The Volokh Conspiracy

(Added: There are some excellent comments in the thread, well worth reading.) Walter Russell Mead and Tyler Cowen each point to this article in New York Magazine, describing a decision by US Magistrate Andrew J. Peck (SDNY) to allow the “use of predictive coding, a computer-assisted document review that turns much of the legal grunt work currently done by underemployed attorneys over to the machines.” The work performed by armies of temporary “contract lawyers”?

The task of combing through mountains of emails, spreadsheets, memos and other records in the discovery process currently falls on a legion of “contract attorneys” who jump from one project to another, employed by companies like Epiq Systems. Many are recent grads who are unable to find full-time employment, or lawyers laid off during the recent recession.

Scan. Point. Click. Repeat. That’s the job. Contract attorneys are paid by the hour to sit in front of a computer and review a mind-numbing sequence of uploaded documents. There are cramped, sunless rooms in law firms throughout the city, with rows of computers piled one on top of the other, and constant uncertainty as to how long each particular stretch of employment will last.

Predictive coding promises to make this job much more efficient over time – and drastically reduce the amount of work and number of contract attorneys employed.

Using the technology, a senior attorney familiar with the intricacies of a specific case reviews and codes a “seed set” of documents. An algorithm then identifies properties among the manually reviewed documents to code and sort everything else. Each document is assigned a score to indicate the likelihood it’s correctly coded.
Proponents say predictive coding is not only more accurate than using human reviewers, but also more efficient …. There’s no escaping the fact that as predictive coding is used more widely, the technology will reduce the overall number of documents to be reviewed and the attorneys needed to review them. Judge Peck noted the technology will require human review of less than 2 percent of all documents in an average case. His stamp of approval means that the document reviewer ranks may be culled sooner rather than later.

Mead adds a comment about what this means for the future of lawyering as a profession and as a safety ticket to the upper middle class. I would add the additional comment that survival lies in getting on the right side of algorithm production. That doesn’t necessarily mean that one has to write algorithms. We live in a highly complex economy with many niches. But whatever one’s niche, it helps a lot to be aligned on the side of the angels of creative destruction, rather than sitting in their path.

Software is getting smarter, and computers continue to grow more powerful. What we see now is only the beginning of a process by which the routine elements of legal work — and frankly speaking, that is where the bulk of the jobs have always been — can and will be automated. Not all young lawyers will be doomed. There will be some smart, entrepeneurial kids who figure out how all this computing power can allow a small, lightly capitalized firm to deliver high quality services at a breathtakingly low cost to selected clients. Those kids will do well.

Others will benefit from greater demand. Legal services are likely to get cheaper: there is a lawyer glut that is likely to grow, and the increasing capabilities of computers in the legal field mean that the amount of available legal brainpower will explode. Cheaper legal services mean that more people and firms will use the legal system and legal expertise in various ways: the lawyers and firms who figure out how to ride this wave will also do well.
Brilliant and creative lawyers will continue to do well. So will the marketers, the deal makers and the connectors. But law isn’t going to be the kind of safety play ticket to the upper middle class that it used to be.

Strange but true. Paul Campos has the scoop, which begins:

The Thomas M. Cooley Law School served me with a subpoena yesterday afternoon, commanding me to produce certain documents purportedly relevant to [a defamation lawsuit Cooley has filed against certain critics of the law school]. The documents in question include all my communications with the defendants, and “all documents and communications . . . that you had or exchanged with any person regarding how (i) Thomas M. Cooley Law School reports its post graduation employment rates or (ii) your communications with David Anziska regarding any inquiry or investigation he discussed with you about how law schools report post-graduate employment and salary data.”

Among the many articles tracking the decline and, presumably shortly, fall of the law firm Dewey & Leboeuf, I found New York Times business columnist James B. Stewart’s “Dewey’s Collapse Underscores Law Firms’ New Reality” to be one of the most insightful as to the general shift in the business model of large, prestigious law firms. It’s insightful both in Stewart’s perspective as a lawyer who started out in a top tier New York firm, watching the changes across the years in high-prestige, high-pay law practice – and in his observations about the way in which the Dewey business model was financed, with long term debt.

As dispatches from my Times colleague Peter Lattman have made abundantly clear, Dewey collapsed under the weight of a toxic combination of high leverage, lavish financial guarantees to many partners and faltering revenue. This makes it, in many ways, the Lehman Brothers of the legal profession, although perhaps that’s unfair to Lehman Brothers. Though highly leveraged, Lehman Brothers had enormous assets on its balance sheet — while Dewey, like law firms generally, had scant tangible assets. Nonetheless, that didn’t stop the firm from heavy borrowing of about $225 million, both by issuing bonds and by drawing on a large line of credit.

“This absolutely falls into the category: What were they thinking?” Bruce MacEwen, a lawyer and president of Adam Smith Esq. and an expert on law firm economics, told me this week, as Dewey suffered a new wave of partner defections and the firm’s accelerating collapse appeared unstoppable. “This was Mismanagement 101 across the board. They had a ringside seat for the collapse of Lehman and Bear Stearns. But they had the same mismatch of assets and liabilities. They took on a massive amount of long-term debt, but their assets are short term: they walk out of the firm every day and may not come back, which is what more and more of them did.”

It’s not yet clear how the firm used the debt proceeds. Partners say most of the debt predated the merger with LeBoeuf, and was a rational and cost-effective way to try to manage existing debt. Still, it seems likely at least some of it went to meet the extensive guarantees the firm made to individual partners, some reaching millions of dollars and apparently extending over many years.

I am curious particularly to see the bond documents in this case, from an interest in the covenants and how they are drafted with regards to things like retention of partners and so on. If anyone were able to point me in the comments to an easy online link with the bond documents, I’d be grateful. (John Coates tweets that it was a private placement – from the press reports, I was under the impression that someone had posted the PPM somewhere, or at least the main terms, but I guess not. Maybe they were just described or show to some journalists.) The Times has done excellent reporting on Dewey over the past months, likewise the Wall Street Journal, and the Economist had, as ever, a highly readable, highly quotable, really quite elegantly cribbed summary a week or so ago.

The bigger question for law firms, lawyers, law students, and law schools is less the financing model and its flaws than whether Dewey ultimately was the latest casualty in a larger shift toward the commodification of hithertofor high-end, bespoke legal services, on the one hand, and increased customer pricing power, on the other. My own unscientific sense of the market is that there will be demand for legal services, particularly in commercial law, financial services and institutions – but that much of it will be related to bread and butter transactions taking place in real time, and much less large scale transactions in which lawyers can capture up front presumed premiums from the deal that would only emerge over many years. A lot of the new demand will be at the point where commercial law meets compliance law in ordinary transactions taking place today. The value is real; but the value is also much more tightly confined, and billings will reflect that. Even so, client pricing power will also continue to reflect excess lawyer supply for the foreseeable future. Am I mistaken about this highly subjective account?

Yesterday, the U.S. Court of Appeals for the Fifth Circuit lifted the emergency stay of the court injunction barring Texas from excluding Planned Parenthood from participation in the state’s Women’s Health Program. In its per curiam order, the Fifth Circuit explained that Texas was unable to substantiate its claim that it needed the extraordinary relief provided by an emergency stay and failed to adequately address relevant Fifth Circuit precedent, Planned Parenthood of Houston & Southeast Texas v. Sanchez, 403 F.3d 324 (5th Cir. 2005) in particular. A regular appeal of the preliminary injunction remains pending.

I previously blogged on this case here.

The sad news is here; some stories are reporting his age as 47 and others as 48. I would have never guessed that the Beastie Boys would put out so much good stuff over the years back in 1986 when Licensed to Ill came out. But they did. In my view, the group’s high point was clearly Paul’s Boutique, which remains one of my favorite and most-played CDs. But their later work was good, too: Although I never really got into their most recent release, Hot Sauce Committee Part 2, I thought To the 5 Boroughs was excellent.

Law and Ethics for Robot Soldiers is the title of a new essay by Matthew Waxman and me; it will appear in Policy Review down the road, but we have posted to SSRN an annotated and footnoted version that we hope will be useful to students, researchers, and scholars.

The regulation of lethal autonomous weapons can be approached from two directions. One is to look from the front-end – starting from where technology stands today, forward across the evolution of the technology, but focused on the incremental changes as and how they occur, and especially how they are occurring now. The other is to imagine the end-state – the necessarily speculative and sometimes pure sci-fi “robot soldiers” of this post’s title – and look backwards to the present. If we start from the hypothetical technological end-point – a genuinely “autonomous,” decision-making robot weapon, rather than merely a highly “automated” one – the basic regulatory issue is, what tests of law and ethics would an autonomous weapon have to pass in order to be a lawful system, beginning with fundamental law of war principles such as distinction and proportionality? What would such a weapon be and how would it have to operate to satisfy those tests?

This is an important conceptual exercise as technological innovators imagine and work toward autonomy in many different robotic applications, in which weapons technology is only one line of inquiry. Imagining the technological end-point as law and ethics means, more or less, hypothesizing what we might call the “ethical Turing Test” for a robot soldier: What must it be able to do, and how must it be able to behave, in order to make it indistinguishable for its morally ideal human counterpart? The idealized conceptualization of the ethically defensible autonomous weapon forces us to ask questions today about fundamental issues – who or what is accountable, for example, or how does one turn proportionality judgments into an algorithm? Might a system in which lethal decisions are made entirely by machine, with no human in the firing loop, violate some fundamental moral principle?

All these and more are important questions. The problem in starting with them, however, is that the technology driving toward autonomous weapons is proceeding in little tiny steps – not gigantic ones that immediately implicate these fundamental questions of full autonomy. (And some very important critics – their enthusiasm tempered by earlier promises of artificial intelligence that failed to deliver – question whether the tiny little steps can ever get to genuine autonomy. Others question whether there will ever be any real appetite among military planners to embrace full autonomy, distinct from automated systems that nonetheless keep the human centrally in the firing loop, and not merely notionally so.)

The systems being automated first are frequently not the weapons themselves, but instead other parts of the system. But they might eventually carry the weapons in train – and that might conceivably happen whether there is any separate appetite for highly automated or autonomous weapons as an independent matter. Thus, for example, as fighter aircraft become increasingly automated in how they are flown – in order to compete with enemy aircraft also becoming more automated – eventually important parts of the flight functions operate faster than humans can. In that case, however, it looks irresistible to automate, if not make fully autonomous, the weapons systems, because they have to be integrated with the whole aircraft and all its systems. We didn’t start out intending to automate the weapons – but we wound up there because the weapons are part of a whole aircraft system.

The facts about how technology of automation is evolving are important for questions of regulating and assessing the legality of new weapons systems. In effect, they shift the focus away from imagining the fully autonomous robot soldier and the legal and ethical tests it would have to meet to be lawful – back to the front end, the margin of evolving technology today. The bit-by-bit evolution of the technology urges a gradualist approach to regulation; incremental advances in automation of systems that have implications for weapons need to be considered from a regulatory standpoint that is itself gradualist and able to adapt to incremental innovation. For that basic reason, Matt’s and my paper takes as its premise the need to think incrementally about the regulation of evolving automation.

The essay’s takeaway on regulation is ultimately a modest one – a quite traditional (at least from the US government’s long-term perspective) approach to weapons regulation. Grand treaties seem to us unlikely to be suitable to incremental technological change, particularly as they might seek to imagine a technological end-state that might come about as anticipated, but might develop in some quite unexpected way. Sweeping and categorical pronouncements can re-state fundamental principles of the laws of war, but they are unlikely to be very useful in addressing the highly specific and contingent facts of particular systems undergoing automation.

We urge, instead, a gradually evolving pattern of practices of the states developing such systems. And as part of the process of legal review of weapons systems, development through reasoned articulation of how and why highly particular, technically detailed weapons systems meet fundamental legal standards. In effect, this proposes that states develop bodies of evolving state practice – sometimes agreeing with other states and their practices, but likely other times disagreeing. This seems to us the most suitable means for developing legal standards for the long term to address evolving weapons technology. Abstract below the fold. Continue reading ‘Law and Ethics for Robot Soldiers’ »

Aside from Brian Leiter, whose contention that being Native American provides no affirmative action edge in law school hiring fails the straight-face test, it is obvious to everyone else why Elizabeth Warren self-identified as Native American all those years–which was to get an edge in hiring.  Even less plausible, of course, is her own explanation–that she was looking for people to have lunch with (once she got to Harvard was it that she no longer was interested in having lunch with other Native Americans or that the strategy was so successful that she had just had too many lunches through the years?).  Larry Sabato states the obvious:

“This takes her biography into a bizarre dimension,” said Larry Sabato, director of the University of Virginia Center for Politics. “It has derailed the effort to define Warren in a voter-friendly way.”

Sabato also said that Warren’s claim that she didn’t list herself as a minority to gain an employment advantage is not believable.

“This is what happens when candidates don’t tell the truth,” he said. “It’s pretty obvious she was using (the minority listing) for career advancement.”

So assume the only reasonable explanation–that contrary to Leiter’s statement she did this to get a leg up in hiring and contrary to her own statement she didn’t do it to find lunch partners.

But Warren’s campaign has produced statements, most notably from the very distinguished bankruptcy scholar Jay Westbrook at Texas, that her purported Native ethnicity was not taken into account, in his opinion and recollection, in her hiring at Texas.  Although I’ve heard otherwise, Jay’s comment certainly may be true and seems plausible–as I’ve acknowledged previously, I think very little of her work but I also recognize that on the merits she is a perfectly plausible hire at the schools she has taught at.  (Paul Bedard notes some curiosities about her hiring at Harvard that he thinks provides circumstantial evidence that racial preference played a role, but I’m not persuaded on that evidence alone.  Although it is ironic that a credentials snob like Leiter doesn’t raise an eyebrow at Harvard’s lone Rutgers grad–one wonders what he would think of Rutgers grads applying to teach at Chicago, for example.  One other observation about Bedard’s column though, is that as far as I can tell the Nebraska JD on the Yale faculty is an emeritus clinical professor not a senior chaired substantive professor as Warren is).

And let me also hasten to add, while I’ve obviously had my clashes with Elizabeth through the years, that in no way extends to Jay, for whom I have great respect and esteem who has invariably treated me with kindness and respect in my interactions with him.  So I am certainly not questioning his recollection.  But Jay is also a very longstanding friend and co-author of Elizabeth’s, so his belief of her quality may not be entirely representative of whether others on those faculties share his view that she has always been a no-brainer on the merits and might have considered racial preferences at the margin.  Given the norms of the academy, of course, even if there were those who may have seen the issue differently from Jay, there is very little incentive for those with differing recollections to come forward and provide a different story.  I also note that I don’t read Jay as saying that she never said during the hiring process that she was Native American, his defense is only that it didn’t turn out to be relevant to her being hired.

But, more importantly, I think all this vouching for her is largely beside the point with respect to the larger issue here which is not whether she did receive a racial preference from self-identifying as Native American but whether she thought that she would receive a preference for doing so (at the margin from at least some people).  The issue is the one of ethics–did she try to trade on Native American ethnicity for personal advantage, not whether she actually succeeded in doing so.  Would it matter, for example, if someone fabricated relevant credentials on his resume even if it turned out not to make a difference in hiring?  Of course it would.  Would it matter if someone plagiarized three articles in a tenure file if he also had several other articles that would have been sufficient to grant tenure?  Of course it would.  Similarly, if you think that Warren dishonestly (or at least recklessly, given that apparently she relied on nothing but “family lore” for all those years without any verification at all) represented herself as Native American in order to gain an advantage in hiring, then it seems utterly beside the point whether she would have been hired anyway.  Or, at least, if I were sitting on appointments committee I would find the repeated misrepresentation of minority status to be disqualifying for a candidate (and, frankly, I add as an aside that I’m surprised that Leiter is so cavalier about what seems like a pretty clear a credible case of credentials fraud and it seems pretty doubtful that he would be so tolerant of someone whose politics he finds less congenial).

Update: On reflection I changed “pretty clear” to “credible” to reflect that the record is not entirely clear as to how she represented herself in the hiring process.  But while there’s been discussion of whether her employers held her out as a minority I’ve not seen anyone question whether she had held herself out as a Native American at times in the law school hiring process even though it appears that she had no verifiable basis for doing so and almost certainly wouldn’t have been considered Native American by almost anyone’s reasonable understanding of what that category describes for diversity purposes.

Update: Hans Bader argues that another possible reason why even if Warren had claimed minority status for purposes of racial preferences some people might be unwilling to come forward to admit it–that doing so could expose them to personal liability.  My personal opinion is that this unlikely to be much of a factor–my sense is that a far more powerful reason is that the norms of the academy, especially with respect to someone as high-profile as Warren, provide few incentives to do so and strong incentives not to do so.

In honor of the 50^th anniversary of the publication of Milton Freidman’s Capitalism and Freedom the Liberty Law website has organized a symposium of reflections on the book’s legacy.  The introduction to the symposium is here.  My essay, which takes off on the coincidence of the publication of Capitalism and Freedom and Hayek’s The Constitution of Liberty just two years apart, is here.

One thing that struck me is how relevant many of Friedman’s arguments remain because even though it seems apparent that he has won the war of ideas on many of the issues he discusses, policies in many areas (most notably occupational licensing) have gotten worse, rather than better, in the meantime.  Which unfortunately suggests that interest groups and public choice dynamics may be more proximately important than ideas (although bad ideas, of course, create the environment for interest groups and political opportunists to prosper).

This was the first time in years that I read Capitalism and Freedom all the way through cover to cover, which was very edifying.  So I want to thank Richard Reinsch at Liberty Fund for inviting me to participate in the symposium.

This new Quinnipac study of swing state voters in Florida, Ohio and Pennsylvania shows the Democratic Party slightly more popular than the Republican Party (and President Obama opening a 47% – 39% lead over Mitt Romney in Pennsylvania):

Yet these same voters — including voters in Pennsylvania — want the Affordable Care Act either repealed:

Or found by the Supreme Court to be unconstitutional:

H/T Jim Geraghty

I am a million mile flier on United Airlines — that’s actual miles flown, without any bonuses — but lately have been disenchanted with the airline’s treatment of its frequent fliers.  But I have no beef like musician Dave Caroll’s (from this website):

Musician Dave Carroll had difficulty with United Airlines. United’s baggage handlers damaged his $3500 custom guitar, and he spent over 9 months trying to get United to pay for damages.

During his final exchange with the United Customer Relations Manager, Dave stated that he was left with no choice other than to create a music video for YouTube exposing United’s lack of cooperation. The manager responded: “Good luck with that one, pal.”

Dave shot and posted his video on YouTube. The video has since received over 11 million hits. (You’ll soon see why!)
United Airlines contacted Dave and attempted settlement in exchange for pulling the video. Naturally Dave’s response was: “Good luck with that one, pal.”

Taylor Guitars sent Dave two new custom guitars in appreciation for the product recognition from the video that has lead to a marked increase in orders.

Here is the video:

And I was thinking about writing a letter. Now that you’ve seen the video, you can visit Dave’s site here. He is selling a book entitled, United Breaks Guitars, which the publisher describes as follows:

Hat Tip, Mike Rappaport.

Activist groups of various political stripes are increasingly urging boycotts of companies not because of the companies’ own behavior, but because of the behavior or speech of those the companies patronize or support. The aim of such boycotts is not to affect corporate behavior as much as it is to create economic pressure on third parties or dry up support for political opponents. Former FEC Chairman Brad Smith has an op-ed in today’s WSJ on the danger of such “secondary boycotts” to civil society.

It’s becoming hard to know with whom one can do business.

We’ve been told that if you don’t like what Rush Limbaugh or Glenn Beck says on the radio, you should not only not listen to their shows, you should boycott businesses that advertise on their shows. We are told that if you don’t like the activities of the American Legislative Exchange Council—a nonpartisan nonprofit that provides a meeting ground for conservative state legislators to share ideas—you should boycott companies that support the council. . . .

All these examples are what are called “secondary boycotts”—attempts to influence the actions of the target by exerting pressure on a third party. Secondary boycotts should not be confused with primary boycotts. A decision not to patronize a business that discriminates on the basis of race is an example of a primary boycott. Primary boycotts—used to great effect during the Civil Rights Movement—have a long and often laudatory history.

But secondary boycotts have long been recognized as harmful to civil society. They rend the social fabric by making it difficult for people to simply live their lives.

The problem, in part, is that one boycott can lead to another. Progressive groups have gone after corporate supporters of the American Legislative Exchange Council because it supports voter identification requirements. Yet, as Smith notes, most Americans support such laws, so what would happen if conservative groups targeted corporations that support anti-voter-ID groups. The threat of such counter-boycotts is not merely hypothetical. Just as pro-gay marriage groups have targeted companies for donating to anti-gay marriage groups (even if the donations were for wholly unrelated reasons), anti-gay marriage groups have begun organizing boycott campaigns of their own. Progressive groups were able to get some advertisers to drop Rush Limbaugh, but some conservatives responded by encouraging boycotts of companies, such as Carbonite or Arby’s, that succumbed to such pressure.

Secondary boycotts are particularly destructive when they target groups for supporting political speech. As Smith notes, the point of such boycotts is not to alter primary behavior, such as ending discriminatory practices, but to dry up economic support of unpopular speech. “The power of ideas is abandoned for the power of economic coercion.”

If it’s acceptable to place economic pressure on those who support political ideas with which one disagrees, where should this principle end? Should employers be allowed to discriminate based upon political beliefs or contributions? If unions are encouraging boycotts of business that do not declare their opposition of Wisconsin Governor Scott Walker, should employers refuse to hire those who embrace the anti-Walker campaign? Notes Smith, “Any decision not to hire would be, in effect, a secondary boycott of the applicant. This type of thinking will almost certainly lead to the stifling of many valuable political ideas and innovations.” This doesn’t mean secondary boycotts should be illegal, but not everything permissible is also wise.

Secondary boycotts may seem like an effective tool for progressive causes, but they also entail substantial risks. The culture of secondary boycotts threatens to balkanize all of civil society along political lines, making it ever more difficult to espouse unpopular or minority views.

People have a right not to do business with companies or individuals. But blacklists—never a healthy part of political debate—endanger the very commerce that enriches us all.

I’ve posted a new, short essay on SSRN, “The Senate and Hyper-Partisanship: Would the Constitution Look Different If the Framers Had Known that Senators Would Be Elected in Partisan Elections?”  The essay was written for a symposium sponsored by the Georgetown Journal of Law and Public Policy on the topic of “Hyper-Partisanship and The Law.”

Here’s the Abstract:

This article is a contribution to the symposium “Hyperpartisanship and the Law,” sponsored by the Georgetown Journal of Law and Public Policy. The article considers the implications of direct election of United States Senators via partisan elections for the Constitution. As originally designed, the Senate was elected by state legislatures and the Framers anticipated (naïvely perhaps) that the Senate would be comprised of men chosen on the basis of distinction and ability rather than partisan allegiances. That system was changed in 1913 with the enactment of the Seventeenth Amendment, which adopted direct election of Senators. This article asks whether the Constitution would look different if the Framers had anticipated that Senators eventually would be elected by direct election as opposed to indirect election.

In particular, I focus on the distinctive powers given to the Senate within the federal constitutional structure and the reasons articulated for why those powers were given to the Senate: the power to try impeachments, to confirm nominees, and to ratify treaties, as well as the role of the Senate in the system of bicameralism and federalism. Although it is impossible to know for sure what the Framers would have done had they anticipated direct election in partisan elections I argue that it is likely that they would not have given the power to try impeachments to the Senate in the form that they did, it is reasonable that they might have changed the system of nomination and confirmation, and is likely that they would have retained the Senate’s major role in treaty confirmation. Although direct election dramatically diluted the value of bicameralism, it is likely that they would have retained a bicameral structure for most matters anyway. Finally, it is extremely likely that had they anticipated that Senators would be directly elected they would have built in additional explicit constitutional safeguards for the protection of federalism.

My impetus for writing this was the farcical Clinton impeachment proceedings many years ago, in which the Senate bore no real resemblance to the sort of jury contemplated by the Framers.  While it is plausible to think of an indirectly-elected Senate (at least how the Framers conceived of it) performing that function, that trial demonstrated the unsuitability of the currently-devised Senate in doing so (although it is not clear what the Framers might have put in its place).  That prompts some additional considerations on nominations, the treaty power, and other ruminations.

Over at Prawfs, Sam Bagenstos flags a new investigation by the DOJ Civil Rights Division:

Yesterday, the Division announced the opening of a novel joint investigation of the University of Montana (under Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972), and the City of Missoula Police Department and the Office of the Missoula County Attorney (under the police misconduct provision of the 1994 Violent Crime Control and Law Enforcement Act and the antidiscrimination provision of the 1968 Safe Streets Act). The investigation will assess whether the University and the local authorities violated the Constitution or civil rights laws by failing to protect women against sexual assaults. In announcing the investigation, AAG Perez said that “[i]n the past three years, there have been at least 80 reported rapes in Missoula. At least 11 sexual assaults involving University students are alleged to have occurred in the past 18 months.” This investigation seeks to vindicate the constitutional guarantee of equal protection of the laws in its core, original sense — the guarantee that state and local law enforcement will protect all citizens equally against private depradations.

. . . [W]hat breaks new ground is not the investigation of the University — that’s standard fare for Title IX investigations — but the broader investigation of the local Missoula police and prosecutor’s office. This is the first Division law enforcement investigation of which I am aware in which the discriminatory failure to protect a class of victims of crime has been the main focus, and in which the Division has targeted prosecutors as well as police. This is, as I said, an effort to vindicate the equal protection of the laws in its core, original sense. Discriminatory failure to investigate and prosecute crimes has been a major problem for victims of sexual assault and violence against women (something the Supreme Court acknowledged, then disregarded, in United States v. Morrison). And, as Randy Kennedy’s work highlights, it has been a major problem for racial minorities who are victims of crime as well.

And DOJ is basically the only entity that can challenge these sorts of systemic patterns of discrimination in court. Discrimination is likely to be impossible to prove in any individual case. . . [I]n Missoula, any individual victim is likely to be unable to show that the police or proseuctors responded less vigorously to her crime because of her gender rather than because of the individual facts. . . .

So DOJ is likely the only entity that can bring these sorts of claims into court. I still wouldn’t underplay the difficulties of proof here. But the Civil Rights Division’s efforts to attack the problems of . . . failure to protect crime victims are incredibly important.

I favor aggressive investigation and prosecution of sexual assault crimes. With that said, I’m a bit puzzled by the legal theory animating DOJ’s investigation. If equal protection requires similar treatment of similar things, what is the standard for measuring whether sexual assault crimes are being treated equally? Do we compare prosecutions for sexual assaults in cases with female victims with prosecutions for sexual assaults in cases with male victims? Or do we compare prosecutions for sexual assaults as a whole with prosecutions for other crimes that are generally deemed equally serious? And if the latter, does that mean that the federal constitution’s Equal Protection clause mandates a particular approach to allocation of state and local law enforcement resources in sexual assault cases? This isn’t at all my area, so I’m not sure what to make of this. But at least at first blush, I’m not sure I see a proper role for federal intervention here.

The Wilmington News-Journal reports on a controversy at the University of Delaware involving what may or may not be an attack motivated by sexual orientation:

A University of Delaware student charged with a hate crime [and battery] after allegedly shoving a gay student to the floor at a house party in Newark earlier this month insists that he has been “falsely accused.”

Speaking to The News Journal on Sunday, Derek DiDonato, 21, a junior studying criminal justice, denied allegations that he made derogatory statements about 19-year-old Zachary Baum’s sexual orientation during an early-morning altercation on April 15 inside the East Cleveland Avenue home that DiDonato rents with several roommates.

Now I don’t know who’s telling the truth here, but the following passage struck me as noteworthy, because it shows how a focus on “sensitivity” often distracts people from what really matters:

Wilmington criminal-defense lawyer Eugene Maurer, who is representing DiDonato, accused Baum of using the incident to seek attention.

“We feel this may have been an opportunity that was seized upon by the young man whereby he could politicize this situation, to draw attention to it,” Maurer said. “I think we’re going to be able to demonstrate in part that may have been part of his motivation.”

Baum called that criticism “terribly offensive.”

“I was a victim of an attack,” Baum said. “I didn’t ask to be attacked. To make that kind of allegation is so insensitive.”

Either Maurer’s theory is correct or it’s not. If it’s correct, the incident wasn’t motivated by sexual orientation, and Baum was making up the claim about DiDonato’s motivation for political purposes — indeed, if DiDonato is correct in saying that Baum started it and DiDonato was defending himself and trying to eject an unruly guest — then Maurer’s assertion is perfectly legitimate. If the incident wasn’t motivated by sexual orientation, but Baum sincerely believed that it was so motivated, then Maurer might be mistaken but is making a plausible assertion in defending his client.

On the other hand, if the incident was motivated by sexual orientation, and Baum is telling the truth, then the problem with Maurer’s response is that it’s incorrect. Maybe it’s innocently incorrect, if Maurer thinks his theory is right but it’s not. Maybe it’s deliberately false. But in any event, if it’s incorrect it should rightly labeled be as such — but quite regardless of whether Maurer’s statement is “so insensitive.”

Now Baum is a 19-year-old student, and may not be as precise or articulate as he ought to be; and all of us are imprecise or inarticulate on some occasions. Perhaps he meant “insensitive” just as loose shorthand for “wrong” or some such. I don’t mean to fault him personally for a poor choice of words. Rather, the problem, I think, is with a cultural norm that turns too many factual questions into questions of sensitivity and offensiveness, and that leads people to talk about whether an allegation was “insensitive” and “terribly offensive” when the real issue is whether it was true or false.

The Wisconsin State Journal reports,

The Madison School District has agreed to pay $31,454.57 in legal fees after the State Journal won an open records lawsuit over employee sick notes related to last year’s Capitol protests ….

Prior to the notes being released, the State Medical Examining Board disciplined nine doctors for their involvement in issuing notes during the protest. After the State Journal found at least 15 doctors in the notes who hadn’t been disciplined, the Medical Examining Board decided to investigate 11 additional doctors.

The lawsuit was filed under state public records law, in the wake of the controversy over whether the sick notes were based on honest claims of sickness; the newspaper agreed to have the employee names blacked out to preserve employee privacy.

Speaking of Madison, this James Madison quote — made about support for education funding, but often also used by supporters of public access to government records — might be relevant:

A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will ever govern ignorance; and a people, who mean to be their own governors, must arm themselves with the power which knowledge gives.

I think the most interesting commentary so far on the Elizabeth-Warren-Native-American kerfuffle has been Brian Leiter’s. After Brian’s usual potshot at this blog, he makes a rather intriguing argument for why Warren probably didn’t rely on her apparent Native American heritage in getting hired. In legal academia, he writes,

there is no pressure to hire Native Americans for affirmative action reasons, except, perhaps, at some law schools in states with large Native American presences (I have this only anecdotally about Arizona and New Mexico). For affirmative action purposes, all law schools care about are African-Americans and Latinos, and even in those two categories, law school commitment to affirmative action usually varies by region of the country.

Brian discounts the listing of Warren as a minority professor in the AALS book as indicating more about the AALS’s priorities than Warren’s:

[B]ecause the AALS aggressively polices the racial and ethnic diversity of law faculties, law schools are careful to make sure anyone who could count as an under-represented minority is so-listed (thus, I can recall a faculty member who was the proverbial “Jewish kid from New York” but with some South American ancestry being listed as “Hispanic,” though no one would have ever so identified him).

I don’t have an independent basis on which to assess either claim. Brian is very savvy about legal academia in general, however, so I’m inclined to credit his view. I should add that I share Brian’s skepticism that Warren relied on her ancestry to help get a job at Harvard. My sense is that Warren was indeed among the top bankruptcy scholars at the time Harvard was looking to hire her — and that she very likely was the top female bankruptcy scholar, a distinction that likely carries some significance to at least some faculty members. As Brian notes:

[Warren's] record of scholarship in bankruptcy is clearly sufficient to get her appointed at Harvard. She is, after all, one of the three most-cited scholars in the bankruptcy/commercial law field, and she is the only woman in the top ten. (I could imagine being the top woman in the field might have played more of a role than her being Native American . . .

John Rosenberg discusses some of the bigger-picture slippery logic of affirmative action on Minding the Campus asking why those who believe in racial preferences have rushed to vouch that she never benefited from them.

As Opinio Juris’ Peggy McGuinness explains, a New York state trial court (confusingly called a “supreme court” in New York) today turned down former IMF chief Dominique Strauss Kahn’s claim of civil immunity in a suit by the (former) Sofitel Hotel maid for acts that first got DSK charged criminally with sexual assault – charges later dismissed, however:

On a quick read, it looks like the judge rejected DSK’s claim that he was entitled to diplomatic or “status” immunity on the grounds that: IMF officials do not fall within the status/absolute immunity protections of the Vienna Convention on Diplomatic Immunity; the U.S. is not a party to the Specialized Agencies Convention of 1947, which lays out privileges and immunities of officials of certain international organizations; (3) the Specialized Agencies treaty does not represent customary international law of IO immunities; (4) even if it the Specialized Agencies treaty was applicable, the scope of immunities for IMF officials is limited under an annex to that agreement by the Bretton Woods Agreement and IMF Articles, which specifically limit immunity only to official acts. DSK is not entitled to this official acts/functional immunity … since he was not carrying out official duties during his visit to the Sofitel.

The full opinion is here; see the Opinio Juris discussion as well on the further customary international law claim raised by DSK but also rejected by the court. (Added: And see this further note by Julian Ku at OJ noting that the court didn’t see a need to reach the customary law questions raised by DSK in the case.)

Mark Olson says that CFPB is raising additional concerns as it ramps up in practice:

Two disturbing bits of recent information give us a taste of how the CFPB plans to operate. Representatives from the CFPB have acknowledged that lawyers from the bureau’s enforcement division are accompanying CFPB compliance examiners on their routine examinations….

The second disturbing bit of information concerns the manner in which examination findings are shared with other agencies. Because of the confidential nature of bank examination reports, there is a precise protocol for how government agencies share information. This is to guard against information gathered for one purpose by one agency being used by another agency for a different purpose. For example, there are good and obvious reasons why the IRS does not share personal tax information with other agencies outside a court order. There is also a wide concern that the CFPB, which has a Congressional mandate limited to consumer compliance, might use information collected by the safety and soundness regulators (Office of the Comptroller, FDIC, and Federal Reserve) in its enforcement efforts. With such an initiative, the CFPB would be sending an early signal that it does not intend to be limited in its scope by either precedent or Congressional directive. Hopefully the safety and soundness regulators will recognize the implications of such a request and will resist.

There is good reason why the new CFPB should feel it has a mandate for aggressive supervisory action. But just as in the old west, where vigilance committees quickly became vigilantes, there will be a fine line between the CFPB managing its new powers to achieve greater compliance with consumer laws and regulations, and the potential of an army of CFPB lawyers administering frontier justice on providers of financial services.

One of the obvious questions prompted by the public recognition that Elizabeth Warren’s claimed Native American ancestry is what it takes for someone to avail themselves of the preferential treatment afforded to racial and cultural minorities in hiring–and in particular, can someone assert the identity if they are only 1/32 and have absolutely no cultural ties, such as tribal membership.  (I say “public recognition” because I first heard this a decade ago but I certainly didn’t realize that she was only 1/32 Native American with no cultural tie.)  Warren herself, when originally asked about it, simply said that it was part of her “family lore,” indicating how little care she had put into classifying herself accurately.

To put it another way, would Warren’s 1/32 blood from her great-great-great grandmother, with no other discernible cultural links count for most university preference plans?  Hans Bader, who has worked on a number of such cases, is skeptical (he also notes David’s previous post on this).

I should also hasten to add that although Harvard frequently touted her Native American ancestry (Warren says she never authorized Harvard to claim her as a minority hire although Harvard must’ve gotten the information from somewhere) that does not necessarily mean that was a determining factor in Harvard’s decision to hire her, even if it was a consideration for her stepping-stone law school positions.  By that time she was a well-established commercial law scholar, certainly to the point where it seems plausible would not need to claim Native American background in order to receive a preferential boost to be hired (although obviously I don’t share the general enthusiasm for her work).

Update: Hans has updated and corrected his post so I’ve deleted the block quote that has been superseded and for those who want to read the specifics you can click through the link.

Earlier this year, the state of Texas adopted a rule barring organizations that promote abortions or affiliate with groups that promote abortions from participating in the state’s Medicaid-funded Woman’s Health Program. This rule effectively barred Planned Parenthood clinics from the program. In response, cut off funding for the state’s program, and Texas sued.

At the same time, the state’s Planned Parenthood affiliates also filed suit, alleging the restriction is unconstitutional. Yesterday, a federal district court judge issued a preliminary injunction prohibiting Texas from excluding Planned Parenthood clinics from the state program. Then, late last night, the U.S. Court of Appeals granted an emergency stay, temporarily setting aside the injunction. (The order is here.)

UPDATE: Here’s a link to the original order granting the preliminary injunction.

So holds yesterday’s Herron v. Fannie Mae (D.D.C. Apr. 30, 2012), citing (among other cases) United States v. Beszborn (5th Cir. 1994):

When FHFA [the Federal Housing Finance Agency] steps in as conservator or receiver it immediately succeeds to all rights and powers of the stockholders, officers, and directors of the regulated entity placed into such conservatorship or receivership. In like manner, on September 6, 2008, FHFA placed Fannie Mae into conservatorship. As conservator, FHFA took over the assets and operations of Fannie Mae with all the powers of the shareholders, officers, and directors to conduct all of Fannie Mae’s business, in order to preserve and conserve the assets and property of Fannie Mae….

In such circumstances, the federal agency in its guise as a conservator or receiver of a private corporation is not a government actor. For example, in United States v. Beszborn, 21 F.3d 62, 67–68 (5th Cir.1994), the Fifth Circuit held that the Resolution Trust Corporation (“RTC”) as receiver of a failed bank was not a government actor. The RTC had sued the former officers and directors of the failed bank in a civil case and obtained a judgment including punitive damages. The government subsequently brought criminal charges against the officers and directors based on the same conduct. The officers and directors asserted Double Jeopardy as a defense. The Fifth Circuit found that the RTC as receiver stood in the shoes of the insolvent bank, i.e., that the RTC was a private entity and not the government for purposes of the Double Jeopardy clause. Similarly, Fannie Mae was not converted into a government entity when it was placed into conservatorship; instead, FHFA stepped into the shoes of Fannie Mae. FHFA as conservator for Fannie Mae is not a government actor.

[Footnote: Ms. Herron unsuccessfully attempts to distinguish Beszborn, asserting that the RTC in that case operated to benefit the creditors and stockholders and asserting that FHFA operates Fannie Mae to benefit the federal government. This reflects an incorrect understanding of the facts. Treasury's interest in Fannie Mae is as a shareholder of Senior Preferred Stock. FHFA operates Fannie Mae to benefit of creditors and shareholders, in the same way that RTC operated the failed financial institution in Beszborn.]

Ms. Herron avers that Fannie Mae is a federal actor for the purpose of her First Amendment claim because: (1) the conservatorship is of indefinite duration; (2) FHFA presently controls Fannie Mae; and (3) Treasury provides financial support to Fannie Mae in exchange for non-voting Senior Preferred Stock. Ms. Herron draws the wrong conclusion from these three uncontested facts. Fannie Mae would be a federal actor if the FHFA conservatorship retained for the government permanent authority to appoint a majority of the corporation’s directors. Lebron, 513 U.S. at 400. To the contrary, the appointment of FHFA as conservator did not establish permanent government authority to control Fannie Mae….

First, Ms. Herron insistes that there is no date certain when the conservatorship of Fannie Mae will end,FN11 and, therefore, she erroneously concludes that FHFA control over Fannie Mae must be permanent. In order to be a government actor under the Lebron framework, permanent government control is required. Lebron itself distinguishes permanent from temporary control. The Supreme Court contrasted Amtrak, which was a federal actor in the permanent control of the government, from “a private corporation whose stock comes into federal ownership,” which is in the temporary control of the government. Lebron, 513 U.S. at 398. Although the duration of the conservatorship is indefinite, FHFA’s control over Fannie Mae is temporary. Fannie Mae was not a federal actor at the relevant time.

Second, Ms. Herron asserts that FHFA’s complete control over Fannie Mae makes Fannie Mae a federal actor. Congress empowered FHFA to act as conservator of Fannie Mae for the purpose of reorganizing, rehabilitating, or winding up its affairs. Thus, the enabling statute expressly allows FHFA temporary but complete control over Fannie Mae, not permanent control. The complete control exercised by FHFA is authorized by statute; it is how conservatorship is accomplished. Because conservatorship is by nature temporary, the government has not acceded to permanent control over the entity and Fannie Mae remains a private corporation.

Finally, Ms. Herron also argues that Fannie Mae was transformed into a federal entity via (1) Treasury’s appointment of Fannie Mae as administrator of the Home Affordable Modification Program through the Financial Agency Agreement and (2) Treasury’s entry into the Stock Agreement with Fannie Mae. With regard to the Financial Agency Agreement, it states that Fannie Mae is distinct from the government and must maintain a fiduciary duty of loyalty to the federal government. The Financial Agency Agreement also expressly provides that contractors to Fannie Mae (such as Ms. Herron) do not become subcontractors of the government. These provisions make it clear that the Financial Agency Agreement did not transform Fannie Mae into a government entity.

As a result, Herron’s allegation that Fannie Mae violated the First Amendment by terminating Herron’s contract based on Herron’s speech cannot go forward: Because Fannie Mae, even while it’s run by the federal government, is treated as a private actor, it is not bound by the First Amendment.

I’m not sure this is right. The government is in some measure bound by the First Amendment (and other Bill of Rights provisions) even when it’s running entities that could be run privately, such as housing projects, universities, utilities, railroads, and so on; nor do I see a difference between temporary control by the government and permanent control. But that’s what the court held, and the Fifth Circuit case that it cited (Beszborn) did the same. (The Supreme Court in Lebron v. National Railroad Passenger Corp. (1995) left open the possibility that the temporary vs. permanent control distinction was constitutionally relevant, but it didn’t decide the question.)

The opinion is Pfau v. Mortenson (D. Mont. Apr. 30, 2012). I’m swamped right now, but I thought I’d pass along the opinion — which I should note heavily focuses on questions of whether the fraud was pled with enough particularity, something that’s required in fraud cases under the Federal Rules of Civil Procedure — and an excerpt from this Time report:

As of yesterday, Three Cups of Tea author Greg Mortenson is — at least legally — in the clear. The writer and philanthropist’s best-selling memoir (and its follow-up, Stones into Schools) has been tainted for almost exactly a year by accusations of falsehood: Last April, a 60 Minutes report and an investigation by journalist Jon Krakauer both alleged that Mortenson had fabricated portions of his book, a tale of how he took on the mission of building schools in Central Asia, and that he had improperly used funds from his charity, the Central Asia Institute, to promote the book. In the ensuing months, several readers who felt bilked by having bought the book filed lawsuits, but an Illinois suit against the Institute and Mortenson was dropped in July, and now a federal judge in Montana has dismissed the remaining charges of fraud and racketeering.

Following Louisiana victims of post-Katrina flooding, the Grand Ole Opry is suing the federal government over damage resulting from a 2010 flood of Nashville, claiming negligence by the U.S. Army Corps of Engineers was at least possible responsible for over $250 million in damage to the Opry and other buildings. The LAT reports:

Monday’s lawsuit is notable not only because one of its main plaintiffs, Gaylord Entertainment Co., is the owner of the landmark Opry and the nearby Opryland Hotel, but also because the plaintiffs will try to hold the government accountable using a strategy similar to one employed by a group of New Orleanians who successfully sued the Army Corps over the floods that followed Hurricane Katrina in 2005. . . .

In the Nashville case, plaintiffs argue that the flooding was caused by a botched handling of the Old Hickory Dam upriver. The suit alleges that the federal dam was congressionally authorized not as a flood-control project, but as a hydroelectric power and navigation project. As a result, it argues, the government should not be immune to a lawsuit.

The suit also alleges that the government failed to issue a proper warning of the danger.

If you are interested in learning more about public choice economics a great way to get introduced is by attending the annual Public Choice Outreach Seminar held at the George Mason Public Choice Center in Fairfax.  Information and application material is available here.  I’ll be lecturing again this year again on the topic of “Public Choice and the Law.”