law – Page 38 – The Living Library

Git for Law Revisited

Curated on October 26, 2015August 3, 2018 by Stefaan Verhulst

Ari Hershowitz at Linked Legislation: “Laws change. Each time a new U.S. law is enacted, it enters a backdrop of approximately 22 million words of existing law. The new law may strike some text, add some text, and make other adjustments that trickle through the legal corpus. Seeing these changes in context would help lawmakers and the public better understand their impact.

To software engineers, this problem sounds like a perfect application for automated change management. Input an amendment, output tracked changes (see sample below). In the ideal system such changes could be seen as soon as the law is enacted — or even while a bill is being debated. We are now much closer to this ideal.

Changes to 16 U.S.C. 3835 by law 113-79

On Quora, on this blog, and elsewhere, I’ve discussed some of the challenges to using git, an automated change management system, to track laws. The biggest technical challenge has been that most laws, and most amendments to those laws, have not been structured in a computer friendly way. But that is changing.

The Law Revision Counsel (LRC) compiles the U.S. Code, through careful analysis of new laws, identifying the parts of existing law that will be changed (in a process called Classification), and making those changes by hand. The drafting and revision process takes great skill and legal expertise.

So, for example, the LRC makes changes to the current U.S. Code, following the language of a law such as this one:

Sample provision, 113-79 section 2006(a)

LRC attorneys identify the affected provisions of the U.S. Code and then carry out each of these instructions (strike “The Secretary”, insert “During fiscal year”…”). Since 2011, the LRC is using and publishing the final result of this analysis in XML format. One of the consequences of this format change is that it becomes feasible to automatically match the “before” to the “after” text, and produce a redlined version as seen above, showing the changes in context.

To produce this redlined version, I ran xml_diff, an open-source program written by Joshua Tauberer of govtrack.us, who also works with my company, Xcential, on modernization projects for the U.S. House. The results can be remarkably accurate. As a pre-requisite, it is necessary to have a “before” and “after” version in XML format and a small enough stretch of text to make the comparison manageable….(More)”

Lawyer’s crowdsourcing site aims to help people have their day in court

Curated on October 22, 2015August 3, 2018 by Stefaan Verhulst

Mary O’Hara in The Guardian: “With warnings coming thick and fast about the stark ramifications of the government’s sweeping cuts to legal aid, it was probably inevitable that someone would come up with a new way to plug some gaps in access to justice. Enter the legal crowdfunder, CrowdJustice, an online platform where people who might not otherwise get their case heard can raise cash to pay for legal representation and court costs.

The brainchild of 33-year-old lawyer Julia Salasky, and the first of its kind in the UK, CrowdJustice provides people who have a public interest case but lack adequate financial resources with a forum where they can publicise their case and, if all goes to plan, generate funding for legal action by attracting public support and donations.

“We are trying to increase access to justice – that’s the baseline,” says Salasky. “I think it’s a social good.”

The platform was launched just a few months ago, but has already attracteda range of cases both large and small, including some that could set important legal precedents.

CrowdJustice has helped the campaign, Jengba (Joint Enterprise: Not Guilty by Association) to raise funds to intervene in a supreme court case to consider reforming the law of joint enterprise that can find people guilty of a crime, including murder, committed by someone else. The group amassed £10,000 in donations for legal assistance as part of their ongoing challenge to the legal doctrine of “joint enterprise”, which disproportionately prosecutes people from black and minority ethnic backgrounds for violent crimes where it is alleged they have acted together for a common purpose.

In another case, a Northern Irish woman who discovered she wasn’t entitled to her partner’s occupational pension after he died because of a bureaucratic requirement that did not apply to married couples, used CrowdJustice to help raise money to take her case all the way to the supreme court. “If she wins, it will have an enormous precedent-setting value for the legal rights of all couples who cohabit,” Salasky says….(The Guardian)”

Privacy Bridges: EU and US Privacy Experts in Search of Transatlantic Privacy Solutions

Curated on October 22, 2015August 3, 2018 by Stefaan Verhulst

IVIR and MIT: “The EU and US share a common commitment to privacy protection as a cornerstone of democracy. Following the Treaty of Lisbon, data privacy is a fundamental right that the European Union must proactively guarantee. In the United States, data privacy derives from constitutional protections in the First, Fourth and Fifth Amendment as well as federal and state statute, consumer protection law and common law. The ultimate goal of effective privacy protection is shared. However, current friction between the two legal systems poses challenges to realizing privacy and the free flow of information across the Atlantic. Recent expansion of online surveillance practices underline these challenges.

Over nine months, the group prepared a consensus report outlining a menu of privacy “bridges” that can be built to bring the European Union and the United States closer together. The efforts are aimed at providing a framework of practical options that advance strong, globally-accepted privacy values in a manner that respects the substantive and procedural differences between the two jurisdictions….

Full Report (276 KB)
Executive summary (106 KB)

(More)”

The big questions for research using personal data

Curated on October 19, 2015August 15, 2018 by Stefaan Verhulst

Louise Pakseresht at Royal Society’s “Verba”: “We live in an era of data. The world is generating 1.7 million billion bytes of data every minute and the total amount of global data is expected to grow 40% year on year for the next decade (PDF). In 2003 scientists declared the mapping of the human genome complete. It took over 10 years and cost $1billion – today it takes mere days and can be done at a fraction of the cost.

Making the most of the data revolution will be key to future scientific and economic progress. Unlocking the value of data by improving the way that we collect, analyse and use data has the potential to improve lives across a multitude of areas, ranging from business to health, and from tackling climate change to aiding civic engagement. However, its potential for public benefit must be balanced against the need for data to be used intelligently and with respect for individuals’ privacy.

Getting regulation right

The UK Data Protection Act was transposed into UK law following the 1995 European Data Protection Directive. This was at a time before wide-spread use of internet and smartphones. In 2012, recognising the pace of technological change, the European Commission proposed a comprehensive reform of EU data protection rules including a new Data Protection Regulation that would update and harmonise these rules across the EU.

The draft regulation is currently going through the EU legislative process. During this, the European Parliament has proposed changes to the Commission’s text. These changes have raised concerns for researchers across Europe that the Regulation could risk restricting the use of personal data for research which could prevent much vital health research. For example, researchers currently use these data to better understand how to prevent and treat conditions such as cancer, diabetes and dementia. The final details of the regulation are now being negotiated and the research community has come together to highlight the importance of data in research and articulate their concerns in a joint statement, which the Society supports.

The Society considers that datasets should be managed according to a system of proportionate governance. Personal data should only be shared if it is necessary for research with the potential for high public value and should be proportionate to the particular needs of a research project. It should also draw on consent, authorisation and safe havens – secure sites for databases containing sensitive personal data that can only be accessed by authorised researchers – as appropriate…..

However, many challenges remain that are unlikely to be resolved in the current European negotiations. The new legislation covers personal data but not anonymised data, which are data that have had information that can identify persons removed or replaced with a code. The assumption is that anonymisation is a foolproof way to protect personal identity. However, there have been examples of reidentification from anonymised data and computer scientists have long pointed out the flaws of relying on anonymisation to protect an individual’s privacy….There is also a risk of leaving the public behind with lack of information and failed efforts to earn trust; and it is clear that a better understanding of the role of consent and ethical governance is needed to ensure the continuation of cutting edge research which respects the principles of privacy.

These are problems that will require attention, and questions that the Society will continue to explore. …(More)”

Where the right to know comes from

Curated on October 15, 2015August 3, 2018 by Stefaan Verhulst

Michael Schudson in Columbia Journalism Review: “…what began as an effort to keep the executive under check by the Congress became a law that helped journalists, historians, and ordinary citizens monitor federal agencies. Nearly 50 years later, it may all sound easy and obvious. It was neither. And this burst of political engagement is rarely, if ever, mentioned by journalists themselves as an exception to normal “acts of journalism.”

But how did it happen at all? In 1948, the American Society of Newspaper Editors set up its first-ever committee on government restrictions on the freedom to gather and publish news. It was called the “Committee on World Freedom of Information”—a name that implied that limiting journalists’ access or straightforward censorship was a problem in other countries. The committee protested Argentina’s restrictions on what US correspondents could report, censorship in Guatemala, and—closer to home—US military censorship in occupied Japan.

When the ASNE committee turned to the problem of secrecy in the US government in the early 1950s, it chose to actively criticize such secrecy, but not to “become a legislative committee.” Even in 1953, when ASNE leaders realized that significant progress on government secrecy might require federal legislation, they concluded that “watching all such legislation” would be an important task for the committee, but did not suggest taking a public position.

Representative Moss changed this. Moss was a small businessman who had served several terms in the California legislature before his election to Congress in 1952. During his first term, he requested some data from the Civil Service Commission about dismissals of government employees on suspicion of disloyalty. The commission flatly turned him down. “My experience in Washington quickly proved that you had a hell of a time getting any information,” Moss recalled. Two years later, a newly re-elected Moss became chair of a House subcommittee on government information….(More)”

Nudge 2.0

Curated on October 8, 2015August 3, 2018 by Stefaan Verhulst

Philipp Hacker: “This essay is both a review of the excellent book “Nudge and the Law. A European Perspective”, edited by Alberto Alemanno and Anne-Lise Sibony, and an assessment of the major themes and challenges that the behavioural analysis of law will and should face in the immediate future.

The book makes important and novel contributions in a range of topics, both on a theoretical and a substantial level. Regarding theoretical issues, four themes stand out: First, it highlights the differences between the EU and the US nudging environments. Second, it questions the reliance on expertise in rulemaking. Third, it unveils behavioural trade-offs that have too long gone unnoticed in behavioural law and economics. And fourth, it discusses the requirement of the transparency of nudges and the related concept of autonomy. Furthermore, the different authors discuss the impact of behavioural regulation on a number of substantial fields of law: health and lifestyle regulation, privacy law, and the disclosure paradigm in private law.

This paper aims to take some of the book’s insights one step further in order to point at crucial challenges – and opportunities – for the future of the behavioural analysis of law. In the last years, the movement has gained tremendously in breadth and depth. It is now time to make it scientifically even more rigorous, e.g. by openly embracing empirical uncertainty and by moving beyond the neo-classical/behavioural dichotomy. Simultaneously, the field ought to discursively readjust its normative compass. Finally and perhaps most strikingly, however, the power of big data holds the promise of taking behavioural interventions to an entirely new level. If these challenges can be overcome, this paper argues, the intersection between law and behavioural sciences will remain one of the most fruitful approaches to legal analysis in Europe and beyond….(More)”

As a Start to NYC Prison Reform, Jail Data Will Be Made Public

Curated on October 8, 2015October 10, 2018 by Stefaan Verhulst

Brentin Mock at CityLab: “…In New York City, 40 percent of the jailed population are there because they couldn’t afford bail—most of them for nonviolent drug crimes. The city spends $42 million on average annually incarcerating non-felony defendants….

Wednesday, NYC Mayor Bill de Blasio signed into law legislation aimed at helping correct these bail problems, providing inmates a bill of rights for when they’re detained and addressing other problems that lead to overstuffing city jails with poor people of color.

The omnibus package of criminal justice reform bills will require the city to produce better accounting of how many people are in city jails, what they’re average incarceration time is while waiting for trial, the average bail amounts imposed on defendants, and a whole host of other data points on incarceration. Under the new legislation, the city will have to release reports quarterly and semi-annually to the public—much of it from data now sheltered within the city’s Department of Corrections.

“This is bringing sunshine to information that is already being looked at internally, but is better off being public data,” New York City council member Helen Rosenthal tells CityLab. “We can better understand what polices we need to change if we have the data to understand what’s going on in the system.”…

The city passed a package of transparency bills last month that focused on Rikers, but the legislation passed Wednesday will focus on the city’s courts and jails system as a whole….(More)”

Understanding democracy as a product of citizen performances reduces the need for a defined ‘people’

Curated on October 8, 2015November 15, 2018 by Stefaan Verhulst

Liron Lavi at Democratic Audit: “Dēmokratía, literally ‘the rule of the people’, is the basis for democracy as a political regime. However, ‘the people’ is a heterogeneous, open, and dynamic entity. So, how can we think about democracy without the people as a coherent entity, yet as the source of democracy? I employ a performative theorisation of democracy in order to answer this question. Democracy, I suggest, is an effect produced by repetitive performative acts and ‘the people’ is produced as the source of democratic sovereignty.

A quick search on ‘democratic performance’ will usually yield results (and concerns) regarding voter competence, government accountability, liberal values, and legitimacy. However, from the perspective of performative theory, the term gains a rather different meaning (as has been discussed at length by Judith Butler). It suggests that democracy is not a pre-given structure but rather needs to be constructed repeatedly. Thus, for a democracy to be recognised and maintained as such it needs to be performed by citizens, institutions, office-holders, the media, etc. Acts made by these players – voting, demonstrating, decision- and- law-making, etc. – give form to the abstract concept of democracy, thus producing it as their (imagined) source. There is, therefore, no finite set of actions that can determine once and for all that a social structure is indeed a democracy, for the regime is not a stable and pre-given structure, but rather produced and imagined through a multitude of acts and procedures.

Elections, for example, are a democratic performance insofar as they are perceived as an effective tool for expressing the public’s preferences and choosing its representatives and desired policies. Polling stations are therefore the site in which democracy is constituted insofar as all eligible members (can) participate in the act of voting, and therefore are constructed as the source of sovereignty. By this, elections produce democracy as their effect, as their source, and hold together the political imagination of democracy. And they do this periodically, thus open options for new variations (and failures) in the democratic effect they produce. Elections are therefore, not only an opportunity to replace representatives and incumbents, but also an opportunity to perform democracy, shape it, alter it, and load it with various meanings….(More)”

The Future of Public Participation: Better Design, Better Laws, Better Systems

Curated on September 29, 2015October 23, 2018 by Stefaan Verhulst

Tina Nabatchi, Emma Ertinger and Matt Leighninger in Conflict Resolution Quaterly: “In the late 1980s and early 1990s, conflict resolution practitioners faced a dilemma: they understood how to design better ADR processes but were often unsure of their authority to offer ADR and were entrenched in systems that made it difficult to use ADR. Today, public participation faces a similar dilemma. We know what good participation looks like, but using better participation is challenging because of legal and systemic impediments. This need not be the case. In this article, we assert that tapping the full potential of public participation requires better designs, better laws, and better systems….(More)”