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.

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

Untangling race and class effects on juvenile arrests

advocacy of illegality. The Act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it.” (citations omitted)). Beyond 72 INDIANA LAW JOURNAL [Vol. 86:1 The First Amendment investigation reflects the same point. A First Amendment investigation is itself a form of content-based governmental action when the triggering event for an investigation is the content of expression—such as a speaker’s advocacy of violence, albeit without a sufficient threat of imminent violence to render the advocacy unprotected. Yet, as we have seen, in cases such as Branzburg in which the Court has confronted First Amendment investigations, it has refused to impose strict scrutiny. These cases treat with investigations, not prohibitions, so the inhibitory effects on speech do not rise to the level of a prohibition, while the justification for recognizing a broad investigative power is compelling. Thus, pragmatic balancing explains why some government actions based on the content of speech, which may well disadvantage identifiable speakers or viewpoints, nevertheless do not trigger strict scrutiny. Something similar can be observed in the Court’s campaign finance jurisprudence—another type of content-based regulation. As we have seen, the Court has treated as illegitimate a governmental interest in regulating political speech as a means of equalizing influence in the political process. Although this has led the Court to impose strict scrutiny on limitations on political speech, when it comes to limitations on contributions to political candidates, the Court has taken a different view, even though such regulation is no less content-based than an absolute prohibition on certain types of political expenditures. The Court has observed that the inhibition on speech is not so great when the government merely restricts the ability to give money to others rather than the ability to articulate one’s own views and that the threat of corruption is greater for contributions than independent expenditures, and on that basis has applied a balancing test to contribution limitations that involves something less than strict scrutiny. As we also have seen, the Court has taken a similar approach to campaign-finance that, as we have seen, the Court has held that Congress may proscribe speech that offers material support to a foreign terrorist organization without requiring an imminent threat of violence or other unlawful conduct. Conversely, the requirement of an imminent threat of unlawful activity absent a properly supported finding of specific intent to produce unlawful activity reflects an effort to balance the likely chilling effects of a regime that afforded lawenforcement officials or courts substantial leeway to determine when speech is unacceptably likely to provoke violence or illegality: Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the “profound national commitment” that “debate on public issues should be uninhibited, robust, and wide-open.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1963)). For additional discussion of the potential chilling effects of criminalizing speech based on the speaker’s purpose, see Eugene Volokh, CrimeFacilitating Speech, 57 STAN. L. REV. 1095, 1179–90 (2005). 347. See supra text accompanying note 335. 348. See Randall v. Sorrell, 548 U.S. 230, 246–49 (2006) (plurality opinion); McConnell v. FEC, 540 U.S. 93, 134–42 (2003), overruled in part on other grounds by Citizens United v. FEC, 130 S. Ct. 876 (2010); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 386–89 (2000); Buckley v. Valeo, 424 U.S. 1, 23–38 (1976) (per curiam). 2011] FIRST AMENDMENT INVESTIGATIONS 73 disclosure requirements, upholding them under a balancing test that endeavors to assess the degree to which they may exert a chilling effect disproportionate to their justification. The rationale for this relatively lenient treatment is that disclosure requirements are thought to impose a less serious burden on liberty interests: “[D]isclosure requirements may burden the ability to speak, but they . . . do not prevent anyone from speaking.” This is yet another example of a challenged government restriction that creates an inhibition on speech less potent than an outright prohibition; and as a consequence the Court is more willing to engage in something approaching ad hoc balancing. In short, the structure of judicial review of content-based regulation reflects a pragmatic balance. Given the cost to the marketplace of ideas of viewpoint-based regulation of expression—whether an intentional effort at censorship or an unintended result of content regulation likely to impose differential burdens on some speakers or viewpoints—strict scrutiny tilts the balance decisively toward free speech by requiring a showing that the challenged regulation is essential to an unusually important government interest. Still, strict scrutiny reflects a balancing process—it does not ignore the government’s interests, but instead requires an especially clear showing before that interest will trump free-speech interests. When governmental action reflects a risk of censorial motive but stops short of an outright prohibition, however, even content-based governmental action does not trigger strict scrutiny. C. The Role of Ad Hoc Balancing in First Amendment Doctrine The rather well-articulated structure of balancing in First Amendment doctrine weakens the objections to balancing. As we have seen, large swaths of First Amendment doctrine sharply circumscribe judicial discretion by developing a marketplace metric within which balancing occurs in a structured fashion. To the preceding account of First Amendment doctrine as reflecting structured balancing, one might object that the structure of First Amendment doctrine is no less consistent with the pragmatic than the purposivist account. As we have seen, purposivists explain the heightened scrutiny afforded content-based regulation as reflecting the greater risk that such regulation reflects official hostility to disfavored speech or speakers. Thus, the purposivist account likely is at least as satisfactory an explanation for the tiers of scrutiny found in First Amendment doctrine as the account offered above. Yet, the orderly looking spectrum of regulation described by the purposivists cannot accommodate the totality of First Amendment doctrine. The formal standards of scrutiny found in First Amendment doctrine involve 349. See supra text accompanying note 238. The applicable “standard [of scrutiny] ‘requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest.’ To withstand this scrutiny, ‘the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.’” Doe v. Reed, 130 S. Ct. 2811, 2818 (2010) (quoting Citizens United, 130 S. Ct. at 914; Davis v. FEC, 128 S. Ct. 2759, 2774 (2008) (citations and internal quotations omitted)). 350. Doe, 130 S. Ct. at 2818 (quoting Citizens United, 130 S. Ct. at 914) (alterations in original). 351. See supra text accompanying notes 4–11. 74 INDIANA LAW JOURNAL [Vol. 86:1 governmental prohibitions or sanctions. For that reason, their inhibitory effect can be assumed to be roughly constant, and the appropriate standard of review can therefore be based on the extent to which a challenged prohibition could be thought to skew free trade in ideas. In contrast, as we have seen, when it comes to governmental conduct that does not involve a prohibition but instead presents a “chilling effect,” First Amendment doctrine seems to offer little more than ad hoc balancing that endeavors to compare the extent of the inhibition on speech to the governmental interests at stake. Ad hoc balancing is the order of the day regardless of the risk that the regulation at issue is premised on an improper governmental motive. When the government imposes something less than a prohibition on free speech—such as in a First Amendment investigation—it seems impossible to reach an acceptable conclusion without considering the degree of inhibition imposed by the challenged practice as well as its justification. The regulation at issue in Meese v. Keene, for example, may be rife with the risk of improper motive, but its inhibitory effect was limited. The initiation of grand jury investigations may be similarly prone to improper motives, but the consequences of constraining the government’s ability to investigate are unacceptable, and the inhibitory effect of an investigation, while perhaps greater than the mandated disclosures in Meese v. Keene, is limited as well. In this fashion, ad hoc First Amendment balancing seems inescapable, at least in contexts in which it is difficult to generalize about the extent to which a government practice is likely to inhibit free speech.

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First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech

Concerns about the use of excessive force by police, especially when directed at persons of color, have long been prevalent. A wide variety of proposals have been advanced to address the problem, including more robust regimes of criminal or civil liability, and reforms that facilitate the supervision and discipline of officers.The striking thing about the reform menu is that it is virtually all stick and no carrot. This approach is less likely to produce optimal performance than over-deterrence – sometimes called depolicing. It is also likely to reinforce the code of silence – frequently documented in the literature on policing – in which police do not acknowledge wrongdoing in order to insulate themselves and their peers from discipline. Equally important, there has been no effort to assess proposed reforms in light of what we know about the sociology of policing and the ecology of highcrime communities. This literature suggests that high-crime communities are unlikely to achieve anything like stability without a robust police presence. Reforms that fail to grasp the need for aggressive policing at criminogenic hot spots are doomed to failure.Utilizing the scholarly literature on policing, urban sociology, criminology, and, occasionally, the author’s experiences as a senior municipal official, this article identifies the weaknesses of leading proposals for addressing police violence, and considers as well some novel proposals that have not yet received attention in the scholarly literature, but that show greater promise for dismantling the code of silence and rendering policing more transparent and accountable.

Good and Bad Ways to Address Police Violence

A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court. Commentators have universally condemned this state of affairs.

This article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason for their reluctance to embrace rules excluding evidence thought to present unduly high risks of convicting the innocent.

The case for reform is rooted in Blackstone’s admonition that the law should be wary of admitting evidence of guilt, preferring the acquittal of the guilty to the conviction of the innocent. It is difficult, however, to construct a Blackstonian case for exclusion of evidence thought unduly likely to produce wrongful convictions. Given our limited knowledge about the error rates that inhere in most types of evidence, Blackstonian reform has no ascertainable stopping point; excluding evidence that poses what is thought to be an undue risk of wrongful conviction could result in the exclusion of virtually all evidence of guilt. To illustrate the point, this article considers an issue on which the lower courts have split—the role of corroborative evidence in assessing the admissibility of an eyewitness’s identification. Although Blackstonian prophylactic rules reject consideration of corroborative evidence, the reliability of most evidence cannot be assessed in isolation. Reliability can usually be assessed only in the context of all pertinent evidence. Thus, totality-of-the-circumstances tests, such as the approach reflected in the Supreme Court’s decisions on eyewitness identification, are about the best we can do. Prophylactic evidentiary rules designed to reduce rates of wrongful conviction turn out to be deeply problematic.

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Eyewitness Identification and the Problematics of Blackstonian Reform of the Criminal Law

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.

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The Emerging First Amendment Law of Managerial Prerogative

This paper will appear as a chapter in a forthcoming book to be published by the Johns Hopkins University Press that analyzes the efficacy of firearms regulation. In this paper, the authors analyze the emerging jurisprudential framework for assessing the validity of firearms regulation under the Second Amendment to the United States Constitution. This emerging framework, the authors contend, preserves substantial regulatory authority for federal, state, and local governments. The authors then assess the constitutionality of the leading proposals for regulatory reform that have emerged in the wake of the tragic events at Sandy Hook Elementary School in Newtown, Connecticut.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2205913_code513752.pdf?abstractid=2205520&mirid=3

Lawrence Rosenthal

Papers

First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech

Good and Bad Ways to Address Police Violence

Eyewitness Identification and the Problematics of Blackstonian Reform of the Criminal Law

The Emerging First Amendment Law of Managerial Prerogative

The Scope of Regulatory Authority Under the Second Amendment