Every day, corporations are connecting the dots about our personal behaviorsilently scrutinizing clues left behind by our work habits and Internet use. The data compiled and portraits created are incredibly detailed, to the point of being invasive. But who connects the dots about what firms are doing with this information? The Black Box Society argues that we all need to be able to do soand to set limits on how big data affects our lives. Hidden algorithms can make (or ruin) reputations, decide the destiny of entrepreneurs, or even devastate an entire economy. Shrouded in secrecy and complexity, decisions at major Silicon Valley and Wall Street firms were long assumed to be neutral and technical. But leaks, whistleblowers, and legal disputes have shed new light on automated judgment. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only scratched the surface of this troubling behavior. Frank Pasquale exposes how powerful interests abuse secrecy for profit and explains ways to rein them in. Demanding transparency is only the first step. An intelligible society would assure that key decisions of its most important firms are fair, nondiscriminatory, and open to criticism. Silicon Valley and Wall Street need to accept as much accountability as they impose on others.

The Black Box Society: The Secret Algorithms That Control Money and Information

American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

Employment by policing agencies equals or exceeds public police employment in many countries. Reigning conceptions of relations between public police and private policing have changed markedly. A state-centered view of police functions disparaged "private armies" and saw order maintenance as a quintessential function of government. In recent decades, a laissez-faire view has emerged that celebrates "private-public partnerships" and sees private policing as an industry providing both a service and a public benefit. Social theorists question the wisdom and the likely future directions of the privatization of order maintenance.

The Relation between Public and Private Policing

Recent studies have examined racial disparities in stop-and-frisk, a widely employed but controversial policing tactic. The statistical evidence, however, has been limited and contradictory. We investigate by analyzing three million stops in New York City over five years, focusing on cases where officers suspected the stopped individual of criminal possession of a weapon (CPW). For each CPW stop, we estimate the ex ante probability that the detained suspect has a weapon. We find that in more than 40% of cases, the likelihood of finding a weapon (typically a knife) was less than 1%, raising concerns that the legal requirement of “reasonable suspicion” was often not met. We further find that blacks and Hispanics were disproportionately stopped in these low hit rate contexts, a phenomenon that we trace to two factors: (1) lower thresholds for stopping individuals — regardless of race — in high-crime, predominately minority areas, particularly public housing; and (2) lower thresholds for stopping minorities relative to similarly situated whites. Finally, we demonstrate that by conducting only the 6% of stops that are statistically most likely to result in weapons seizure, one can both recover the majority of weapons and mitigate racial disparities in who is stopped. We show that this statistically informed stopping strategy can be approximated by simple, easily implemented heuristics with little loss in efficiency.

/pdf/precinct-or-prejudice-understanding-racial-disparities-in-4vzdzeydgi.pdf

Precinct or Prejudice? Understanding Racial Disparities in New York City's Stop-and-Frisk Policy

Untangling race and class effects on juvenile arrests

The decision of the United States Supreme Court in City of Chicago v. Morales, which invalidating Chicago's gang-loitering ordinance, provides a road map for future public order laws that can address inner-city crime. This article makes the argument for public order laws as an anti-gang initiative that stops short of an approach dependent on massive incarceration, and defends such laws against an attack on grounds of racial fairness. Relying on the work of leading urban sociologists, the article argues that gang crime powerfully attracts inner city (and disproportionately minority) youth, and that any strategy for crime reduction in the inner city must therefore address its attractions. The article then argues that public order laws can disrupt patterns of drug trafficking that are the lifeblood of inner city gangs, without reliance on a regime of mass incarceration that will have far more disruptive effects on minority youth.

Gang Loitering and Race

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because "his expressions were made pursuant to his duties." The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself. This article rejects the scholarly consensus on Garcetti. The critics' claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney's office to the public; therefore his speech could not have advanced the public's understanding and evaluation of the district attorney's performance. Moreover, although the Court's opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment's commitment to free speech as a means of achieving political accountability - an understanding with powerful roots in First Amendment jurisprudence. The Court's opinion contains a sketch - concededly partial and somewhat obscure - of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions. This article endeavors to fill out the sketch. The article begins with an exploration of Garcetti. Part I demonstrates that Garcetti essentially abandons the Court's prior approach to the First Amendment rights of public employees by embracing a new inquiry that focuses on an identification of the scope of legitimate managerial prerogatives. Managerial prerogative, in turn, ensures that political officials have effective control over the functioning of public offices - and therefore are fairly held politically accountable for the operations of those offices. Part I concludes with a consideration of the future of public employee speech litigation in light of the emerging law of managerial prerogative. Part II considers the implications of this new law of managerial prerogative in another employment-related context - laws forbidding discriminatory harassment. There has been a powerful current of scholarly argument that the First Amendment places substantial limitations on the power of government to forbid sexually or racially harassing speech. At least four Members of the United States Supreme Court have expressed significant support for this view. Part II demonstrates that under the concept of managerial prerogative embraced by Garcetti, governmental power to forbid harassing speech in the workplace is largely unconstrained by the First Amendment. In Part III, the article places Garcetti within the context of a broader trend in recent First Amendment jurisprudence. Part III sketches the emerging doctrinal framework of this new First Amendment law of managerial prerogative and then, to illustrate the character of emerging doctrine, applies this framework to institutions of higher education and the concept of academic freedom - an issue noted but set aside in Garcetti. Part III argues that the emerging First Amendment law of managerial prerogative permits public universities to regulate academic speech in a manner that is consistent with scholarly norms as a means of achieving legitimate institutional objectives.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1273745_code517200.pdf?abstractid=1273745&mirid=1&type=2

The Emerging First Amendment Law of Managerial Prerogative

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Perhaps no member of the legal academy in America is more controversial than John Yoo. For his role in producing legal opinions authorizing what is thought by many to be abusive treatment of detainees as part of the Bush Administration’s “Global War on Terror,” some have called for him to be subjected to professional discipline, others have called for his criminal prosecution. This paper raises a different question: whether John Yoo – and his like – ought to be teaching law. The paper also asks whether the prevailing view in the legal academy today that champions the theoretician over those versed in professional norms bears some responsibility for the problematic legal work performed by Professor Yoo during his tenure in the United States Department of Justice's Office of Legal Counsel. John Yoo provides something of a case study in the problems in legal education today. As a scholar, Professor Yoo is considered something of a superstar; he has been described as “a leading scholar on the relationship of international law to constitutional commands.” Even so; he teaches at a law school – an entity engaged in preprofessional education. Prior to tenure in the Bush Administration, Professor Yoo had little experience in the practice of the law; as we will see, this makes him typical of the current generation of legal educators. Professor Yoo also represents something of a natural experiment of a type that we rarely see – the unusual case of a leading legal scholar with the limited professional experience typical of his generation who leaves the academy and practices law on a regular basis. When Professor Yoo actually practiced law, he made quite a hash of things. It is remarkable that the legal academy could regard as something of a superstar an individual who proves unable to practice – at an acceptable level – the profession for which he is training his students. Professor Yoo’s case is unusual in that he took the rare step of leaving the academic cocoon and venturing into a position where his professional deficiencies were likely to be exposed, but there is reason to believe that his lack of professional judgment is common among the scholars of his generation. All of this suggests that there is something deeply wrong with the state of legal education today. This article begins by illustrating the deficiencies in the legal work of Professor Yoo during his service in the Department of Justice. It then explain why those deficiencies cast grave doubt on Professor Yoo’s qualifications to teach law. The article concludes by observing that Professor Yoo's case illustrates the problems that inheres with the legal academy's decision to champion the theoretician as teacher instead of those who have developed the kind of professional judgment so critical to success in the practice of law.

Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us about Who Should Be Teaching Law

Fourth Amendment jurisprudence is frequently accused of doctrinal incoherence. A primary reason is the persistence of two competing conceptions of “unreasonable” search and seizure. The first is libertarian in character; it understands the Fourth Amendment’s command of reasonableness as establishing a constitutional boundary on investigative powers. On this view, the prohibition on unreasonable search and seizure keeps society free by limiting the government’s investigative reach. The second conception understands the Fourth Amendment's prohibition as freedom against unjustified government intrusion. This conception of reasonableness is essentially pragmatic in character, balancing liberty and law-enforcement interests.This article interrogates these competing conceptions by focusing whether a “binary search” should be regarded as unreasonable under the Fourth Amendment. Binary search techniques reveal no more than whether there is probable cause to believe that an otherwise concealed area contains contraband or other evidence of criminality. In a binary search, the competing conceptions of the Fourth Amendment point toward different outcomes. On the libertarian conception, the Fourth Amendment would regard as unreasonable an effectively unlimited power to scrutinize otherwise private space through binary techniques. A libertarian Fourth Amendment demands limitations on binary searches. On the pragmatic conception, a binary search that discloses nothing more than the probable presence of contraband is supported by powerful law-enforcement interests, and is unlikely to threaten any legitimate liberty interest of the innocent. Therefore, it could readily be regarded as constitutionally reasonable even if unsupported by individualized suspicion of wrongdoing. As technology advances, the binary search will become increasingly important, as increasingly sophisticated and focused technologies are developed that can precisely target the presence of contraband or other evidence of criminality in both real and cyberspace.In last Term's decision in Florida v. Jardines, the Court considered a type of binary search – the use of a trained narcotics-detection dog. In Jardines, a bare majority embraced the libertarian conception. Writing that “[a]t the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,” the Court held that “[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings is a search within the meaning of the Fourth Amendment.” Jardines’s libertarianism, however, is stunted and incomplete. The Court’s holding can be readily circumvented by investigative techniques that stop short of a physical intrusion, and might even leave binary searches unrestricted if they are ultimately deemed constitutionally reasonable, even if considered a “search.” Indeed, given our current understanding of the scope of governmental regulatory power, the binary search demonstrates the absence of a coherent Fourth Amendment libertarianism. Searches with no potential to compromise the interests of the innocent – such as a binary search – are constitutionally unobjectionable in a regime that recognizes no legitimate interest in even the entirely “private” possession of items that the government may deem unlawful to possess. Thus, the persistence of the libertarian conception comes with the inevitable cost of a loss of conceptual coherence. Moving beyond the particulars of the binary-search debate, this article concludes that although the pragmatic conception leaves plenty of room for debate over the proper scope of investigative authority, only the pragmatic conception has any real power to rationalize Fourth Amendment jurisprudence, especially as it faces unparalleled challenges as a consequence of technological advance.

Lawrence Rosenthal

Papers

Gang Loitering and Race

The Emerging First Amendment Law of Managerial Prerogative

Gang Loitering and Race

Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us about Who Should Be Teaching Law

Binary Searches and the Central Meaning of the Fourth Amendment