Saturday, December 17, 2022
Automation & Higher Ed
I was delighted to see this thoughtful review of my new book The Equality Machine in Inside Higher Ed focused on some of the questions nearest and dearest to prawfs' hearts: the future of the professor and higher education as AI becomes more and more part of our learning and teaching. In The Equality Machine, I have a chapter that considers robots and automation in education but does not delve into universities and higher ed. Here's the review:
If the dream of creating high-quality/low-cost scaled online programs is ever to be realized, artificial intelligence—AI—will likely be the key enabling technology. The job of the AI in a scaled (high-enrollment) online course will be to optimally connect the instructor to the learner. The AI will determine when the human instructor should coach, encourage and engage with the learner—and when to hold back. The professor and the AI will collaborate to scale the relational model of learning that is the secret sauce of effective instructional practices.
Integrating faculty and AI to scale quality online learning is, to my knowledge, today more an idea than a reality. After reading The Equality Machine, however, I’m more hopeful than ever that this vision will come to fruition. While not focusing on higher education, the book provides enough examples of the transformative powers of digital technology to enhance human flourishing that some level of academic techno-optimism may be warranted.
Lobel, a law professor at U of San Diego, sets out to counter the conventional wisdom that technologies like AI offer more threats than benefits. The book traces a range of examples where the principled and ethical use of big data analysis and AI are being utilized for progressive aims. Examples include using digital technologies to expose and correct discrimination in hiring, promotion and compensation. Gender and racial pay and position gaps can be more effectively addressed with good data, enabling employers and employees visibility into the persistent labor market inequities.
Some of the most powerful examples of the potential for digital technologies to improve well-being described in The Equality Machine come from the domain of health and health care. Lobel describes the efforts of pioneering physicians and researchers to pair clinicians with algorithms for earlier diagnosis and individualized treatments. Soon, AI-enabled medical devices such as insulin pumps will dynamically adjust dosage levels to avoid health crises for diabetics before they occur.
Likely the most controversial parts of The Equality Machine will be Lobel’s thinking on the future of sex robots. As with the entire book, Lobel’s thinking on technologically enabled intimacy bots is nuanced, balanced and complicated. She examines the negatives of reinforcing existing sexist and racist stereotypes of the sex-tech industry but ultimately comes down on the side of optimism. Smart sex robots have the potential to relieve loneliness and enhance happiness, and their creation should be met with less fear and more thought, debate and discussion.
While The Equality Machine seeks to offer a positive vision for technology in advancing social justice, equality and happiness—the book is by no means a defense of big tech. Lobel is highly skeptical that the tech industry will prioritize inclusive and pro-social applications and systems in the absence of scrutiny, regulation and advocacy. The book offers ideas about how to engage with the tech industry to shift incentives toward promoting equitable design.
In reading The Equality Machine, I kept wishing for Lobel to turn her analytical lens to issues of tech, companies and higher education. What might we envision as the role of platform companies, big data and AI in creating accessible, affordable and high-quality online degree programs? Where are the artificial intelligence and university leadership communities coming together? How might we extend the idea of creating equality machines to the working of higher education?
Posted by Orly Lobel on December 17, 2022 at 05:44 AM | Permalink | Comments (0)
Friday, December 16, 2022
Infield Fly strikes again
Writing about the Infield Fly Rule produced one key takeaway--it is everywhere. Once we see what defines the play and warrants a rule change--unexpected action, substantial advantage and exclusive control to actor, inability to counter--it is easy to find other sports responding to similar plays with similar rules changes.
The NFL offers the latest example. It "reinterpreted" a rule to prohibit teams from holding the ball on top of (as opposed to on) the kicking tee on kickoffs. This placed the ball an extra 1/2-inch off the ground (1 1/2" inches rather than 1"), allowing the kicker to get under the ball more and gain more height and hang-time on the kick, allowing the coverage team to get downfield quicker for shorter returns. And it worked--the Raiders' opponents averaged more than four yards fewer per return than league average.
This possesses all the features of the infield fly situation--teams ordinarily place the ball on the tee rather than on top of it; the kicking team controls how the ball is placed on the kick-off; it gives them what appears to be a substantial advantage on the play; and the receiving teams cannot counter the play because the coverage team's extra running head start overwhelms even the best blocking-and-return schemes. This is what leagues impose limiting rules (or limiting interpretations) to eliminate that unusual play and thus the extraordinary advantage.
The NFL did not explain the reinterpretation in these terms. It said the practice produced the same effect as using a 1.5" tee, whereas the rulebook limits tees to 1". Still as Deadspin says, it is hard to believe the league would have cared unless it produced a meaningful one-way benefit and incentivized other teams to do the same.
Posted by Howard Wasserman on December 16, 2022 at 12:12 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Friday, December 09, 2022
No state standing in SB8 suit
Press release on the judge's ruling from the bench that standing requires a plaintiff directly affected by the provision of abortion services. This is remaining lawsuit of the three filed by "colorful" actors; the plaintiff is Felipe Gomez, a suspended Illinois lawyer who purports to support abortion rights.
This is largely moot, since Texas post-Dobbs banned abortion through criminal penalties and government enforcement. But it provides a nice coda to the SB8 story that has ended with a whimper. Rocky and I called the result, although we argued that Texas has a history of statutorily authorized private enforcement that complicates the analysis more than in federal court. It also reveals an irony in the debate over "bounty-hunter" laws--legislative efforts to deter disliked-but-constitutionally-protected conduct through the chill of random private litigation fail in the face of state judiciaries that interpret their constitutions to ape Article III. Further irony: California--which tried to create a "blue-state SB8" on firearms--allows broader "any person" standing than Texas (at least according to one trial judge) and other states that are trying this.
Posted by Howard Wasserman on December 9, 2022 at 08:03 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)
Thursday, December 08, 2022
Changing arguments
Mike Dorf and Will Baude discuss changing dynamics at SCOTUS arguments--including an increase in justices cutting off attorneys, demanding yes-or-no answers to nuanced questions, and not letting them give reasonable answers and making long arguments in the form of questions. Baude argues they increasingly sound like congressional hearings and attributes a number of possible causes, including the new round-robin format, increased polarization, and live-streaming. For what it is worth, at least they sound like they know what they are talking about in their questions, unlike most legislators.
While listening to the 303 argument and before seeing Will's post, I had the idea that the individual-justice questions portion sounded different, with lawyers not bothering to answer many "questions." At one point,the Colorado SG expressed "hope" that he might be able to answer someone's question, because that did not seem to be the point of the exchange.
I hope the blame does not lie with livestreaming. Many of us spent many years arguing for televising arguments, believing the Justices would not undermine their institution.
Posted by Howard Wasserman on December 8, 2022 at 02:33 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)
Crooked State Elections
I wasn't thrilled with the argument in Moore. The Court seemed to converge on the position that Chief Justice Rehnquist's concurring opinion in Bush v. Gore should become the law. This is not good for a couple of reasons. First, Rehnquist's opinion was not well-reasoned. Second, adopting his position will create an excuse for lots of election related litigation over state courts allegedly misinterpreting state law. No matter how deferential the standard of review is, everyone will want to test it out in 2024 and cause mischief
There is no great solution to the problem of a crooked state election (say, Lyndon Johnson stealing his Senate seat in 1948). Congress is not well-situated (especially these days) to resolve such issues. Neither is the Supreme Court. State courts also have their problems, but I'm more inclined to just leave it with them.
Posted by Gerard Magliocca on December 8, 2022 at 11:35 AM | Permalink | Comments (0)
Wednesday, December 07, 2022
AALS in San Diego 2023! Things to do and plan for!
AALS 2023 is coming to town! I can't wait to see hundreds of colleagues coming down here for several event-packed days. Keep in mind that in addition to the regular program there are quite a few satellite conferences being put together by organizations such as ACS.
Still- it's SAN DIEGO. In January! It's warm and sunny and there is so much to do and see.
first - all are welcome to USD Law School AALS Reception at Roy's Restaurant 333 W Harbor Dr. January 6 at 6-8pm.
next, here are my top 10 [which is really top dozens but sneakily categorized in ten]:
- La Jolla Cove. The rocks, the cave, the seals, the birds. It can get stinky but it’s a good kind of stench. Eat breakfast at Brockton Villa to watch the natural beauty, the swimmers, and the kayaks. Have drinks at sunset at George’s, Dukes, Eddie Vs, Herringbone, Puesto or any one of the other upscale dining places. The Cottage, Sugar and Scribe, Brick and Bell, Parakeet, The Living Room are all nice for lounging or brunch. Bring your laptop to the Living Room for an office setting with a view. Walk up along the village to the art galleries, fun boutiques, and the La Jolla Museum of Contemporary Art. Visit Trilogy for an amazing rooftop vegan eateries and aerial yoga. If you have time on the way back, drive up to Mt. Soledad for 360 degrees of all of San Diego. The cross at the top has been giving the 9th Circuit quite the headache for years.
- La Jolla Shores, Scripps Pier, Birch Aquarium, Glider Port, Black’s Beach. You can walk from the shores all the way to UCSD and the Salk Institute, walk down to Black’s Beach where clothes are optional. The Birch Aquarium has stunning views and educational hands-on activities – it’s small and intimate - it’s not Sea World if you know what I mean (Sea World can also be on your destination plans particularly if you are coming with kids). La Jolla Shores is known for its Italian food (though little Italy downtown definitely competes) - you can find just next to the beach at the shores - Piattis, Osteria Romantica, Barbarella...all good choices,
- Torrey Pines Reserve. 1750 acre cliffs above the beach, coastal wilderness, trails for all hiking levels. Breathtaking. Stop for tea at the Lodge at Torrey Pines, a beautiful hotel/spa/golf course that is an architectural homage to California Arts & Crafts Movement.
- Balboa Park. "1,200-acre of park, natural vegetation zones, green belts, botanical gardens, and walking paths, over a dozen museums, several theaters, and the world-famous San Diego Zoo. There are also many recreational facilities and several gift shops and restaurants within the boundaries of the park. Placed in reserve in 1835, the park's site is one of the oldest in the United States dedicated to public recreational use."
- Coronado Island. Take the ferry or drive the long bridge (it isn’t really an island but a peninsula). Go ice-skating outdoor on the beach at the stunning Hotel Del Coronado.
- Crystal Pier. Pacific Beach just south of La Jolla has a long boardwalk, beautiful beaches, and you can run or walk from the Crystal Pier all the way to Belmont Park, the historic amusement park founded in 1925, and ride the wooden roller coaster. If you see Slomo rollerblading along the way, say hi and tell him you watched the documentary about him in the NY Times and here (short of it - he's a former neuroscientist/psychiatrist who decided on radical lifestyle change: "do what you want to" one of his oldest patients told him is the secret for a longlife, so now he roller-blades on the boardwalk every day all day long in slow motion).
- Sunset Cliffs. If La Jolla is the upscale village, and Pacific Beach is the student surfer hangout, Ocean Beach is the hippie beach community. Each unique and fantastic in its own way. In between all of them are Mission Beach and Mission Bay – where you can, like with PB, rent bikes and roller blades and ride for hours. Also a good place to practice your stand up paddleboarding.
- Old Town. History, culture, authentic Mexican food. Right next to our beautiful USD campus. Convoy is close by - home to wonderful and numerous Asian eateries -- Korean (Korea House, Tofu House), Chinese (Jasmine, Emerald), Japanese (Sushi Boat)...
- Encinitas. Another awesome beach community, with world-famous surf. Go meditate at the Zen Garden at the Self Realization Fellowship (check to see if it is open). If you are coming with the family, Legoland as well as the Safari Park are nearby in Carlsbad; Solana Beach and Del Mar are also pretty great. This Del Mar restaurant was just awarded three Michelin stars!
- Gaslamp District and Seaport Village. This is right where the AALS conference takes place so you will figure it out. But make sure you walk all the way to the Harbor, Embarcadero and the USS Midway Museum. Perhaps even go whale watching or just a short harbor cruise between panels.
There is still more. Here's for example a top 25 free things to do. And feel free to add your own San Diego favorites in the comments or ask me any questions that you might have about planning your trip. Here's to a great #AALS2023!
Posted by Orly Lobel on December 7, 2022 at 06:10 PM | Permalink | Comments (1)
Which side of the bench?
Here is a different way of studying SCOTUS arguments--which side of the bench is most active in questioning and draws the most attorney attention? For right now, the answer seems to be to Chief's left/attorney's right--Alito, Kagan, Kavanaugh, and Jackson.
This is of limited long-term use (as opposed to looking at individual justices) because seating changes frequently. It might have been of interest with the long Breyer-juniormost Court (1994-2005). On the other hand, I would not be surprised to see the current Court remain for the next 7-10 years, so maybe that will give us a longer sample.
Posted by Howard Wasserman on December 7, 2022 at 02:05 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)
JOTWELL: Michalski on FJC on pro se electronic filing
The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing the Federal Judicial Center's study of electronic filing by pro se litigants.
Posted by Howard Wasserman on December 7, 2022 at 01:55 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)