Law and Legal
Surden, Harry, Artificial Intelligence and Law: An Overview (June 28, 2019). Georgia State University Law Review, Vol. 35, 2019; U of Colorado Law Legal Studies Research Paper No. 19-22. Available at SSRN: https://ssrn.com/abstract=3411869
“Much has been written recently about artificial intelligence (AI) and law. But what is AI, and what is its relation to the practice and administration of law? This article addresses those questions by providing a high-level overview of AI and its use within law. The discussion aims to be nuanced but also understandable to those without a technical background. To that end, I first discuss AI generally. I then turn to AI and how it is being used by lawyers in the practice of law, people and companies who are governed by the law, and government officials who administer the law. A key motivation in writing this article is to provide a realistic, demystified view of AI that is rooted in the actual capabilities of the technology. This is meant to contrast with discussions about AI and law that are decidedly futurist in nature.”
Sela, Ayelet, E-Nudging Justice: The Role of Digital Choice Architecture in Online Courts (March 18, 2019). 2019 Journal of Dispute Resolution 127 ( 2019). Available at SSRN: https://ssrn.com/abstract=3414176
“Justice systems around the world are launching online courts and tribunals in order to improve access to justice, especially for self-represented litigants (SRLs). Online courts are designed to handhold SRLs throughout the process and empower them to make procedural and substantive decisions. To that end, they present SRLs with streamlined and simplified procedures and employ a host of user interface design and user experience strategies (UI/UX). Focusing on these features, the article analyzes online courts as digital choice environments that shape SRLs’ decisions, inputs and actions, and considers their implications on access to justice, due process and the impartiality of courts. Accordingly, the article begins to close the knowledge gap regarding choice architecture in online legal proceedings….”
DOJ: Review Focuses on Practices that Create or Maintain Structural Impediments to Greater Competition and User Benefits – The Department of Justice announced today that the Department’s Antitrust Division is reviewing whether and how market-leading online platforms have achieved market power and are engaging in practices that have reduced competition, stifled innovation, or otherwise harmed consumers. The Department’s review will consider the widespread concerns that consumers, businesses, and entrepreneurs have expressed about search, social media, and some retail services online. The Department’s Antitrust Division is conferring with and seeking information from the public, including industry participants who have direct insight into competition in online platforms, as well as others.
“Without the discipline of meaningful market-based competition, digital platforms may act in ways that are not responsive to consumer demands,” said Assistant Attorney General Makan Delrahim of the Antitrust Division. “The Department’s antitrust review will explore these important issues.” The goal of the Department’s review is to assess the competitive conditions in the online marketplace in an objective and fair-minded manner and to ensure Americans have access to free markets in which companies compete on the merits to provide services that users want. If violations of law are identified, the Department will proceed appropriately to seek redress…”
The Guardian – Use of keycards and self-service scanners cannot replace librarians, say campaigners – “Harriet Connides hasn’t been to her local library in north London’s East Finchley for months. She used to go every few days, often with her young daughter, but now it is staffed for only 16 hours a week and Connides, who has severe mobility problems, is uncomfortable being in there alone. “I don’t feel safe here any more. If I fall, I don’t know what would happen,” she says. The disabled toilets are also closed during unstaffed hours. “It’s another avenue cut off from someone who already has a lot of avenues cut off,” says Connides. East Finchley is one of about 150 libraries across the country now using “open library” technology to introduce unstaffed hours. This means you can access buildings, even if there are no library staff present, with your library card and a pin number and use self-service scanners to return and check out books. With local authorities under strain from cuts, full-time library staff numbers have fallen by 33% since 2010, and open libraries are on the rise. Essex county council is the latest to consider “smart library” technology after residents, backed by authors including David Baddiel and Jacqueline Wilson, successfully campaigned against library closures earlier this month. Worcestershire county council announced last week it is also looking at self-service, unstaffed hours…”
The New York Times – Eggs vibrate in response to parental alarm calls, then pass on the warning to nearby eggs. “On Sálvora Island, off the coast of Spain, thousands of yellow-legged gulls dot the grassy cliffs from April to late July. It is a riot of white wings and plaintive calls. Occasionally, the chorus changes as the seabirds engage in courtship and chick-feeding. And when the adults notice a predator, such as a dusky-coated mink, the chorus shifts again, to a characteristic alarm call — ha-ha-ha. These acoustic cues reach not just young and adult gulls but unhatched embryos, too. In 2018, researchers found that when gull eggs hatch, the ones that were exposed to alarm calls were able to crouch and hide from predators a couple of seconds faster than others. A few other bird species, including quails, fairywrens and zebra finches, are known to relay similar cues about the environment to their unhatched young, to prepare hatchlings to fend for themselves. But embryos aren’t receiving wisdom only from their parents. A new study, published Monday in the journal Nature Ecology & Evolution, suggests that they’re also receiving cues from nearby unhatched siblings…”
The New York Times: “The Food and Drug Administration almost never tests products itself. But in May, the Journal of the American Medical Association published the results of a randomized trial, conducted by F.D.A. researchers, to determine whether the chemicals in four commercially available sunscreens are absorbed through the skin into the bloodstream. Four times daily, subjects were coated in one of the formulas in an amount determined to be the maximum a person might use: two milligrams per square centimeter of skin over 75 percent of the body. Later, blood samples were drawn and analyzed. All of the sunscreen chemicals were detected in concentrations that exceeded an F.D.A. threshold past which manufacturers are required to do further toxicology tests. “People who use sunscreens very reasonably presume they have been tested and are safe and effective,” says Kanade Shinkai, a dermatologist at the University of California, San Francisco, and an author of an editorial accompanying the JAMA study. “And we don’t really have that evidence.”
Legally, the U.S. regards sunscreen as a drug, meaning a substance “intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease” — in this case, sunburn and skin cancer — and/or one that affects “the structure or any function of the body.” Until 1962, drugs could be sold in the U.S. without any data to support claims of their efficacy. But that year, reports that a sedative called thalidomide had caused severe birth defects in thousands of babies in Western Europe led to the Kefauver-Harris Amendment to the Federal Food, Drug and Cosmetic Act, which requires drug makers to satisfy the F.D.A. that their products are safe and effective before they go on sale…”
CFPB: “The Consumer Financial Protection Bureau (Bureau) released a report [Market Snapshot: Third-Party Debt Collections Tradeline Reporting] that found that more than one-in-four consumers with a credit report have at least one debt in collection by third-party debt collectors. Today’s report, which covers 2004 to 2018, is drawn from the Bureau’s Consumer Credit Panel (CCP), a nationally representative sample of approximately 5 million de-identified credit records maintained by one of the three nationwide credit reporting companies. Close to 900 third-party debt collectors furnished collection tradelines in the CCP. A tradeline is information about a consumer account that is sent, generally on a regular basis, to a credit reporting company. Tradelines contain data such as account balance, payment history, and status of the account.
Today’s findings show that more than one-in-four consumers (28 percent) with a credit report in the CCP in 2018 had at least one third-party collections tradeline on their file. The study also found that more than three-out-of-four third-party collections tradelines are for non-financial debt. More than half (58 percent) of these tradelines are for medical debt and another 20 percent for telecommunications or utilities debt. Positive payment information is generally not furnished for medical or telecommunications debt…”
Pew – Many Americans think declining trust in the government and in each other makes it harder to solve key problems. They have a wealth of ideas about what’s gone wrong and how to fix it: “Trust is an essential elixir for public life and neighborly relations, and when Americans think about trust these days, they worry. Two-thirds of adults think other Americans have little or no confidence in the federal government. Majorities believe the public’s confidence in the U.S. government and in each other is shrinking, and most believe a shortage of trust in government and in other citizens makes it harder to solve some of the nation’s key problems. As a result, many think it is necessary to clean up the trust environment: 68% say it is very important to repair the public’s level of confidence in the federal government, and 58% say the same about improving confidence in fellow Americans.
Even as they express doleful views about the state of trust today, many Americans believe the situation can be turned around. Fully 84% believe the level of confidence Americans have in the federal government can be improved, and 86% think improvement is possible when it comes to the confidence Americans have in each other. Among the solutions they offer in their open-ended comments: muffle political partisanship and group-centered tribalism, refocus news coverage away from insult-ridden talk shows and sensationalist stories, stop giving so much attention to digital screens and spend more time with people, and practice empathy. Some believe their neighborhoods are a key place where interpersonal trust can be rebuilt if people work together on local projects, in turn radiating trust out to other sectors of the culture…”
“When Fast Company introduced the 100 Most Creative People in Business 10 years ago, it was a watershed. Other business publications ranked individuals by wealth or power, but this publication sought to take stock of something intangible and, as then editor Bob Safian explained, offer a “snapshot of the range and depth of creativity across our business landscape….I recently asked Bernstein if, 10 years on, she worried about finding people who were accomplished, compelling, and creative enough to make the cut. (Each year we highlight 100 all-new “MCPs”—no repeats, and they can’t be people we’ve previously featured in print.) She shook her head emphatically: As long as there are problems that need solving and determined leaders viewing the world through a unique lens, there will be enough people to ensure that each of our 100 Most Creative People in Business lists remains a watershed…”
Washington Post: “President Trump believes the Constitution gives him a wide breadth of power. That’s the message he delivered ― not for the first time — on Tuesday while addressing a crowd of teenagers and young adults at the Turning Point USA Teen Student Action Summit in Washington. There are numerous viral video clips from Trump’s 80-minute speech at the conference, but one of the most controversial moments came as he discussed Article II of the Constitution, which describes the powers of the president. Trump lamented the duration and cost of the investigation of Russian interference in the 2016 presidential election led by special counsel Robert S. Mueller III, which he has repeatedly said found “no collusion, no obstruction.” “Then, I have an Article II, where I have to the right to do whatever I want as president,” he said. “But, I don’t even talk about that.” Political pundits flooded social media with that clip, though most of the videos didn’t include the Mueller-probe context. Trump in his Tuesday speech also attacked “the Squad” and falsely claimed Democrats saw wins in the 2018 elections because undocumented immigrants voted “many times — not just twice.”
Article II grants the president “executive power.” It does not indicate the president has total power. Article II is the same part of the Constitution that describes some of Congress’s oversight responsibilities, including over the office of the presidency. It also details how the president may be removed from office via impeachment…”
Inc: “Phishing scams are nothing new. In fact, we’ve all heard about the “Nigerian prince” phishing emails that have been showing up in inboxes for years. Unfortunately, phishing attacks continue to increase exponentially in volume, and are considered a serious threat to both companies and individual internet users since they can result in devastating financial losses. In addition, phishing emails can be much harder to recognize than many business owners think. Cybercriminals have resorted to increasingly sophisticated phishing strategies as of late to get recipients to open, click, and share malicious code. And these tactics are paying off handsomely. Business email compromise (BEC) scams are more successful than ever, with losses reaching $2.7 billion in 2018. Here are some common phishing trends that business owners should know about and tips for educating employees about them…”
Washington Post Daily Dot: “China has reached parity with the United States on this year’s Fortune Global 500 list, which dropped this morning. “As the Chinese Century nears its third decade, Fortune’s Global 500 shows how profoundly the world’s balance of power is shifting,” Geoff Colvin writes in the magazine. “American companies account for 121 of the world’s largest corporations by revenue. Chinese companies account for 129 (including 10 Taiwanese companies). For the first time since the debut of the Global 500 in 1990, and arguably for the first time since World War II, a nation other than the U.S. is at the top of the ranks of global big business. That shift is transforming not just the business world but the whole world. … The No. 1 nationality among the top 50 companies in this year’s Global 500 is American; among the bottom 50, it’s Chinese. Those companies near the bottom are rising quickly, and like their country, they’re burning with ambition.”
Also via the Washington Post Daily Dot – “The New York Times reports that Chinese investment in the United States has plummeted by nearly 90 percent since Trump took office: “The falloff, which is being felt broadly across the economy, stems from tougher regulatory scrutiny in the United States and a less hospitable climate toward Chinese investment, as well Beijing’s tightened limits on foreign spending. It is affecting a range of industries including Silicon Valley start-ups, the Manhattan real estate market and state governments that spent years wooing Chinese investment, underscoring how the world’s two largest economies are beginning to decouple after years of increasing integration.”
McPeak, Agnieszka, The Internet Made Me Do It: Reconciling Social Media and Professional Norms for Lawyers, Judges, and Law Professors (May 1, 2019). Idaho Law Review, Vol. 55, No. 2, 2019. Available at SSRN: https://ssrn.com/abstract=3418088
“Social media platforms operate under their own social order. Design decisions and policies set by platforms steer user behavior. Additionally, members of online communities set informal expectations that form a unique set of norms. These social media norms—like oversharing, disinhibition, and anonymity—become common online, even though similar conduct might be shunned in the real world. For lawyers, judges, and law professors, a different set of norms apply to both their online and offline conduct. Legal ethics rules, codes of judicial conduct, workplace policies, and general professionalism expectations dictate behavior for legal professionals. Collectively, these professional norms set a higher bar—one that fundamentally clashes with ever-evolving social media norms. This conflict between social media and professional norms must be reconciled in order for lawyers, judges, and law professors to avoid online missteps. This essay examines the clash between the norms of social media conduct with the constraints of professional norms. By doing so, it hopes to help lawyers, judges, and law professors reconcile their real-world roles with their online behavior and offers some guidance for maintaining professionalism across the board.”
Birnhack, Michael D. and Perez, Oren and Perry, Ronen and Teichman, Doron, Ranking Legal Publications: The Israeli Inter-University Committee Report (July 18, 2019). Available at SSRN: https://ssrn.com/abstract=3422168
“The Report offers a global ranking of academic legal publications, covering more than 900 outlets, and using a four-tier categorization. The ranking is based on a combined quantitative and qualitative methodology. The Report was composed in the context of the Israeli academic system, but the methodology and the results are not jurisdiction-specific. Evaluating academic publications is a never-ending challenge. Such evaluation is an integral part of internal hiring, promotion, and tenure procedures, and of external funding decisions and institutional rankings. The proper way to evaluate academic publications has been the subject of fierce debate. The traditional method for academic evaluation is specific review of each publication, assessing its originality, rigor, and significance. This method, known as “peer-review”, is often difficult to perform and might be subjective and biased. These concerns have generated an increased interest in the use of quantitative indicators in research evaluation. However, notwithstanding its scientific allure, the use of quantitative measures to assess research has been heavily criticized by the academic community for losing sight of the intrinsic value of academic work, for ignoring distinct “citation communities” in various fields, and for creating perverse incentives that could actually undermine scientific innovation and reward mediocre work. Evaluation of legal scholarship faces particular challenges due to the absence of comprehensive, universally endorsed, quantitative rankings of law journals and the fundamental bifurcation into peer-reviewed and student-edited journals. The challenges are further complicated in non-English speaking jurisdictions, such as Israel, where scholars publish in both their local language and English, in domestic and foreign journals…”
“On July 22, 2019, the Association of Research Libraries (ARL) and the University of Virginia (UVA) Library released this white paper, The Law and Accessible Texts: Reconciling Civil Rights and Copyrights, authored by Brandon Butler (UVA), Prue Adler (ARL), and Krista Cox (ARL). This white paper, part of a project supported by a grant from The Andrew W. Mellon Foundation, analyzes how institutions of higher education can meet their mission of providing all students with equitable access to information within the current legal framework. Ensuring access to research and learning materials is critical in protecting the civil rights of people with disabilities.”
MyShingle – Nicole Black: “Earlier this week, I lead a roundtable discussion on Artificial Intelligence in Legal Research and Law Practice at the American Association of Law Librarians (AALL) which took place in Washington D.C. I was grateful for the invitation from @robtruman, the law librarian at the Lewis & Clark Law School because the event forced me to review all of the posts on AI and law practice that I’ve been meaning to read and because any opportunity to talk about AI – which is the work that my husband studied back in grad school in the late ‘80s before the subject was ready for prime time – is always a privilege. In this post, I’ll share some of the information in AI that I gathered in preparation for my talk. One of MyShingle’s missions has always been to ensure that solo and small firms have current information not just on new technology developments but also on how those new tools can be applied in practice. And because AI is such a fast-moving target that many solo and small firm lawyers haven’t yet had a chance to wrap their heads around, I’ve written a multi-part post that will cover everything that solo and small firm lawyers need to know…”
The internet is surprisingly fragile, crashes thousands of times a year, and no one is making it stronger
Phys.org: “How could a small internet service provider (ISP) in Pennsylvania cause millions of websites worldwide to go offline? That’s what happened on June 24, 2019 when users across the world were left unable to access a large fraction of the web. The root cause was an outage suffered by Cloudflare, one of the internet’s leading content hosts on which the affected websites relied. Cloudflare traced the problem to a regional ISP in Pennsylvania that accidentally advertised to the rest of the internet that the best available routes to Cloudflare were through their small network. This caused a massive volume of global traffic to the ISP, which overwhelmed their limited capacity and so halted Cloudfare’s access to the rest of the internet. As Cloudflare remarked, it was the internet equivalent of routing an entire freeway through a neighbourhood street. This incident has highlighted the shocking vulnerability of the internet. In 2017 alone there were about 14,000 of these kinds of incidents. Given it is mission-critical for much of the world’s economic and social life, shouldn’t the net be designed to withstand not just minor hiccups but also major catastrophes, and to prevent small problems turning into much bigger ones? Governing bodies such as the EU Agency for Network and Information Security (ENISA) have long warned of the risk of such cascading incidents in causing systemic internet failure. Yet the internet remains worryingly fragile…”
Library of Congress CRS Reports – Bankruptcy and Student Loans, July 1, 2019. “As overall student loan indebtedness in the United States has increased over the years, many borrowers have found themselves unable to repay their student loans. Ordinarily, declaring bankruptcy is a means by which a debtor may discharge—that is, obtain relief from—debts he is unable to repay. However, Congress, based upon its determination that allowing debtors to freely discharge student loans in bankruptcy could threaten the student loan program, has limited the circumstances in which a debtor may discharge a student loan. Under current law, a debtor may not discharge a student loan unless repaying the student loan would impose an “undue hardship” upon the debtor and his dependents. The Bankruptcy Code does not define “undue hardship,” and the legislative history of the relevant statutory provision does not precisely specify how courts should determine whether a debtor qualifies for an undue hardship discharge. The task of interpreting this statutory term has consequently fallen to the federal judiciary. Courts, however, have disagreed regarding exactly what a debtor must prove in order to discharge a student loan on undue hardship grounds. The vast majority of courts have interpreted “undue hardship” to require the debtor to prove three things: (1) the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for himself and his dependents if forced to repay the loans; (2) additional circumstances exist indicating that the debtor’s inability to pay is likely to persist for a significant portion of the repayment period of the student loans; and (3) the debtor has made good faith efforts to repay the loans. The debtor must prove each of these elements by a preponderance of the evidence. This standard is commonly called the “Brunner” test, after the case in which the standard originated. The Brunner test is highly fact-intensive, and not all courts apply the Brunner standard the same way. Indeed, each factor has resulted in various subsidiary splits in the courts with respect to a host of issues.
Whereas the vast majority of courts apply the Brunner test to determine whether excepting a student loan from discharge would impose an undue hardship upon the debtor, two courts have explicitly declined to adopt the Brunner standard. Instead, these courts apply an alternative standard known as “the totality-of-the-circumstances test,” weighing numerous, nonexclusive factors when considering whether student loan debt should be discharged. In response to this split of authority, as well as calls to make student loans less difficult to discharge in bankruptcy, some Members of Congress and commentators have advanced various proposals to amend or repeal the Bankruptcy Code’s undue hardship provision. These proposals implicate a variety of legal issues that Congress may consider.
The New York Times Climate Newsletter – July 19, 2019: “We recently told you about a study that looked at how many more trees could grow on Earth and how much carbon they could absorb from the atmosphere. The answer: The planet has room for about 2.5 billion acres of forest, and all those trees could suck up an additional 200 gigatons of carbon. While that wouldn’t solve climate change, it would be a huge help. That kind of reforestation would be a monumental global undertaking, but every single tree still counts. They all sequester carbon. So, if you plant a tree, what kind should it be? Peter Del Tredici, senior research scientist emeritus at the Arnold Arboretum at Harvard University said that, for trees to sequester a lot of carbon, they need to live long and healthy lives. “You want a tree that is going to survive in your climate with the minimum amount of maintenance,” he said. To have a meaningful effect, he said, a tree must live at least 10 to 20 years. “It takes that long for a tree to build up enough foliage so that it can have a substantial impact on the environment,” Dr. Del Tredici said. With that in mind, oaks can be great in the Northeast, while ficus trees might work better in Southern California. In the Northwest, just about everything does well. Nonnative, noninvasive species like the ginkgo tree are good options, too…
…The Arbor Day Foundation has a plenty of tools — like a best-tree finder and a hardiness zone look-up — to help identify the right tree for the right place. The Department of Agriculture’s I-Tree lets you design your optimal tree placement. Another useful exercise is simply to walk around an arboretum or botanical garden to get a sense of what you like. A nursery can be a great resource as well…”
Brookings – “From 2000 to 2018, the labor force participation rate of 16- to 64-year-olds fell 3.6 percentage points. In previous work, we have shown that declining labor force participation among young people contributed substantially to this decline. In this analysis, we describe how teenagers (16–19-year-olds) have shifted away from working or seeking work and the impact this shift has had on the aggregate labor force participation rate. While declining summer employment is part of the story, the bulk of the teenage reduction in labor force participation comes from fewer teenagers being jointly enrolled in school and participating in the labor force during the academic year. We find that—despite the low teen share of the working-age population (8 percent)—if teens had still participated in the labor force at their 2000 rates, aggregate 16–64-year-old participation would be more than 1.3 percentage points higher. Many factors are at play in the decline of teen labor force participation, including increased school enrollment, seasonal employment, decreased returns to work, reduced demand for low-wage work, minimum wage hikes, and competition from older workers or immigrants. Time pressure is another driver of reduced teen participation. Teens have many demands on their time and those demands fundamentally differ between the academic year and summer….”