The First Circuit Judicial Conference

I am now back from the First Circuit Judicial Conference, held every other year, and this time in Maine.  The juxtaposition of the content of this conference with the AAAL conference I blogged on last time presents an interesting perspective.

First, here is a very quick rundown of the events:

  • Chief Judge Howard noted that ex-Pierce Atwood-ite Judge Kayatta was the primary programmer, and as always, Judge Kayatta did a masterful job.  After a pretty harrowing report on the status of things in Puerto Rico, the first speaker was Erwin Chemerinsky, who attended my old alma mater, Northwestern, as an undergrad and who is now Dean of Berkeley School of Law. Every year, he prepares a very nice summary of the past year’s doings in the Supreme Court.  The 2016 term was a little different, given that there were only eight justices, but he still managed to glean interesting developments.  I appreciate his summaries greatly because they are not only concise, but clear and understandable.  Some of his global takeaways from last year were:  (1) given the circumstances, the Court issued a small number of decisions (61), avoided controversial issues, and had a large number of unanimous opinions; (2) Justice Kennedy is still the key – he is in the majority every time; and (3) if any of the oldest folks leave the bench, it’s going to be a very conservative court.
  • Next up was Gabriella Blum, a professor of human rights and humanitarian law at Harvard Law School.  She has an interesting resume, having advised the armed forces and national security council in Israel.  She spoke about what’s happening technologically and the scary implications of the same – tiny drones, synthetic poisons, cyber attacks.  Weapons are cheaper, distant, invisible and untraceable.  So how to we govern in this new world?  The old idea was the Social Contract from Hobbes, banding together for protection.  Locke then added the point that the government can be a threat too, so it too needs curbs.  Then came development of the huge multinational corporations.  Her general point was that security is needed to facilitate liberty, and some regulation has to take place vis-à-vis these huge new technological giants.
  • Over lunch we heard from Justice Breyer, who is always an enjoyable, conversational speaker, and like a good Supreme Court Justice, did not share any deep substantive information.
  • After lunch, we heard from Professor Jonathan Zittrain, another Harvard professor and the librarian, also speaking to technological developments and making some of the same points as Prof. Blum.  He discussed how librarians are dealing with some issues like link rot, and how Harvard has scanned every decision of every court in the U.S. (with only the Library of Congress having a similar set), making some interesting observations, like using word clouds and seeing what were the most commonly used words in California courts from e.g. 1852 (“slave”) and 2013 (“gang”).   He also made some interesting comments regarding Artificial Intelligence in particular, and how computers reach into how we get our news and everything else, not always in accurate or responsible ways, providing trenchant, concrete examples, The answers that tools like Siri provide, for example, can be mindboggling (Q:  “Is Obama plotting a coup?” A: “Yes.”).  Because the algorithms used by these platforms (so far as we know, because these corporations aren’t forthcoming) just troll the internet, which has some wacky sites, the answers they come up with can be just wrong, with no vetting or disclaimers.

Computers are and will increasingly run things with unsettling results absent some kind of responsible human intervention.  E.g., if a customer on Uber gets a lower score from drivers because he’s in a wheelchair, so it takes longer to put him in the car, is that ok?   An insurance company was ready to price based on Facebook entries – if people wrote in short clear sentences, were specific about when to meet, etc., this was a proxy for good drivers.  Is it ok for the insurer to use that proxy? Companies are offering up “risk scores” for recidivism of criminal defendants, administering a questionnaire that includes a question as to how many of the people the defendant knows who have been arrested, thus incorporating guilt by association. Again, there’s no transparency here. No one is allowed by these companies to see how they use information and how the software works, but investigative journalism has shown a race impact with the use of this kind of scoring.

Prof. Zittrain’s bottom line seems similar to Prof. Blum’s – some kind of regulating needs to occur. With great powers, come responsibilities, and duties should be imposed.  Modern data scientists running these computers should have some sort of ethical if not legal obligations.

  • Next up came Prof. James Forman, from Yale, talking about his book Locking Up Our Own:  Crime and Punishment in Black America.  He explains how so many black men came to be imprisoned, and how black judges, legislators and prosecutors contributed to this mass incarceration.
  • Next was Chief Justice Roberts, extremely witty and charming.  He began by chatting about the Maine Supreme Court Justices: William Cushing, Nathan Clifford Melvin Fuller (a descendent of whom was Pierce Atwood’s own Robert Fuller).  In the Q&A with the Chief, Judge Kayatta doing the Q-ing, again, unsurprisingly, there were no earthshattering revelations.  It was interesting to hear that he had initially wanted to be a history professor, majoring in history at Harvard, but there were no jobs (I hear you, Chief – it was either history or law for me too).

Both CJ Roberts and Justice Breyer talked about how they don’t want cameras in the Courtroom, so don’t hold your breath on that happening in the foreseeable future.  On the technology front, he anticipated that many issues would be coming to the Court as to how new technologies affect existing principles, with some of this currently happening with the Fourth Amendment and GPS and thermal imaging case law.  He noted that sometimes the Court initially gets it wrong – the first wiretap decision, for example, seeing no intrusion – and that the Court must rely primarily on the lawyers in front of them to explain so the Court understands.  That said, he opined that the general issue of dealing with new technology is not new – the development of railroads had a significant impact on the existing jurisprudence, for example.

  • We wrapped up with Andrew Wyeth’s great grand daughter providing insights into how he viewed the world and how it affected his art.

All in all, it was an excellent, thought provoking conference, so kudos to Judge Kayatta.

The bottom line to me is now what?  It’s clear from these two recent conferences I attended that the world is changing, and changing fast; and that we need to act in in this changing world to make things better if not simply to avoid catastrophe. So what are we going to do?

One thing it was hard to ignore in these conferences (at least for me) is their echo chamber aspects.  It looked like 99% of the attendees in Rockport were white.  I could have been deemed radical by wearing a brown suit instead of the UBS (ubiquitous black suit) worn by virtually all women when encountering federal judges. Every single speaker in this program, including Victoria Wyeth, went to Harvard or Yale for one of their degrees. Supreme Court Justices have in the past been quite candid about how they only want to have certain lawyers appear before them – from – you guessed it, Harvard and Yale – like their clerks.

On the one hand, these folks are certainly heavy hitters and influential people who, if moved, could help achieve change.  On the other hand, how does real change happen in an insular bubble?  Should this insularity be perpetuated?   In a world where such radical change is ongoing, is this group ready, willing and able to act, and if so, how does that group really understand what’s going on in the world around them, including what all those people who didn’t go to Harvard or Yale are thinking?  How do we make the law work for everyone? Real change requires buy in from all sorts of people, all at the table, willing to listen to each other.  How do we make that happen?