Hassle

Before police perform a search or seizure, they typically must meet the probable cause or reasonable suspicion standard. Moreover, even if they meet the appropriate standard, their evidence must be individualized to the suspect and cannot rely on purely probabilistic inferences. Scholars and courts have long defended the distinction between individualized and purely probabilistic evidence, but existing theories of individualization fail to articulate principles that are descriptively accurate or normatively desirable. They overlook the only benefit that the individualization requirement can offer: reducing hassle. Hassle measures the chance that an innocent person will experience a search or seizure. Because some investigation methods meet the relevant suspicion standards but nevertheless impose too many stops and searches on the innocent, courts must have a lever independent from the suspicion standard to constrain the scope of criminal investigations. The individualization requirement has unwittingly performed this function, but not in an optimal way. Individualization has kept hassle low by entrenching old methods of investigation. Because courts designate practices as individualized when they are costly (for example, gumshoe methods) or lucky (for example, tips), the requirement has confined law enforcement to practices that cannot scale. New investigation methods such as facial-recognition software and pattern-based data mining, by contrast, can scale up law-enforcement activities very quickly. Although these innovations have the potential to increase the accuracy of stops and searches, they may also increase the total number of innocent individuals searched because of the innovations’ speed and cost-effectiveness. By reforming individualization to minimize hassle, courts can enable law-enforcement innovations that are fairer and more accurate than traditional police investigations without increasing burdens on the innocent

The New Intrusion

The article focuses on a new taxonomy introduced for organizing privacy regulations across several stages of information flow including observation, capture and dissemnation. It states that the tort of intrusion imposes liability upon seclusion offers and provides recourse for the observation of data. It also highlights the application of intrusion on modern settings such as web tracking technologies and global positioning systems

Snake Oil Speech

Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but has given wide latitude to state actors to regulate all but the most accepted and well supported claims in advertising. This Article shows that the interests in speech and safety alike would be better served by switching from the truth-oriented set of rules that apply today to a risk orientation. While risk and falsity are obviously related, they are not substitutes. The transition to a risk analysis would better match longstanding First Amendment traditions that permit state interests in avoiding harm to outweigh speech interests while maintaining epistemic modesty. The practical effect of this shift would be to permit more regulation in public discourse and less in commercial speech

The Algorithm Game

Most of the discourse on algorithmic decisionmaking, whether it comes in the form of praise or warning, assumes that algorithms apply to a static world. But automated decisionmaking is a dynamic process. Algorithms attempt to estimate some difficult-to-measure quality about a subject using proxies, and the subjects in turn change their behavior in order to game the system and get a better treatment for themselves (or, in some cases, to protest the system.) These behavioral changes can then prompt the algorithm to make corrections. The moves and countermoves create a dance that has great import to the fairness and efficiency of a decision-making process. And this dance can be structured through law. Yet existing law lacks a clear policy vision or even a coherent language to foster productive debate. This Article provides the foundation. We describe gaming and countergaming strategies using credit scoring, employment markets, criminal investigation, and corporate reputation management as key examples. We then show how the law implicitly promotes or discourages these behaviors, with mixed effects on accuracy, distributional fairness, efficiency, and autonomy

The Quiet Resignation: Why Do So Many Female Lawyers Abandon Their Careers?

Thirty percent of female lawyers leave their careers. The same is true for female doctors. Over time, an increasing number of married professionals have recreated traditional gender roles, and society has lost a tremendous amount of training and well-honed talent as a result. Neither workplace discrimination nor family obligations can fully and satisfactorily explain the trend. Both of those theories assume that women take a more dependent and vulnerable position in the household because of constraints, but in one important respect, men are more constrained than women, and they are better off for it: to maintain social status, men have to work. Women do not. This Article advances a theory and corroborating evidence that the cultural acceptance of female underemployment is a privilege in the abstract, but a curse in practice. Even under the best conditions, the early stages of professional careers involve mistakes, mismatches, and disappointments. An opportunity to escape the stress of the public sphere by focusing on the family may have great appeal in the short run even though the long-run consequences are severe. Asymmetric cultural acceptance creates an easy off-ramp for females, to nearly everybody’s detriment

Tort Liability for Physical Harm to Police Arising From Protest: Common-Law Principles for a Politicized World

When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts to overturn the results of the U.S. presidential election. In the other, a Baton Rouge police officer suffered traumatic brain injury when he was hit by an object thrown by an unidentified protester during a Black Lives Matter protest that sought to block a highway in front of police headquarters.In this article, Professors Bublick and Bambauer argue that courts analyzing common-law liability claims for physical injuries suffered by police in the highly political circumstances of protest, would be well-advised to work through a list of content-neutral questions. Such a list could help courts maximize states’ legitimate interests in officer safety, while minimizing impacts on protestors’ legitimate First Amendment activity. We juxtapose these political contexts to create an analytical framework that recognizes the threats involved, to both speech and safety, without as great a risk of ideological distortion. Courts in both the January 6th case and the Black Lives Matter case have failed to accommodate both physical safety interests and First Amendment issues