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

Much has been written about the rule that prevents the use of evidence obtained in violation of the Fourth Amendment’s prohibition against unreasonable search and seizure. The quantity of the literature, however, threatens to obscure important areas of emerging agreement. This paper, part of a symposium in the Ohio State Journal of Criminal Law to appear for the 100th anniversary of Weeks v. United States, presents seven theses. The first four enjoy widespread support, with considerable justification: 1) the exclusionary rule is not constitutionally required; 2) history does not resolve the propriety of the exclusionary rule; 3) the Fourth Amendment requires an effective deterrent to unreasonable search and seizure; and 4) the exclusionary rule offers some meaningful deterrence of unreasonable search and seizure because of the political costs of exclusion. Although the remaining theses are somewhat more controversial, the general acceptance of the first four and, in particular, the recognition that exclusionary imposes political rather than economic costs, I will contend, powerfully suggests the soundness of the final three: 5) exclusion of evidence obtained in violation of the Fourth Amendment is not invariably required to preserve its deterrent efficacy; 6) exclusion is sometimes required to achieve constitutionally sufficient deterrence even in the absence of culpable misconduct; and 7) alternatives to exclusion are of uncertain efficacy because they rest on problematic theories of deterrence. Collectively, the seven theses amount to a grudging defense of the exclusionary rule. The exclusionary rule has many defects, but there are great difficulties identifying a superior alternative.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2258614_code513752.pdf?abstractid=2235848&mirid=1

Seven Theses in Grudging Defense of the Exclusionary Rule

The decision of the United States Supreme Court in District of Columbia v. Heller ended one debate about the Second Amendment while beginning another. Prior to Heller, the principal point on which courts and scholars had joined issue was whether the Second Amendment secures an individual right to bear arms or a right to participate in an organized militia. In Heller, the Court came down on the individual-rights side while resolving little else about the extent to which the Second Amendment will constrain the power to regulate firearms. Among the many questions left for future litigation, the two most important are the extent to which firearms regulations must be justified in order to withstand constitutional attack, and whether the Second Amendment is applicable to the state and local laws as a result of its "incorporation" within the Fourteenth Amendment. This article addresses these critical issues of doctrinal "plumbing" in the wake of Heller. Part I considers the stakes in the constitutional debates to come - a consideration that bears importantly on both incorporation and the standard of scrutiny. Part I argues that the available data suggest that stringent regulation of concealable weapons played an important role in driving down the rate of violent crime. By virtue of the underappreciated interaction between the constitutional rules governing search and seizure and the scope of firearms regulation, gun control laws enhance the ability of the police to utilize aggressive stop-and-frisk tactics when they suspect that a firearm is being carried unlawfully. These tactics, in turn, make it risky for gangs and drug dealers to carry firearms in public, thereby reducing the rate of violent confrontations in public places. The Second Amendment right articulated in Heller, however, imperils such efforts to drive firearms off the streets. Part II turns to the historical evidence on incorporation. There has been something of a trend in the academy in favor of the view that incorporation of the Bill of Rights reflects the intentions of the authors of the Fourteenth Amendment. This scholarship, however, fails to take account of the emerging consensus among originalists that constitutional interpretation should not be guided by the intentions of constitutional drafters but instead by the meaning of the text as it would have been originally understood by the public - a view embraced by Heller itself. The historical case for incorporation is deeply problematic when measured against original public meaning. While many of those most instrumental in the crafting the Fourteenth Amendment likely did believe that it rendered the first eight amendments applicable to the states, there is only deeply conflicting evidence about whether this had become an accepted public meaning when the Fourteenth Amendment was ratified. The historical evidence therefore supplies no satisfactory basis for resolving the incorporation question. Part III considers the case for incorporation under current doctrine, which asks whether a given right is "necessary to an Anglo-American regime of ordered liberty." To determine whether Second Amendment rights are sufficiently fundamental to merit incorporation, it is first necessary to examine the nature of those rights; and that leads to the Second Amendment standard of scrutiny. Heller contains an important clue; it defines the "militia" to include all those "physically capable of acting in concert for the common defense"; the militia is accordingly not limited to only the members of an "organized militia." It follows that textual support for regulatory power over firearms is found in the Second Amendment's preamble, which, Heller explains, is properly consulted to clarify the Amendment. The preamble envisions a "well regulated militia"; thus, the preamble indicates that the entire populace capable of bearing arms may be "well regulated." Regulation, however, cannot render the right itself nugatory, and for this reason, Heller suggests that firearms regulation should be sustained as long as it poses no undue burden to the right to keep and bear arms, much as the Court has evaluated abortion regulations. Part III then concludes that even this qualified version of the Second Amendment right does not merit incorporation. The eighteenth-century conception of the right to bear arms has not fared particularly well in subsequent jurisprudential history, and, even more important, in many high-crime urban areas, it may be effectively impossible to create the type of "well-regulated militia" envisioned by the Second Amendment. The demands of ordered liberty argue for leaving gun control policy at the state and local level.

Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias and Criminal Street Gangs

Theories of tort liability generally fall within two broad camps: the instrumentalists claim that tort liability promotes efficient investments in safety by cutting into the revenues of those who under-invest in safety; and the advocates of corrective justice claim that tort liability embodies a moral obligation of culpable parties to bear losses for which they are fairly considered responsible. Neither theory offers much support for government tort liability. Unlike private tortfeasors, the government's objective is not profit maximization; it responds to political and not market discipline. Thus, the instrumental justification for tort liability is wanting in the public sector. As for corrective justice, the government passes its legal costs along to the taxpayers, who bear little if any culpability for the underlying tortious conduct. Thus, corrective justice also supplies little support for public-sector tort liability. Indeed, there is an emerging consensus among legal scholars that government tort liability lacks a coherent justification. In this article, I endeavor to show that the emerging consensus is wrong. To do so, I anchor the justification for government tort liability in a theory of political behavior. I look to politics because the government responds primarily to political costs and benefits, whereas private tortfeasors respond primarily to economic rewards or punishment. In my view, government tort liability exacts a political price by diverting the funds used to pay judgments and other litigation costs from what elected officials regard as the politically optimal use of those funds. Therefore, government liability creates a political incentive to invest in loss prevention in order to maximize political control over public resources. This theory, however, does not argue for unlimited government liability; to the contrary, it also provides a justification for many of the immunities that limit government liability.

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A Theory of Government Damages Liability: Torts, Constitutional Torts, and Takings

Originalism - the view that constitutional provisions should be interpreted as they were understood at the time of the law's enactment - is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process - entitling civil and criminal defendants to those procedures considered due at the time of framing - would accordingly condemn any number of innovations in criminal and civil procedure that infringe framing-era procedural rights, such as the novel systems for administrative adjudication of parking ticket cases now used in many municipalities that this article uses as an example of the problems that inhere in an originalist account of due process. Nevertheless, it seems to have gone unnoticed that in jurisprudence and scholarship about procedural due process, originalism is nearly entirely absent. Originalists have been unable to develop an account of what type of process should be considered due based on a framing-era understanding of due process. Their failure has important implications for originalism as a method of constitutional interpretation. While it is crucial to the originalist project that constitutional provisions have a reasonably ascertainable original meaning, originalists have spent little time defending that assumption. In this article, I challenge that assumption for the Due Process Clauses of the Fifth and Fourteenth Amendments. The article considers the original understanding of procedural due process, and demonstrates that by the time the Fourteenth Amendment's Due Process Clause was ratified, the Supreme Court had decisively rejected the understanding of due process contained in the law of England, which had afforded nearly absolute deference to legislative innovation, but had replaced it with no clear or coherent account. As of 1868, due process operated not as a fixed set of rules - the meaning of due process at the time of the framing was too amorphous to support that view - but instead to delegate to the judiciary responsibility for countermajoritarian oversight of the manner in which persons are deprived of life, liberty, or property. This evolutionary and common-law conception of due process is consistent with the evolutionary character of civil and criminal procedure up until the adoption of the Due Process Clause, as well as the tradition of common law constitutional adjudication that had taken firm root by 1868. In short, the original meaning of the Due Process Clause was nonoriginalist. This account has implications for substantive due process as well. If the concept of due process was intended to evolve through common law adjudication, surely that was equally true for its procedural and substantive components. Indeed, the original meaning of much of the Constitution may be nonoriginalist. It may be that many constitutional provisions, in order to obtain supermajority support, were drafted in broad and relatively abstract terms, in order to minimize objections. Thus, it many be that the original meaning of much of the Constitution is indeterminate, and accordingly can be construed only through a common law process of judicial elaboration.

/pdf/does-due-process-have-an-original-meaning-on-originalism-due-1byrmy7z3o.pdf

Lawrence Rosenthal

Papers

Seven Theses in Grudging Defense of the Exclusionary Rule

Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias and Criminal Street Gangs

A Theory of Government Damages Liability: Torts, Constitutional Torts, and Takings

Does Due Process Have an Original Meaning? On Originalism, Due Process, Procedural Innovation...and Parking Tickets

A Theory of Government Damages Liability: Torts, Constitutional Torts, and Takings