Category Archive: Postscript

An Uneasy Dance with Data: Racial Bias in Criminal Law – Postscript (Comment) by Joseph J. Avery

Businesses and organizations expect their managers to use data science to improve and even optimize decisionmaking. Yet when it comes to some criminal justice institutions, such as prosecutors’ offices, there is an aversion to applying cognitive computing to high-stakes decisions. This aversion reflects extra-institutional forces, as activists and scholars are militating against the use of predictive analytics in criminal justice. The aversion also reflects prosecutors’ unease with the practice, as many prefer that decisional weight be placed on attorneys’ experience and intuition, even though experience and intuition have contributed to more than a century of criminal justice disparities.

Instead of viewing historical data and data-hungry academic researchers as liabilities, prosecutors and scholars should treat them as assets in the struggle to achieve outcome fairness. Cutting-edge research on fairness in machine learning is being conducted by computer scientists, applied mathematicians, and social scientists, and this research forms a foundation for the most promising path towards racial equality in criminal justice: suggestive modeling that creates baselines to guide prosecutorial decisionmaking.

Technology-Enabled Coin Flips for Judging Partisan Gerrymandering – Postscript (Comment) by Wendy K. Tam Cho

Akin to every other legal issue that comes before the Court, reconciling the state’s discretion and the Supreme Court’s role in judicial review requires a judicially manageable standard that allows the Court to determine when a legislature has overstepped its bounds. Without a judicially discoverable and manageable standard, the Court is unable to develop clear and coherent principles to form its judgments, and challenges to partisan gerrymandering would thus be non-justiciable.

In the partisan gerrymandering context, such a standard needs to discern between garden-variety and excessive use of partisanship. The Court has stated that partisanship may be used in redistricting, but it may not be used “excessively.” In Vieth v. Jubelirer, Justice Scalia clarified, “Justice Stevens says we ‘er[r] in assuming that politics is ‘an ordinary and lawful motive’ in districting,’ but all he brings forward to contest that is the argument that an excessive injection of politics is unlawful. So it is, and so does our opinion assume.” Justice Souter, in a dissent joined by Justice Ginsburg, expressed a similar idea: courts must intervene, he says, when “partisan competition has reached an extremity of unfairness.”

At oral argument in Rucho, attorney Emmet Bondurant argued that “[t]his case involves the most extreme partisan gerrymander to rig congressional elections that has been presented to this Court since the one-person/one-vote case.” Justice Kavanaugh replied, “when you use the word ‘extreme,’ that implies a baseline. Extreme compared to what?”

Herein lies the issue that the Court has been grappling with in partisan gerrymandering claims. What is the proper baseline against which to judge whether partisanship has been used excessively? And how can this baseline be incorporated into a judicially manageable standard?

The Undesirability of Mandatory Time-Based Sunsets in Dual Class Share Structures: A Reply to Bebchuck and Kastiel – Postscript (Comment) by Bernard S. Sharfman

In a 2017 Virginia Law Review article, The Untenable Case for Perpetual Dual-Class Stock, Professors Lucian Bebchuk and Kobi Kastiel argued that time-based sunset provisions (the forced unification of shares into one share structure with equal voting rights after a certain period of time) should be a mandatory feature of dual class share structures (classes of common stock with unequal voting rights). This article has recently been used as authority by the Council of Institutional Investors (“CII”) to petition to the NASDAQ Stock Market (“NASDAQ”) and the New York Stock Exchange (“NYSE”) to amend their listing standards. The requested amendments would require companies seeking to go public with dual class shares to include in their certificates of incorporation a time-based sunset provision that would go into effect no more than seven years after the initial public offering (“IPO”) unless minority shareholders vote to extend it up to an additional seven years. This delayed unification based on a shareholder vote is incorporated in Bebchuk and Kastiel’s argument. 

This Article, which is based on comment letters I sent in response to the CII’s petitions, argues that such a mandatory provision would be extremely unwise and harmful to our most important public companies and their shareholders, current as well as future. As a creation of private ordering, the absence of time-based sunset provisions in dual class share structures serves a significant value enhancing purpose. It prevents the risk that a premature and therefore sub-optimal unification of shares may occur. This risk has so far been ignored by those advocating for the implementation of a mandatory time-based sunset provision. As subsequently discussed, this risk has been ignored because their analysis lacks an appreciation for how the positive skewness in stock market returns negatively impacts the value of mandatory time-based sunset provisions.

Filling the California Ninth Circuit Vacancies – Postscript (Comment) by Carl Tobias

At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Office labeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge Alex Kozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.

Limited clarity about whether more judges will leave active service over Trump’s presidency suggests that additional confirmations may be necessary; however, the selection process’s stunning politicization will compromise this initiative. For example, when the tribunal enjoined Trump’s controversial determinations which excluded immigrants from seven predominately Muslim nations, he excoriated multiple jurists of the circuit. Trump afforded numerous candidates, but merely three have received approval, partly because home state Democratic politicians retained “blue slips” when the White House minimally consulted. The vacancies—which exceed seventeen percent, and three California openings, which are ten—show the crucial need to fill more vacancies.

Crushing Creativity: The Blurred Lines Case and Its Aftermath – Postscript (Comment) by Edwin F. McPherson

On March 10, 2015, the music world was stunned when a jury in Federal District Court in Los Angeles rendered a verdict in favor of the heirs of Marvin Gaye against Pharrell Williams and Robin Thicke, who, along with rapper Clifford Harris, Jr., professionally known as “T.I.,” wrote the 2013 mega-hit song entitled “Blurred Lines.” The eight-member jury unanimously found that Williams and Thicke had infringed the copyright to Marvin Gaye’s “Got To Give It Up.” On appeal, the Ninth Circuit Court of Appeals affirmed the verdict and recently rejected Williams and Thicke’s Petition for Rehearing en banc.

The case is significant for a number of reasons. In typical music copyright cases—at least successful ones—the two works share the same (or at least a similar) sequence of pitches, with the same (or at least similar) rhythms, set to the same chords. The Blurred Lines case was unique, in that the two works at issue did not have similar melodies; the two songs did not even share a single melodic phrase. In fact, the two works did not have a sequence of even two chords played in the same order, for the same duration. They had entirely different song structures (meaning how and where the verse, chorus, etc. are placed in the song) and did not share any lyrics whatsoever.

Book Review: Law and Legitimacy in the Supreme Court by Richard H. Fallon, Jr. – Postscript (Comment) by André LeDuc

Richard Fallon has written another important book about American constitutional law. Indeed, it brings to mind Hilary Putnam’s definition of a classic: the smarter you get, the smarter it gets. Fallon presents a rich, thick description of our constitutional law and practice and an argument for how we may best continue and improve this practice. While intended to be accessible to a broad readership, Fallon’s arguments cut to the core of much current constitutional scholarship, even while urging us to move past many of these sterile debates. Most importantly, Fallon takes seriously his mission of speaking to the Court, as well as to the academy, and takes a real run at changing how the Justices decide cases and articulate their decisions. He accomplishes all of this in a startlingly concise book, running only 174 pages of text and 36 pages of notes and without even a subtitle.

Fallon sets out to explain the nature of constitutional law, the constitutional disagreements of cases, constitutional argument, and the nature of the legitimacy of Supreme Court decisions and, ultimately, the Court itself. That’s a tall order for a little book, but Fallon can make a claim to have accomplished his mission.

Supreme Court Reform: Desirable—And Constitutionally Required – Postscript (Comment) by David Orentlicher

As decisions by—and appointments to—the Supreme Court have become increasingly divisive, many observers have renewed calls for reform. For example, we could replace lifetime tenure with non-renewable terms of eighteen years, such that one term ends every two years. That way, less would be at stake with each nomination, Justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents. Or we could establish a non-partisan, judicial nominating commission.

Concerns about the Supreme Court are not new, but increasing political polarization and partisan maneuvering over the two most recent Court appointments have accentuated tensions. With the legitimacy of the Court at stake, reform to depoliticize the Court seems essential. And whichever reform is promoted, it is generally assumed that implementation would require a constitutional amendment, legislation, or a change in Senate rules.

But the conventional wisdom is wrong. There is a sound argument to be made that Supreme Court reform is constitutionally required.

Profound Sophistication or Legal Sophistry? – Postscript (Comment) by Ediberto Roman, Katryna Santa Cruz, Melissa Gonzalez & Dianet Torres

In the midst of growing debate and—according to widely publicized news accounts—growing evidence against President Donald Trump’s impeachment, esteemed former Harvard Law Professor and public intellectual, Alan Dershowitz, recently published The Case Against Impeaching Trump. In this brief, but passionate, defense of the President, Professor Dershowitz provides arguably the strongest legal argument against impeaching the Forty-Fifth President of the United States. Professor Dershowitz’s argument, while beautifully written, is largely a selectively applied textualist attempt to thwart the mounting evidence against President Trump and his administration.

The Weintraub Principle: Attorney-Client Privilege and Government Entities – Postscript (Comment) by Jason Batts

Amidst the backdrop of a federal investigation into the actions of President Donald Trump, a previously unexplored legal question has emerged on a topic that forms the foundation of legal practice: Can a succeeding government official revoke a predecessor’s claim of the attorney-client privilege? Although the question is novel, its role within the government context is well established—having been asserted by Presidents Richard Nixon and Bill Clinton in their respective administrations. The context of current events, however, underscores the need to further define the operation of a privilege that is once again being relied upon by a president under investigation.

Strategic Law Avoidance Using the Internet: A Short History – Postscript (Response) by Tim Wu

We are now some twenty years into the story of the Internet’s bold challenge to law and the legal system. In the early 2000s, Jack Goldsmith and I wrote Who Controls the Internet, a book that might be understood as a chronicle of some the early and more outlandish stages of the story. Professors Pollman and Barry’s excellent article, Regulatory Entrepreneurship, adds to and updates that story with subsequent chapters and a sophisticated analysis of the strategies more recently employed to avoid law using the Internet in some way. While Pollman and Barry’s article stands on its own, I write this Article to connect these two periods. I also wish to offer a slightly different normative assessment of the legal avoidance efforts described here, along with my opinion as to how law enforcement should conduct itself in these situations.

Behind regulatory entrepreneurship lies a history, albeit a short one, and one that has much to teach us about the very nature of law and the legal system as it interacts with new technologies. Viewed in context, Pollman and Barry’s “regulatory entrepreneurs” can be understood as, in fact, a second generation of entrepreneurs who learned lessons from an earlier generation that was active in the late 1990s and early 2000s. What both generations have in common is the idea that the Internet might provide profitable opportunities at the edges of the legal system. What has changed is the abandonment of so-called “evasion” strategies—ones that relied on concealment or geography (described below)—and a migration to strategies depending on “avoidance,” that is, avoiding the law’s direct application. In particular, the most successful entrepreneurs have relied on what might be called a mimicry strategy: they shape potentially illegal or regulated conduct to make it look like legal or unregulated conduct, thereby hopefully avoiding the weight of laws and regulatory regimes.