anti-discrimination law are akin to bodily integrity and security interests, or, rather (as I argue), more like other interests protected quite differently in tort, such as economic interests and interests in emotional tranquilty? Continue reading "What Happens if We Call Discrimination a Tort?"

 
 

Rulemaking’s Puzzles

Connor Raso, Agency Avoidance of Rulemaking Procedures, 67 Admin. L. Rev. 1 (2015), available at SSRN.

It is puzzling. Administrative agencies continue to produce thousands of rules each year in the face of an accumulation of procedural requirements that administrative law scholars say have ossified rulemaking and even led some agencies to retreat from rulemaking altogether.

How can this be? How can federal regulatory output be “rising steadily for decades” notwithstanding procedures that have created a supposedly “confusing labyrinth through which agencies seeking to adopt rules must grope”? As someone who has long been puzzled by the seeming contradiction between expectations and reality, I liked reading Connor Raso’s recent article, Agency Avoidance of Rulemaking Procedures, because it offers a persuasive, even if partial, answer to a core conundrum about rulemaking, along with thoughtfully-analyzed, supportive empirical evidence. Continue reading "Rulemaking’s Puzzles"

 
 

Can We Talk? Wills, Trusts and Estates Critical Issues that Are Ripe for Discussion

Bridget J. Crawford and Anthony C. Infanti, A Critical Research Agenda for Wills, Trusts, and Estates, 49 Real Prop. Tr. & Est. L.J. 317 (2014), available at SSRN.

A Critical Research Agenda for Wills, Trusts, and Estates by Professors Bridget J. Crawford and Anthony C. Infanti is a ”must read” for wills, trusts, and estates practitioners and scholars. The authors highlight key contributions in the category they loosely refer as “critical trusts and estates scholarship” and challenge each of us to add our voices to these important issues. Some of the works that Crawford and Infanti highlight were written by trusts and estates professors, others were penned by professors who teach in other areas of the law, and some are even authored by non-lawyers.

Crawford and Infanti remind us that issues of race, gender, sexual orientation, socio-economic class, and disability should not be relegated to just a passing reference in scholarly works. As both scholars and practitioners, we need to examine how and why the law has developed the way that it has, and how historically disenfranchised groups have been affected. The variety of works highlighted by Crawford and Infanti reminds us that even in the “money” area of law—“tax and wills,” there are critical issues that need to be discussed inside and outside of the legal academy. Continue reading "Can We Talk? Wills, Trusts and Estates Critical Issues that Are Ripe for Discussion"

 
 

Exploring the “How” of Tax Legislation

Much of tax scholarship—past and present—focuses on the “what” of taxation: the substantive content of the tax laws, and what that content is or ought to be. As Leigh Osofsky recently observed in a delightful series of posts on PrawfsBlawg (see here, here, here, here, and here), a growing trend in tax scholarship considers tax administration, which one might describe as the “how” of taxation, or at least part of it. A separate, but related, strain of tax scholarship concerns the “how” of taxation from a different perspective, that of the tax legislative process. Two recent articles published last year offer interesting insights into this aspect of taxation: Michael Doran’s Tax Legislation in the Contemporary U.S. Congress, and Rebecca Kysar’s The ‘Shell Bill’ Game: Avoidance and the Origination Clause.

Doran styles his article as an update of our understanding of the tax legislative process. He describes the old process as a tug-of-war between “tax instrumentalism,” with Congress “us[ing] the Internal Revenue Code to pursue nontax economic and social objectives” and cluttering up the Code with “particularistic provisions setting out narrow rules and exceptions for specific constituents and interest groups,” and “tax reform,” with Congress repealing those instrumentalist provisions. Doran posits that, since the late 1980s, gridlock has become the norm. (Pp. 555-556.) At the same time, he suggests that “major items of tax legislation” adopted during that period are “strikingly ‘clean’—that is, nonparticularistic.” To support this proposition, Doran looks at 25 years of “major tax legislation,” listed in a handy table. He documents a decline in the length of tax legislation and draws from that admittedly “very rough proxy”—in addition to his own impressions—that contemporary tax legislation is simply less particularistic than in the past. Continue reading "Exploring the “How” of Tax Legislation"

 
 

Against the Backdrop of Dignity and Equality, The Non-Absoluteness of Property Rights

AJ van der Walt, The Modest Systemic Status of Property Rights, 1 J. L. Prop. & Soc’y 15 (2014).

We must stop imagining that property is the saviour of the legal system, the knight on the white steed, or the guardian of every other right. That was the lesson Andre van der Walt, South African Research Chair in Property Law at Stellenbosch University, taught the assembled audience when he delivered the Keynote Address at the 2014 Annual Conference of the Association of Law, Property and Society. As Professor van der Walt writes in the landmark article based on that memorable address: “I prefer to see property as a gaggle of cleaners who move in after everyone has left, brandishing buckets and mops, cleaning up the property debris once the real work of maintaining the democratic legal system has been completed.” (Pp. 105-106.) In this article, van der Walt reflects on the systemic status of property rights within a wide frame of constitutional, “non-property” rights. Moving from normative theory to doctrinal analyses of the case law of South African courts implementing the Constitution of 1996, as well as examples from the United States, Canada, the United Kingdom, and Germany, the article explores how property rights are, and should be, balanced against non-property rights, including rights to life, human dignity, and equality.

This paper comes at a fascinating moment for property theory, as the politics of property law—particularly in “advanced” democracies like the United States and the United Kingdom—are being tested against a backdrop of rising socio-economic inequality, dramatically accelerated following the global financial crisis of 2008 and the “austerity” politics that followed. As the claims that markets left to their own devices are efficient and stable—or that property is an effective guardian of other rights (Pp. 32-42)—have been challenged, the landscape of unequal opportunity has been exposed, reverberating through property scholarship to spark a renewed interest in property law’s methodologies and discursive traditions across the global property community. Van der Walt explores these debates in the first section of his paper. Continue reading "Against the Backdrop of Dignity and Equality, The Non-Absoluteness of Property Rights"