Archive for the ‘Stanford Law Review’ Category

Three Paradoxes of Big Data

October 9, 2013 Comments off

Three Paradoxes of Big Data
Source: Stanford Law Review (via SSRN)

Big data is all the rage. Its proponents tout the use of sophisticated analytics to mine large data sets for insight as the solution to many of our society’s problems. These big data evangelists insist that data-driven decisionmaking can now give us better predictions in areas ranging from college admissions to dating to hiring to medicine to national security and crime prevention. But much of the rhetoric of big data contains no meaningful analysis of its potential perils, only the promise. We don’t deny that big data holds substantial potential for the future, and that large dataset analysis has important uses today. But we would like to sound a cautionary note and pause to consider big data’s potential more critically. In particular, we want to highlight three paradoxes in the current rhetoric about big data to help move us toward a more complete understanding of the big data picture. First, while big data pervasively collects all manner of private information, the operations of big data itself are almost entirely shrouded in legal and commercial secrecy. We call this the Transparency Paradox. Second, though big data evangelists talk in terms of miraculous outcomes, this rhetoric ignores the fact that big data seeks to identify at the expense of individual and collective identity. We call this the Identity Paradox. And third, the rhetoric of big data is characterized by its power to transform society, but big data has power effects of its own, which privilege large government and corporate entities at the expense of ordinary individuals. We call this the Power Paradox. Recognizing the paradoxes of big data, which show its perils alongside its potential, will help us to better understand this revolution. It may also allow us to craft solutions to produce a revolution that will be as good as its evangelists predict.

The Drone as Privacy Catalyst

March 22, 2012 Comments off

The Drone as Privacy Catalyst (PDF)
Source: Stanford Law Review

Recent shifts in technology and attendant changes to business practices have not led to similar shifts in privacy law, at least not on the order of 1890. Computers, the Internet, RFID, GPS, biometrics, facial recognition—none of these developments has created the same sea change in privacy thinking. One might reasonably wonder whether we will ever have another Warren and Brandeis moment, whether any technology will dramatize the need to rethink the very nature of privacy law.

One good candidate is the drone. In routine use by today’s military, these unmanned aircraft systems threaten to perfect the art of surveillance. Drones are capable of finding or following a specific person. They can fly patterns in search of suspicious activities or hover over a location in wait. Some are as small as birds or insects, others as big as blimps. In addition to high-resolution cameras and microphones, drones can be equipped with thermal imaging and the capacity to intercept wireless communications.

That drones will see widespread domestic use seems inevitable. They represent an efficient and cost-effective alternative to helicopters and airplanes. Police, firefighters, and geologists will—and do—use drones for surveillance and research. But drones will not be limited to government or scientific uses. The private sector has incentives to use drones as well. The media, in particular, could make widespread use of drones to cover unfolding police activity or traffic stories. Imagine what drones would do for the lucrative paparazzi industry, especially coupled with commercially available facial recognition technology.

What Judges Think of the Quality of Legal Representation

March 19, 2011 Comments off

What Judges Think of the Quality of Legal Representation
Source: Stanford Law Review

Studying the legal profession poses several challenges. The evolution of law has moved lawyers away from a generalist practice towards increased specialization. This makes it difficult to compare lawyers across different practice areas meaningfully and to provide a comprehensive assessment of the legal profession. Judges are well situated to provide such an evaluation, given their experience and scope of cases. This Article reports the responses of federal and state judges to a survey we conducted in 2008. The questions relate to their perceptions of the quality of legal representation, generally and in criminal and civil cases; how the quality of legal representation influences how they and juries decide cases; and their recommendations for change in the profession. We find that judges perceive significant disparities in the quality of legal representation, both within and across areas of the law. In many instances, the underlying causes of these disparities can be traced to the resources of the litigants. The judges’ responses also suggest that they respond differently than juries to these disparities, and that the effect of these disparities on juries may be more pronounced in civil than in criminal cases.

+ Full Paper (PDF)