Why Judicial Review Fails: Organizations, Politics, and the Problem of Auditing Executive Discretion

Every day executive branch officials make thousands of decisions affecting our security and welfare. Homeland security officials screen tens of thousands of people at the border. They decide whose name gets on government “no fly lists.” Agencies freeze suspected terrorist assets, choose what companies to inspect for environmental violations, and decide whom to prosecute. This article describes how judicial review predictably and systematically fails to prevent abuse and promote organizational learning when government officials make many such choices using their discretion to target individuals or groups. It then proposes the use of quasi-judicial audits of executive discretion as a remedy. While it is rare that discretionary decisions are entirely immune from some kind of judicial review, courts’ role is often so circumscribed or deferential that the probability of uncovering problems almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some decisions no doubt benefit from the speed and accountability that results from limiting judicial intervention. Yet judicial review’s evisceration probably makes it easier for some government officials to subtly manipulate their discretion to promote appealing political impressions, for others to engage in outright malfeasance, and for still other (more virtuous) officials to simply fail to learn from their mistakes – whether these arise in deciding who to charge with a federal crime, who to designate as an enemy combatant, or how much money to freeze in a suspicious charity’s account. The reliance on judicial review to manage discretion makes it hard to address these concerns in part because courts routinely define much of their work in terms of applying the same standard of deference to every case in a particular class, making it difficult to increase the stringency of review in some policy domains without making the costs allegedly prohibitive. As a conceptual alternative, I propose a framework for systematically auditing samples of discretionary decisions and making those results public. Audits help sever the connection between the perceived costs of encroaching on discretion and the stringency of review, and avoid the potentially distorted picture of bureaucratic activity created by a litigation-driven process. These properties make audits a promising supplement to judicial review in those instances where it is plausible to believe that more could be learned from incisively studying a subset of cases instead of superficially reviewing more of them. Despite their potential value, such audits are almost never done by existing federal audit bureaucracies (the congressional Government Accountability Office and the department-specific Inspector General Offices), nor does the legislature seem to do them itself in connection with oversight hearings. I conclude by discussing some of the political and bureaucratic dynamics working against these audits and suggesting how they may be weakened

The Embarrassing Rule Against Perpetuities

The Rule Against Perpetuities offers an opportunity for those who teach property or trusts and estates to review some of the major schools of jurisprudence and how accurately or inaccurately those schools characterize law and legal development. At first blush, the idea that the rule can be used to advance a student\u27s mastery or consideration of theory seems absurd. But this essay will outline an innovative approach to the rule that allows those who teach it to mix theory in with the difficult problems that the rule creates. The modern pedagogical approach to the rule treats it as an embarrassment -- the difficult family problem that is not discussed in public. Teachers see it as bad medicine that must be dispensed and swallowed quickly, and different teachers vary on how much of the rule\u27s technicalities they think the student should master (or at least endure). Students share the bad medicine view of the rule. Ask students what subject within property they hated most, and most will answer that it was the Rule Against Perpetuities. Indeed, it might rank as the most-hated doctrine studied in the first year of law school (although the Erie doctrine might give it a run for its money). Arcane in origin, difficult to understand and apply, unintuitive, and seemingly random in its effect, the rule brings together many of the difficulties that students have in adjusting to the rigors of legal study. Students joke about it, have nightmares about it, and learn through rumor that the rule is so complicated that, when they are in practice, they will not be held liable for malpractice if they draft an instrument that is subsequently held void because of the rule. Graduating third-year students frequently say-in all seriousness-that they will gladly spot the bar examiners any perpetuities problems and try to gain credit elsewhere on the exam rather than try to relearn the rule. In sum, students cannot understand why they have to endure the rule except as some kind of horrible historical accident of which they are the most recent victims. They certainly cannot explain what the rule means or does not mean from a jurisprudential standpoint-if ever they consider or are invited by their teachers to contemplate jurisprudence. Of course, some might question the propriety of introducing jurisprudence into the first year. Some people believe that the first year should consist primarily of building-block courses, i.e., courses that introduce students to basic legal rules that will appear in private practice and on the bar exam. Others believe that the first year should introduce students to legal skills or to legal reasoning and schools of jurisprudence more generally, giving the students a broader view of law as a whole before they leap into a specific advanced area. These approaches are not mutually exclusive, and teachers often use basic courses in the first year as an introduction to a school or several schools of jurisprudence along with an introduction to doctrine and skills. The typical courses offered in the first year lend themselves to this approach, and Property is no exception. For example, nuisance provides good material to introduce students to the Coase theorem and law and economics; marital property law provides good material to introduce feminist jurisprudence; zoning provides good material to illustrate concepts in public choice theory. Textbooks for Property offer the teacher tools for taking this approach to introducing jurisprudence. The Dukeminier and Krier text has an excerpt of Harold Demsetz\u27s economic account of the development of private property (along with critiques of it); Joseph Singer\u27s text offers a good overview of the law-and-economics approach to nuisance law, as well as a critique of that approach; and the Cribbet text begins with two chapters devoted to different views of what constitutes property and what are the attributes of property. Once the text hits the Rule Against Perpetuities, however, theory apparently stops, and I suspect that theory stops in classroom instruction as well. Property texts attempt to streamline presentation of the rule more through problems than through cases. Most property teachers gear their teaching of the rule to its basic mechanics, simply to get their students through the material, prepare them for the questions that they might face on the bar exam, and thus help them avoid embarrassment. Because of its complexity, the rule has generated its own set of specialized secondary study materials simply to explain how the rule works. Students can use CALI exercises or buy supplemental texts, workbooks, flashcards, outlines, or sample problems, to help them through these rough waters, all in an effort to avoid embarrassment on the final exam or on the bar exam. Property teachers whose primary field is not property or trusts and estates might also hew closely to the text and prepared problems to avoid being embarrassed themselves because they do not know the answer to a variation on one of the problems. There is, however, another deeper embarrassment that the rule creates: no major school of jurisprudence can comprehensively explain the origins of the rule, why such a complicated rule continues to persist, why the rule does not appear in jurisdictions other than those with an English common law heritage but why it does not appear in all of those, and why it has not been abolished or reformed until recently, and why reform or abandonment has occurred where it has occurred and when it has occurred. Each school of jurisprudence may be able to answer one or more of the preceding questions, but none provides a comprehensive explanation for the existence and persistence of this complicated conundrum. The rule thus provides property teachers an opportunity to invite their students to take a step back from staring into the abyss of perpetuities problems and consider different theoretical attempts to define why the law looks the way it does and whether different schools of theory accurately capture the entire picture. The Rule Against Perpetuities might embarrass not just law professors and law students; it might also embarrass schools of legal thought. In this essay I start by briefly describing the history of the rule, the standard problems that students confront, and some of the places where the rule is found geographically. The conclusions of this discussion are that the rule is fairly incoherent from a policy perspective and that it has not been widely adopted except in portions of the British Commonwealth and the United States. I then identify a few modern schools of jurisprudence -- specifically law and economics, public choice theory, critical legal/race/feminist studies, the theory of legal transplants, and comparative institutional analysis -- and show how each fails to explain the rule comprehensively

Linear programming algorithms for lower previsions

The thesis begins with a brief summary of linear programming, three methods for solving linear programs (the simplex, the affine scaling and the primal-dual methods) and a brief review of desirability and lower previsions. The first contribution is to improve these algorithms for efficiently solving these linear programming problems for checking avoiding sure loss. To exploit these linear programs, I can reduce their size and propose novel improvements, namely, extra stopping criteria and direct ways to calculate feasible starting points in almost all cases. To benchmark the improvements, I present algorithms for generating random sets of desirable gambles that either avoid or do not avoid sure loss. Overall, the affine scaling and primal-dual methods benefit from the improvements, and they both outperform the simplex method in most scenarios. Hence, I conclude that the simplex method is not a good choice for checking avoiding sure loss. If problems are small, then there is no tangible difference in performance between all methods. For large problems, the improved primal-dual method performs at least three times faster than any of the other methods. The second contribution is to study checking avoiding sure loss for sets of desirable gambles derived from betting odds. Specifically, in the UK betting market, bookmakers usually provide odds and give a free coupon, which can be spent on betting, to customers who first bet with them. I investigate whether a customer can exploit these odds and the free coupon in order to make a sure gain, and if that is possible, how can that be achieved. To answer this question, I view these odds and the free coupon as a set of desirable gambles and present an algorithm to check whether and how such a set incurs sure loss. I show that the Choquet integral and complementary slackness can be used to answer these questions. This can inform the customers how much should be placed on each bet in order to make a sure gain. As an illustration, I show an example using actual betting odds in the market where all sets of desirable gambles derived from those odds avoid sure loss. However, with a free coupon, there are some combinations of bets that the customers could place in order to make a guaranteed gain. I also consider maximality which is a criterion for decision making under uncertainty, using lower previsions. I study two existing algorithms, one proposed by Troffaes and Hable (2014), and one by Jansen, Augustin, and Schollmeyer (2017). For the last contribution in the thesis, I present a new algorithm for finding max- imal gambles and provide a new method for generating random decision problems to benchmark these algorithms on generated sets. To find all maximal gambles, Jansen et al. solve one large linear program for each gamble, while in Troffaes and Hable, and also in our new algorithm, this can be done by solving a larger sequence of smaller linear programs. For the second case, I apply efficient ways to find a common feasible starting point for this sequence of linear programs from the first contribution. Exploiting these feasible starting points, I propose early stopping criteria for further improving efficiency for the primal-dual method. For benchmarking, we can generate sets of gambles with pre-specified ratios of maximal and interval dominant gambles. I investigate the use of interval dominance at the beginning to eliminate non-maximal gambles. I find that this can make the problem smaller and benefits Jansen et al.’s algorithm, but perhaps surprisingly, not the other two algorithms. We find that our algorithm, without using interval dominance, outperforms all other algorithms in all scenarios in our benchmarking

Does the Fault System Optimally Control Primary Accident Costs?

Energy supply in Sweden year 2011 amounted to 577 TWh. The final energy consumption for industrial, residential and service was 379 TWh. Sweden has energy policy goals to reduce energy use in buildings. One of these goals is to reduce the energy use by 20 % in 2020 compared to the year 1995. An important step to achieve this goal is to target energy efficiency measures in existing buildings. There are also financial incentives to implement energy efficiency measures due to the fact that the cost of energy represents 30-40% of a buildings maintenance costs. In general, up to 20 % of the energy consumption can be reduced without major reconstruction. In this master thesis project presented here, an energy audit was performed and energy efficiency measures was proposed for an existing building located at Järfälla, Stockholm. The property belongs to SAAB - Defence and Security. They have an internal target to reduce energy use in their buildings with 50 % by 2015 compared to 2009. The work of this master thesis project was limited to a building locally termed hus A. This part of the property is the oldest and was built in 1968, but has expanded gradually to the year 1977. Hus A contains of offices, a production hall, laboratories and storage areas. The energy audit showed that the electricity use is far greater in hus A, compared to the an average office and administration building. This is mainly due to production processes. A breakdown of the highest electricity consumers are: Industrial processes – 61.9 kWh/m2/year Lighting – 35.7 kWh/m2/year Fans – 33.2 kWh/m2/year Refrigeration – 21.8 kWh/m2/year Compressed air – 18.9 kWh/m2/year Computer units – 7.8 kWh/m2/year Frequency converters – 4.4 kWh/m2/year Waste heat from industrial processes, primarily from the production hall leads to high cooling demand to maintain good thermal comfort. Limitations in operation control of the buildings HVAC (Heating, Cooling and Air-conditioning) systems causes high heating and cooling demand and hence the buildings thermal mass is not properly utilized. Energy saving measures was mainly focused on increasing the controlling capability of HVAC systems. By implementing the energy efficiency measures presented in this master thesis report, building thermal mass will be more efficiently utilized. In addition, end use of electricity, heat and cooling will be reduced. In total, seven energy-saving measures proposed.  One measure is implemented to prevent heating and cooling at the same time. A brief description of the energy efficiency measures and the expected result is found below. Adjust set point for TAFA301 Energy saving: 94.0 MWh/yearPayback time: 0 year Establish time schedule for compressed air systemEnergy saving: 110.8 MWh/yearPayback time: 2.5 months Demand controlled temperature set point to heating systemEnergy saving: 167.0 MWh/yearPayback time: 3.5 months Demand control of airflow in the production hallEnergy saving: 155,5 MWh/yearPayback time: 2 years and 10 months Establish time schedule for frequency invertersEnergy saving: 104.0 MWh/yearPayback time: 3 years and 2 months Radiator thermostats to the first part of the production hall Energy saving: 6.5 MWh/yearPayback time: 5 years and 2 months Demand control of airflow in conference roomsEnergy saving: 11.0 MWh/yearPayback time: 12 years and 2 month

Reporting Suicide Worldwide: Media Responsibilities

Guidelines, training and ethical issues raised by the latest review of research about the impact of media coverage on suicidal behaviour

Could There Ever be an App for that? Consent Apps and the Problem of Sexual Assault

Rape and sexual assault are major problems. In the majority of sexual assault cases consent is the central issue. Consent is, to borrow a phrase, the ‘moral magic’ that converts an impermissible act into a permissible one. In recent years, a handful of companies have tried to launch consent apps which aim to educate young people about the nature of sexual consent and allow them to record signals of consent for future verification. Although ostensibly aimed at addressing the problems of rape and sexual assault on university campuses, these apps have attracted a number of critics. In this paper, I subject the phenomenon of consent apps to philosophical scrutiny. I argue that the consent apps that have been launched to date are unhelpful because they fail to address the landscape of ethical and epistemic problems that arise in the typical rape or sexual assault case: they produce distorted and decontextualised records of consent which may in turn exacerbate the other problems associated with rape and sexual assault. Furthermore, because of the tradeoffs involved, it is unlikely that app-based technologies could ever be created that would significantly address the problems of rape and sexual assault

Optometric referrals - how, when and to whom refer a patient?

Els optometristes posseeixen l’equipament i els coneixements necessaris per a proporcionar un examen visual complert i, així detectar la necessitat de derivar a un pacient, si escau. Una derivació optomètrica és la clau per aconseguir un examen ocular complementari, evitar riscos per al pacient i obtenir un diagnòstic complert, per part d’un professional amb coneixements en altres àrees. Un diagnòstic precoç, la tria de proves necessàries i un ràpid tractament són essencials per a prevenir, reduir emergències, minimitzar danys i pèrdues visuals d’una derivació ocular urgent. Un fals positiu és aquell pacient que ha estat inicialment diagnosticat amb una patologia però resulta absent desprès d’una avaluació complementària i extensa. Els optometristes amb poca experiència han de ser curosos perquè són els que tendeixen a generar un major nombre de falsos positius. D’acord amb la precisió i l’adequació de les derivacions optomètriques, cal considerar que, la falta d’informació redueix la efectivitat de moltes derivacions. Quan un optometrista ha de derivar un pacient és necessari escriure un informe de derivació. Aquest, ha d’incloure tota la informació clínica rellevant que permeti entendre el cas derivat. Depenent de a qui vagi dirigida la derivació del pacient, l’informe de derivació haurà de seguir una estructura o una d’altre. Quan arriba el moment d’informar al pacient, una comunicació efectiva és la clau per l’èxit d’un bon desenvolupament del procés. Per concloure, com a professionals, els optometristes tenen un Codi d’Ètics i de Conducta, el qual indica i argumenta pautes, proporcionant solucions per a les necessitats dels pacients i el seu benestar

Teaching Legal Ethics: Exploring the Continuum

Spaeth et al assert that the only reason to teach legal ethics, or professional responsibility, is to try to make the legal profession more worthy of its stated ideals. The University of Pennsylvania Law School Center on Professionalism\u27s efforts to achieve this are discussed