Apr 5, 2023 Emad AtiqJurisprudence
In criminal cases, the prosecution bears the burden of proving the defendant’s guilt “beyond a reasonable doubt” (“BRD”). But it is not entirely clear what this standard requires. Courts routinely strike down attempts by prosecutors and judges to define (say, in terms of degrees of confidence or the probability of guilt) what counts as reasonable doubt. Moreover, pure statistical evidence is often deemed insufficient for proof beyond a reasonable doubt, even when such evidence suggests an extremely high probability that the defendant is guilty. The BRD standard’s resistance to definition or quantification invites explanation.
Sarah Moss offers an intriguing account: proof beyond a reasonable doubt requires knowledge, and knowledge is similarly resistant to definition and comes apart from probable truth. Moss’s analysis touches on several aspects of legal proof in both criminal and civil trials, but I’ll focus my comments on two suggestions that struck me as especially promising. Continue reading "Standards of Proof, Statistical Evidence, and the Stakes"
Apr 5, 2023 Shubha GhoshInternational & Comparative Law
Many nation states have grappled with the questions raised by the use of artificial intelligence (AI) in administrative decision-making, law enforcement and criminal prosecution. National courts have addressed the use of data analytics for criminal sentencing. National legislatures have debated regulations limiting the use of machine learning for surveillance and profiling. But what role does international law play in the governance of existing and emerging artificial intelligence technologies? As of this writing, there are no international treaties providing guidance or imposing obligations on signatories in shaping the regulation of artificial intelligence. National law is the sole locus for containing artificial intelligence-based technologies.
Two essays published in the American Journal of International Law Unbound contribute to the neglected area of international law and artificial intelligence. Both look to international human rights law as the source of protections for liberty and equality in the encroaching technologies of machine learning, data analytics, and other software aided tools in the domains of law. Each however takes a different approach to integrating technology with traditional legal approaches in reining in unchecked uses of artificial intelligence. One author is skeptical of human rights law and its potentially luddite tendencies. The other author advocates for democratic values, as embodied in international human rights law, as providing the check for the deployment of new technologies. Because these two essays fill a longstanding gap in the scholarly literature on artificial intelligence and international law through contrasting yet complementary approaches, these are important works that I like lots. Continue reading "Artificial Intelligence, Human Rights, & Legal Judgment"
Apr 4, 2023 Lisa Larrimore OuelletteIntellectual Property Law
Nicholas A. Pairolero, Andrew A. Toole, Peter-Anthony Pappas, Charles A.W. deGrazia & Mike H.M. Teodorescu,
Closing the Gender Gap in Patenting: Evidence from a Randomized Control Trial at the USPTO (Nov. 1, 2022), available at
SSRN.
Inequality among innovators is a substantial social problem in terms of both equity and economic growth. For instance, Raj Chetty’s Opportunity Insights group has documented that if women, racial minorities, and low-income Americans invented at the same rate as high-income white men, then the rate of U.S. patenting would quadruple. They also note the glacial progress toward closing these gaps, such as the 118 years it will take to reach gender parity at the current rate.
These inequalities affect not only the rate of innovation, but also what kind of innovations are created—for example, all-female inventor teams are more likely to focus on women’s health. Unfortunately, the evidence base for policy interventions to reduce these innovation gaps remains depressingly shallow. Most policies are tested without a rigorous evaluation strategy or control group, making it difficult to determine whether they had any effect.
A new paper from the U.S. Patent and Trademark Office (USPTO), Closing the Gender Gap in Patenting: Evidence from a Randomized Control Trial at the USPTO, is a remarkable addition to this literature. For the first time ever, the USPTO has tested a policy intervention as a randomized experiment, allowing a credible evaluation of its effectiveness. Changes in patent policy have rarely been tested with any element of randomization and have never been tested previously by the USPTO itself. Even if this experiment had yielded null results, the effort would still have been laudable as a model for how agencies can assess the impact of a new policy and publicly disclose the results. But the experiment also documents that the intervention—a new program to help patent applicants without legal representation—led to a sizeable decrease in the gender patenting gap. Continue reading "Policy Experimentation to Address Inequality Among Innovators"
Apr 3, 2023 Emma CaveHealth Law
The International Committee of Medical Journal Editors (ICMJE) has set out guidance on the Conduct, Reporting, Editing and Publication of Scholarly Work in Medical Journals since 1978. The 2022 version recognises that “authorship confers credit and has important academic, social and financial implications” as well as implying “responsibility and accountability for published work.”
In Misuse of Co-authorship in Medical PhD Theses in Scandinavia: A Questionnaire Survey, published in the Journal of Academic Ethics, Gert Helgesson, Søren Holm, Lone Bredahl, Bjørn Hofmann and Niklas Juth survey the experiences and attitudes to authorship in Ph.D. theses in Denmark, Norway and Sweden. The article makes difficult but important reading. It points to a high level of acceptance and support for the ICMJE recommendations but a perpetuation of poor authorship practices. Continue reading "Ethical Co-Authorship"
Mar 31, 2023 James E. PfanderCourts Law
We have two reasons to welcome Heather Elliott’s paper on the Supreme Court’s original jurisdiction in state-party cases. First, she diagnoses and proposes a cure for what she describes as discrimination in the administration of the Court’s original docket. Second, she presents this paper as the opening salvo in an extended engagement with the Court’s original jurisdiction. Students of federal procedure and jurisdiction should attend to both developments.
As for the problem, the Supreme Court exercises discretion in deciding whether to allow one state to sue another state in the Court’s original jurisdiction. For example, the Court refused to allow pro-Trump Texas to docket an original suit to challenge the 2020 election results in pro-Biden states that certified electors in accordance with their states’ popular vote. Many welcomed the rejection of the Texas case, but Elliott invites us to consider the basis for rejection. Instead of allowing Texas to docket the case and then rejecting it for want of standing, the Court declined to allow docketing. Two Justices wrote separately to question whether the Court can properly exercise discretion in deciding when to allow the states to invoke its original jurisdiction, a jurisdiction conferred in Article III and often characterized as mandatory and self-executing. Continue reading "Inter-State Litigation on the Supreme Court’s Original Docket"
Mar 30, 2023 Mark KendeConstitutional Law
Alan Z. Rozenshtein & Jed Handelsman Shugerman,
January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution, 37
Const. Comment. (Forthcoming 2023), Jan. 21, 2023 draft available at
SSRN.
There can be no doubt that January 6, 2021, was one of the worst days in United States history. Outgoing President Donald Trump held a rally with supporters near the Capitol, urged them to keep “fighting” (the adverse election results and more), and sent them to illegally storm the barriers of the U.S. Congress. A Trump supporter lost her life, and numerous Capitol police and security officials were injured trying to defend the site. Many Trump supporters carried weapons but, miraculously, nobody in Congress was injured. Among the attackers were members of right wing extremist groups like the Proud Boys, who Trump encouraged.
One of the key questions in this tragic episode is whether the President himself committed a crime by engaging in inflammatory speech. The January 6 Congressional Committee has urged the U.S. Department of Justice to bring charges against Trump. But one legal defense that President Trump will employ is that the U.S. Constitution’s First Amendment protects his speech. Law professors Alan Z. Rozenshtein and Jed Shugerman answer the question of whether this defense should prevail in their impressive forthcoming article, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution. Continue reading "Former President Trump: Inflammatory Speaker or Criminal"
Mar 29, 2023 Ezra YoungEquality
Before I stepped behind the podium for the first time in Fall 2021, I made a conscious decision that I would not hide that I pray from my students. My particular combination of anxiety and devoutness more often than not means that I pray for the strength, wisdom, clarity, and patience to reach each and every one of my students before I dive into any given day’s materials. As a cradle Catholic, ending a private prayer even in public with the sign of the cross is a highly visible reflex. That first time I prayed in front of my class, I hesitated. Not because I’m ashamed of my faith. But because I worried what my students might think I was praying for, given the significant and enduring problems with American Catholicism and the institutional Church.
In time, as I’ve gotten my sea legs as a law professor, many of the things about the job have become easier. But it is only quite recently that I’ve seen fully that my lifelong commitment to a faith and Church that promises everything but regularly falls woefully short is compatible with teaching Constitutional law day-in and day-out. Some days, the only thing that keeps me going in a broken and flawed Church and country is faith. Faith that, despite all the failures, self-inflicted injuries, horrific and at-times seemingly unspeakable truths, redemption and salvation is just around the corner.
This is precisely why Christians put so much emphasis upon Jesus’ liberatory teaching in John 8:32, “You will know the truth, and the truth will set you free.” Truth and freedom are inextricably intertwined. The same can be said about the United States. As Frederick Douglass so astutely observed in his speech, What To the Slave Is the Fourth of July, true American liberation was impossible without reckoning with Black slavery. To wit, he urged “The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.”
This brings me to Professor Anthony Paul Farley’s latest article, Critical Race Theory & the Gospels, which hits home for me for at least one obvious reason as a devout Catholic. Farley’s stunning prose beautifully illustrates and elevates the parallels between how enslaved Black folks who were Christian came to understand slavery, liberation, and emancipation as an ordeal that mapped directly onto the suffering, sacrifice, death, and resurrection of Christ. Farley’s at-times masterfully lyrical writing is, to be sure, reason enough to read this article and share it widely. As one example, “Slavery is death, death only, and that continually. This death, far from being an escape ‘devoutly to be wish’d’, is a perpetual calamity…Slavery is crucifixion. Death, calamitous death, is forever” (P. 724). And yet, that is not why I picked this piece to feature in this Jot. Continue reading "CRT Tells It on the Mountain"
Mar 28, 2023 Maya ManianHealth Law
David S. Cohen, Greer Donley & Rachel Rebouché,
Abortion Pills, 76
Stan. L. Rev. __ (forthcoming 2024), Mar. 15, 2023 draft available at
SSRN.
In countries around the globe that have long criminalized abortion, women and pregnant people have been using abortion pills for decades to end their pregnancies. Public health research has shown that abortion pills are safe and effective for terminating a pregnancy, even when people access pills and self-manage abortions outside the formal health care system. Since the decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and permitted states to broadly restrict access to abortion care at any stage of pregnancy, abortion foes and abortion advocates have been engaged in a pitched battle over access to abortion pills. The majority of abortions in America are now managed through pills rather than a procedure. Given this reality, the legal battles over abortion pills could determine who has access to abortion care on the ground not only in red states, but even in blue states where many people presume (incorrectly) that their access to comprehensive reproductive health care is safe.
In their aptly titled draft article, Abortion Pills, David Cohen, Greer Donley, and Rachel Rebouché tackle the complicated legal terrain on which the abortion pills war is currently being waged. The authors argue that the battles over abortion pills will transform public contestation about government regulation of abortion going forward. The article provides a much-needed overview for scholars and advocates struggling to keep up with the barrage of litigation and legislation governing abortion pills post-Dobbs. Even more importantly, the authors crystallize the consequences of these legal battles for access to care nationwide. As with this trio’s previous article, The New Abortion Battleground, which was cited by the dissenting opinion in Dobbs and predicted much of the legal fallout from that decision, Abortion Pills is an important contribution to the rapidly growing literature on the impact of overturning Roe. Continue reading "A New War on Drugs in the Post-Roe World"
Mar 27, 2023 Robert RosenCorporate Law
Jillian Grennan & Kai Li,
Corporate Culture: A Review and Directions for Future Research in Handbook of Financial Decision Making (Gilles Hilary & David McLean eds., forthcoming 2023), April 28, 2022 draft available at
SSRN.
In the 2022 Annual Review of Financial Economics, Jillian Grennan, with lead author Gary B. Gorton and Alexander K. Stentefis, document studies by economists that use “corporate culture” to explain M & A choices and consequences, individual and business risk-taking, as well as corporate malfeasance. Such research has been propelled by new data sets and methods. For example, employee grievances and networks are now revealed on the web and natural language processing now translates texts into cultural elements. Work in this mode also emerges because much remains to be explained about corporate decisions after the usual analysis under the property rights and agency cost paradigms. Grennan and her co-authors propose corporate culture as a new “theoretical paradigm” for corporate finance research.
The problem with this paradigm, as the authors note is that “culture” is an “omnibus term.” Unpacked, it includes “values, norms, conventions, shared beliefs, customs, traditions, symbols, rituals, knowledge, identity, ideologies, identities, and shared mental models.” Corporate culture includes everything from employee perceptions of managers’ ethics (positively associated with Tobin’s Q) to stock options for rank-and-file employees (positively correlated with financial misreporting). Mathematical representations of corporate culture are few in number. We have measurements of company reputations, homogeneous beliefs across the company, and managerial preferences. But these tell us little. Researchers have shown us that “employees’ firsthand impressions of the manager’s instructions, along with their secondhand interpretations from communicating with each other about the manager’s instructions, together shift the observed culture away from the manager’s intended one.” Furthermore, there also is “within-person cultural diversity”–individuals believe contradictory things. Consequently, despite reviewing research that finds correlations between “cultural” changes and financial decisions, the authors call for “More theoretical work on corporate culture.”
Fortunately, Jillian Grennan takes steps to developing such a theory in her book chapter with Kai Lin, Corporate Culture: A Review and Directions for Future Research. They begin by noting that in the 1950’s, anthropologists assembled a list of 164 different definitions of societal culture. They draw on sociological theory to describe culture as part of the informal institutional structure of firms. They understand that culture has two faces: meaning-creating and behavioral patterning. The expectations employees have about “how they need to behave to fit in and succeed in their firm” are part of corporate culture. Changes in such expectations are then studied to understand the dynamics of corporate culture. Continue reading "Corporate Culture is Complicated"
Mar 24, 2023 Nancy KimContracts
Tim Samples, Katherine Ireland, and Caroline Kraczon,
TL;DR: The Law and Linguistics of Social Platform Terms-of-Use, __
Berkeley Tech. L. J. __ (forthcoming 2023), available at
SSRN.
Much has been written about ubiquitous online terms of service or terms of use (TOUs). But, as Samples, et. al. write in their forthcoming article, TL;DR: The Law and Linguistics of Social Platform Terms-of-Use, TOUs are poorly understood. Their interdisciplinary study examines the “law and linguistics” of 196 agreements for 75 smartphone-based social platforms. Most other studies of TOUs have a law and economics vantage point, but their study combines legal analysis with “natural language processing, data science, and corpus linguistics.” (P.5.) Corpus linguistics is the “scientific study of naturally-occurring language in the aggregate, often in large datasets, so-called corpa.” (P. 4.) All this means that their study focuses on what matters when thinking about consumer contracts: the language and readability of contracts.
The article begins with a summary of what most contract scholars know by now (nobody reads adhesive form contracts), and then proceeds with an overview of the law in this area. The authors note that social platform TOUs have characteristics that make them particularly problematic. First, they operate on an unprecedented scale. The largest platforms, such as Facebook, affect billions of users. Continue reading "Click To Agree That Terms of Use are Incomprehensible"
