Legal Writing: The Journal of the Legal Writing Institute, Mar 1, 2018
The legal profession and the legal academy stress the importance of clear writing as a substantia... more The legal profession and the legal academy stress the importance of clear writing as a substantial component of effective law practice. But does clear writing translate into effective lawyering? This study takes a novel approach by using lawyers’ writing to measure the quality of legal advocacy. It is the only study to do so at the trial court level, where most lawyers practice, and is the first to track the difference in the readability of opposing parties’ briefs in the same case. After earlier studies of appellate brief quality and success on appeal yielded conflicting results, our study provides a clear association between brief readability and favorable outcomes on summary judgment motions. The study focuses on summary judgment motions because they offer a clear dichotomous outcome: the motions are either granted or denied. After controlling for attorney experience, law firm size, and a lawyer’s status as a repeat player before the motion judge, we find a statistically significant correlation between brief readability and summary judgment decisions.
This chapter discusses the implications of predictive analytics for consumer privacy and surveys ... more This chapter discusses the implications of predictive analytics for consumer privacy and surveys the existing law that could reach predictive analytics in ecommerce. Part II summarizes the prevailing theoretical accounts of privacy. Part III introduces predictive analytics and illustrates its potential uses in ecommerce. Part IV examines how using predictive analytics in ecommerce affects consumer privacy. Part V examines how existing state and federal law could reach merchants’ use of predictive analytics in ecommerce. Finally, Part VI concludes by summarizing the uncertain application of existing law to predictive analytics.
Filing post-trial motions complicates the appellate process. Certain motions toll the 30-day dead... more Filing post-trial motions complicates the appellate process. Certain motions toll the 30-day deadline to notice an appeal, which seems good since who doesn\u27t want more time? But the extension comes with a cost. Those same motions void any notice of appeal filed before the motions are decided. That means that we forfeit the right to appeal unless we file a new notice
This Article discusses the implications of predictive analytics for consumer privacy in e-commerc... more This Article discusses the implications of predictive analytics for consumer privacy in e-commerce and surveys potential regulatory responses. Part I introduces predictive analytics and illustrates its potential uses in e-commerce. Predictive analytics helps merchants operate efficiently and maximize profits, but also risks denying consumers important commercial benefits. Part II examines how predictive analytics harms consumer privacy. The prevailing theoretical accounts define privacy as the ability to control what others know about you and recognize privacy’s role in promoting personal autonomy and dignity. Predictive analytics harms privacy as control because individuals cannot know what the data they share will ultimately predict. In addition, predictive analytics harms consumer autonomy and dignity because it deprives them of significant commercial benefits based on secret formulas, and risks automating societal discrimination. Finally, Part III examines potential regulatory r...
The National Security Agency’s bulk data collection programs disclosed in 2013 suggest a new mode... more The National Security Agency’s bulk data collection programs disclosed in 2013 suggest a new model of surveillance. This “predictive surveillance” model will apply the emerging field of predictive analytics to the vast datasets in the hands of third parties. Unlike traditional surveillance, predictive surveillance will not begin by targeting individuals based on particularized suspicion. Instead, predictive surveillance will first collect and analyze all available data to find patterns that could predict future events. In light of the NSA’s emphasis on data analysis and its existing stores of telephone and Internet communications metadata, it seems inevitable that the government will eventually advocate for predictive surveillance in antiterrorism investigations. This Article contends that the existing framework of surveillance regulation cannot adapt to predictive surveillance because the existing framework presumes that surveillance begins with targeting. The Article next assesses...
The goal of this Article is to promote an emerging field of legal writing scholarship: the empiri... more The goal of this Article is to promote an emerging field of legal writing scholarship: the empirical study of legal writing. Reading this Article should not make you an expert in qualitative or quantitative research methods. Instead, it should highlight the possibilities for future empirical legal writing scholarship and offer enough of an introduction to inspire new empirical researchers. Even if you do not plan to conduct your own empirical research, this Article should make you a more informed consumer of empirical scholarship. This Article does not suggest that empirical research is easy. However, with careful attention to methodology, empirical research methods can yield potentially valuable findings. Given the talent and energy among legal writing faculty, we are well positioned to study what lawyers write, and the lawyers who read and write it.Part I introduces empirical research methods. This part first locates empirical methods within the existing fields of legal writing sc...
Data aggregation has played a role in several recent cases implicating one’s reasonable expectati... more Data aggregation has played a role in several recent cases implicating one’s reasonable expectation of privacy under the Fourth Amendment. First, in United States v. Jones, five Supreme Court Justices relied on aggregation to depart from the public expo-sure doctrine and hold that long-term, warrantless GPS tracking violated the Fourth Amendment. Second, in Riley v. California, a unanimous Supreme Court relied on aggregation to depart from the search incident to arrest exception to the warrant requirement and hold that a warrantless search of an arrestee’s cell phone or smart phone violated the Fourth Amendment. Finally, in Commonwealth v. Augustine, the Supreme Judicial Court of Massachusetts relied on aggregation to depart from the third-party doctrine and hold that obtaining cell site location information (CSLI) without a war-rant violated the Fourth Amendment. Although these cases involved different doctrines, each court relied on data aggregation to depart from existing Fourth ...
Data aggregation has played a role in several recent cases implicating one’s reasonable expectati... more Data aggregation has played a role in several recent cases implicating one’s reasonable expectation of privacy under the Fourth Amendment. Although the cases involved disparate doctrines, they all relied on data aggregation to depart from pre-existing Fourth Amendment jurisprudence. This essay considers where the aggregation principle will take us next. After referencing the emerging debates over cell site location information, the essay considers the implications of the aggregation principle for the following types of surveillance practices: short-term, individualized location tracking; short-term but large-scale location tracking; future location tracking technologies; and the aggregation of non-location information such as communications metadata.
Recent controversies have led to public outcry over the risks of online manipulation. Leaked Face... more Recent controversies have led to public outcry over the risks of online manipulation. Leaked Facebook documents discussed how advertisers could target teens when they feel particularly insecure or vulnerable. Cambridge Analytica suggested that its psychographic profiles enabled political campaigns to exploit individual vulnerabilities online. And researchers manipulated the emotions of hundreds of thousands of Facebook users by adjusting the emotional content of their news feeds. This Article attempts to inform the debate over whether and how to regulate online manipulation of consumers. Part II details the history of manipulative marketing practices and considers how innovations in the Digital Age allow marketers to identify, trigger, and exploit individual biases in real time. Part III surveys prior definitions of manipulation and then defines manipulation as an intentional attempt to influence a subject’s behavior by exploiting a bias or vulnerability. Part IV considers why online manipulation justifies some form of regulatory response. Part V identifies the significant definitional and constitutional challenges that await any attempt to regulate online manipulation directly. The Article concludes by suggesting that the core objection to online manipulation is not its manipulative nature but its online implementation. Therefore, the Article suggests that, rather than pursuing direct regulation, we add the threat of online manipulation to the existing arguments for comprehensive data protection legislation.
This essay explores several dimensions of the debate between security and privacy that accompanie... more This essay explores several dimensions of the debate between security and privacy that accompanies many anti-terrorism and law enforcement proposals. The debate is often framed, either implicitly or explicitly, as a balancing of the tangible harms that a security proposal would prevent, against the intangible harms that an intrusion on privacy would cause. This approach presents the choice between, for example, the disastrous effects of a terrorist airline hijacking, and the relatively minor feeling of discomfort that might flow from presenting a national ID card before boarding. Given those limited choices, what right-thinking person would not choose the latter? This framework of balancing tangible against intangible harms is not merely a rhetorical strategy selected by the proponents of security measures. It is also a way of understanding the debate that flows naturally from the perception that privacy is a mere abstraction, a luxury with little concrete value.This essay focuses on three ways in which the tangible-versus-intangible decision making framework both overvalues security and undervalues privacy. First, the framework is incomplete because it fails to account for the many unintended consequences that usually flow from security measures. The cumulative effect of those unintended consequences gradually erodes society's very conception of privacy. Yet the tangible-versus-intangible framework implicitly focuses on short-term benefits and consequences, necessarily excluding the long-term effects on privacy.Second, the contextual specificity that characterizes the tangible-versus- intangible framework overemphasizes the harms on the tangible side of the scale. By embedding the choice between security and privacy in a concrete factual context (such as boarding a plane), the framework all but guarantees that people will decide to guard against the tangible harms.Finally, the framework draws a false distinction between tangible breaches of security and intangible intrusions on privacy. In fact, the tangible results that security proposals promise are often empirically suspect. Instead, security proposals serve largely intangible goals, such as allaying people's fears. In contrast, privacy intrusions can have quite tangible consequences that disrupt and inhibit social behavior.
The case of United States v. Jones led the United States Supreme Court to a crossroads in its Fou... more The case of United States v. Jones led the United States Supreme Court to a crossroads in its Fourth Amendment jurisprudence. The Jones Court had to decide whether law enforcement’s use of a GPS device to monitor a suspect’s vehicle around the clock for a month constituted a “search” within the meaning of the Fourth Amendment. The case presented a potential collision between two different approaches to identifying Fourth Amendment searches.The first is a “location-driven” approach in which government intrusions into private locations constitute Fourth Amendment searches, while government observations from outside private locations do not. In Katz v. United States, the Court rejected a strictly “location-driven” approach and instead reasoned that the Fourth Amendment protects “people, not places.” Although the Court has nominally applied the Katz “reasonable expectations” test for the last four decades, the Court’s post-Katz surveillance cases have largely returned to the location-driven approach.Had the Court continued this location-driven approach, it would have held that GPS monitoring in public spaces was not a Fourth Amendment search, on the theory that people have no expectation of privacy while in a public space. However, one can read the Court’s post-Katz decisions to support a second approach, a “situation-based” approach, that is better suited to deal with changing technologies and is more faithful to the “reasonable expectations” test that the Court purports to apply. In a fractured decision, a majority in Jones adopted the situation-based approach and held that the government’s long-term use of GPS monitoring violated the defendant’s reasonable expectation of privacy in his movements over time along public roads.
Legal Writing: The Journal of the Legal Writing Institute, Mar 1, 2018
The legal profession and the legal academy stress the importance of clear writing as a substantia... more The legal profession and the legal academy stress the importance of clear writing as a substantial component of effective law practice. But does clear writing translate into effective lawyering? This study takes a novel approach by using lawyers’ writing to measure the quality of legal advocacy. It is the only study to do so at the trial court level, where most lawyers practice, and is the first to track the difference in the readability of opposing parties’ briefs in the same case. After earlier studies of appellate brief quality and success on appeal yielded conflicting results, our study provides a clear association between brief readability and favorable outcomes on summary judgment motions. The study focuses on summary judgment motions because they offer a clear dichotomous outcome: the motions are either granted or denied. After controlling for attorney experience, law firm size, and a lawyer’s status as a repeat player before the motion judge, we find a statistically significant correlation between brief readability and summary judgment decisions.
This chapter discusses the implications of predictive analytics for consumer privacy and surveys ... more This chapter discusses the implications of predictive analytics for consumer privacy and surveys the existing law that could reach predictive analytics in ecommerce. Part II summarizes the prevailing theoretical accounts of privacy. Part III introduces predictive analytics and illustrates its potential uses in ecommerce. Part IV examines how using predictive analytics in ecommerce affects consumer privacy. Part V examines how existing state and federal law could reach merchants’ use of predictive analytics in ecommerce. Finally, Part VI concludes by summarizing the uncertain application of existing law to predictive analytics.
Filing post-trial motions complicates the appellate process. Certain motions toll the 30-day dead... more Filing post-trial motions complicates the appellate process. Certain motions toll the 30-day deadline to notice an appeal, which seems good since who doesn\u27t want more time? But the extension comes with a cost. Those same motions void any notice of appeal filed before the motions are decided. That means that we forfeit the right to appeal unless we file a new notice
This Article discusses the implications of predictive analytics for consumer privacy in e-commerc... more This Article discusses the implications of predictive analytics for consumer privacy in e-commerce and surveys potential regulatory responses. Part I introduces predictive analytics and illustrates its potential uses in e-commerce. Predictive analytics helps merchants operate efficiently and maximize profits, but also risks denying consumers important commercial benefits. Part II examines how predictive analytics harms consumer privacy. The prevailing theoretical accounts define privacy as the ability to control what others know about you and recognize privacy’s role in promoting personal autonomy and dignity. Predictive analytics harms privacy as control because individuals cannot know what the data they share will ultimately predict. In addition, predictive analytics harms consumer autonomy and dignity because it deprives them of significant commercial benefits based on secret formulas, and risks automating societal discrimination. Finally, Part III examines potential regulatory r...
The National Security Agency’s bulk data collection programs disclosed in 2013 suggest a new mode... more The National Security Agency’s bulk data collection programs disclosed in 2013 suggest a new model of surveillance. This “predictive surveillance” model will apply the emerging field of predictive analytics to the vast datasets in the hands of third parties. Unlike traditional surveillance, predictive surveillance will not begin by targeting individuals based on particularized suspicion. Instead, predictive surveillance will first collect and analyze all available data to find patterns that could predict future events. In light of the NSA’s emphasis on data analysis and its existing stores of telephone and Internet communications metadata, it seems inevitable that the government will eventually advocate for predictive surveillance in antiterrorism investigations. This Article contends that the existing framework of surveillance regulation cannot adapt to predictive surveillance because the existing framework presumes that surveillance begins with targeting. The Article next assesses...
The goal of this Article is to promote an emerging field of legal writing scholarship: the empiri... more The goal of this Article is to promote an emerging field of legal writing scholarship: the empirical study of legal writing. Reading this Article should not make you an expert in qualitative or quantitative research methods. Instead, it should highlight the possibilities for future empirical legal writing scholarship and offer enough of an introduction to inspire new empirical researchers. Even if you do not plan to conduct your own empirical research, this Article should make you a more informed consumer of empirical scholarship. This Article does not suggest that empirical research is easy. However, with careful attention to methodology, empirical research methods can yield potentially valuable findings. Given the talent and energy among legal writing faculty, we are well positioned to study what lawyers write, and the lawyers who read and write it.Part I introduces empirical research methods. This part first locates empirical methods within the existing fields of legal writing sc...
Data aggregation has played a role in several recent cases implicating one’s reasonable expectati... more Data aggregation has played a role in several recent cases implicating one’s reasonable expectation of privacy under the Fourth Amendment. First, in United States v. Jones, five Supreme Court Justices relied on aggregation to depart from the public expo-sure doctrine and hold that long-term, warrantless GPS tracking violated the Fourth Amendment. Second, in Riley v. California, a unanimous Supreme Court relied on aggregation to depart from the search incident to arrest exception to the warrant requirement and hold that a warrantless search of an arrestee’s cell phone or smart phone violated the Fourth Amendment. Finally, in Commonwealth v. Augustine, the Supreme Judicial Court of Massachusetts relied on aggregation to depart from the third-party doctrine and hold that obtaining cell site location information (CSLI) without a war-rant violated the Fourth Amendment. Although these cases involved different doctrines, each court relied on data aggregation to depart from existing Fourth ...
Data aggregation has played a role in several recent cases implicating one’s reasonable expectati... more Data aggregation has played a role in several recent cases implicating one’s reasonable expectation of privacy under the Fourth Amendment. Although the cases involved disparate doctrines, they all relied on data aggregation to depart from pre-existing Fourth Amendment jurisprudence. This essay considers where the aggregation principle will take us next. After referencing the emerging debates over cell site location information, the essay considers the implications of the aggregation principle for the following types of surveillance practices: short-term, individualized location tracking; short-term but large-scale location tracking; future location tracking technologies; and the aggregation of non-location information such as communications metadata.
Recent controversies have led to public outcry over the risks of online manipulation. Leaked Face... more Recent controversies have led to public outcry over the risks of online manipulation. Leaked Facebook documents discussed how advertisers could target teens when they feel particularly insecure or vulnerable. Cambridge Analytica suggested that its psychographic profiles enabled political campaigns to exploit individual vulnerabilities online. And researchers manipulated the emotions of hundreds of thousands of Facebook users by adjusting the emotional content of their news feeds. This Article attempts to inform the debate over whether and how to regulate online manipulation of consumers. Part II details the history of manipulative marketing practices and considers how innovations in the Digital Age allow marketers to identify, trigger, and exploit individual biases in real time. Part III surveys prior definitions of manipulation and then defines manipulation as an intentional attempt to influence a subject’s behavior by exploiting a bias or vulnerability. Part IV considers why online manipulation justifies some form of regulatory response. Part V identifies the significant definitional and constitutional challenges that await any attempt to regulate online manipulation directly. The Article concludes by suggesting that the core objection to online manipulation is not its manipulative nature but its online implementation. Therefore, the Article suggests that, rather than pursuing direct regulation, we add the threat of online manipulation to the existing arguments for comprehensive data protection legislation.
This essay explores several dimensions of the debate between security and privacy that accompanie... more This essay explores several dimensions of the debate between security and privacy that accompanies many anti-terrorism and law enforcement proposals. The debate is often framed, either implicitly or explicitly, as a balancing of the tangible harms that a security proposal would prevent, against the intangible harms that an intrusion on privacy would cause. This approach presents the choice between, for example, the disastrous effects of a terrorist airline hijacking, and the relatively minor feeling of discomfort that might flow from presenting a national ID card before boarding. Given those limited choices, what right-thinking person would not choose the latter? This framework of balancing tangible against intangible harms is not merely a rhetorical strategy selected by the proponents of security measures. It is also a way of understanding the debate that flows naturally from the perception that privacy is a mere abstraction, a luxury with little concrete value.This essay focuses on three ways in which the tangible-versus-intangible decision making framework both overvalues security and undervalues privacy. First, the framework is incomplete because it fails to account for the many unintended consequences that usually flow from security measures. The cumulative effect of those unintended consequences gradually erodes society's very conception of privacy. Yet the tangible-versus-intangible framework implicitly focuses on short-term benefits and consequences, necessarily excluding the long-term effects on privacy.Second, the contextual specificity that characterizes the tangible-versus- intangible framework overemphasizes the harms on the tangible side of the scale. By embedding the choice between security and privacy in a concrete factual context (such as boarding a plane), the framework all but guarantees that people will decide to guard against the tangible harms.Finally, the framework draws a false distinction between tangible breaches of security and intangible intrusions on privacy. In fact, the tangible results that security proposals promise are often empirically suspect. Instead, security proposals serve largely intangible goals, such as allaying people's fears. In contrast, privacy intrusions can have quite tangible consequences that disrupt and inhibit social behavior.
The case of United States v. Jones led the United States Supreme Court to a crossroads in its Fou... more The case of United States v. Jones led the United States Supreme Court to a crossroads in its Fourth Amendment jurisprudence. The Jones Court had to decide whether law enforcement’s use of a GPS device to monitor a suspect’s vehicle around the clock for a month constituted a “search” within the meaning of the Fourth Amendment. The case presented a potential collision between two different approaches to identifying Fourth Amendment searches.The first is a “location-driven” approach in which government intrusions into private locations constitute Fourth Amendment searches, while government observations from outside private locations do not. In Katz v. United States, the Court rejected a strictly “location-driven” approach and instead reasoned that the Fourth Amendment protects “people, not places.” Although the Court has nominally applied the Katz “reasonable expectations” test for the last four decades, the Court’s post-Katz surveillance cases have largely returned to the location-driven approach.Had the Court continued this location-driven approach, it would have held that GPS monitoring in public spaces was not a Fourth Amendment search, on the theory that people have no expectation of privacy while in a public space. However, one can read the Court’s post-Katz decisions to support a second approach, a “situation-based” approach, that is better suited to deal with changing technologies and is more faithful to the “reasonable expectations” test that the Court purports to apply. In a fractured decision, a majority in Jones adopted the situation-based approach and held that the government’s long-term use of GPS monitoring violated the defendant’s reasonable expectation of privacy in his movements over time along public roads.
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