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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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No CTRL-V Judging

November 30th, 2012

A Canadian Appeals Court found that a judge copying entire portions from an attorney’s brief rendered it impossible to ascertain the jurists’s reasoning. So the court now has to try again.

Although Justice Donald Lee of Court of Queen’s Bench called the retyped paragraphs his Reasons for Judgment in the two related opinions last year, “[e]very one of the paragraphs in the reasons was extracted essentially verbatim, from the chambers briefs,” wrote the Alberta Court of Appeal panel. “There is no independent authorship. Even spelling mistakes in the briefs are faithfully carried forward.”

 …
“The compilation of passages from the chambers’ briefs does not disclose how the judge arrived at his decision,” the panel stated. “Deciding between competing adversarial positions is at the core of judicial function. This fundamental obligation cannot be discharged without the judge conducting an independent analysis, and articulating it in the appropriate form.”

One metric I want to run with a tool I’m working on is similarity between briefs and opinions I doubt most judges are as brazen (or sloppy) to copy entire passages from briefs, though I’d be willing to wager that a lot of opinions have chunks, if not citations lifted directly from briefs.

I think Eugene Volokh blogged about this 2009-2010ish, but I can’t seem to find the posts.

Salman Khan on online education in five years

November 30th, 2012

Here’s what I think it could look like in five years: the learning side will be free, but if and when you want to prove what you know, and get a credential, you would go to a proctoring center [for an exam]. And that would cost something. Let’s say it costs $100 to administer that exam. I could see charging $150 for it. And then you have a $50 margin that you can reinvest on the free-learning side.

I think that is consistent with the mission. You are taking the cost of the credential down from thousands of dollars to hundreds of dollars. And the [software] system would tell them they are ready for it. So no paying tuition for community college and then dropping out, or even finishing the whole thing and saying “Oh, I’m $20,000 in debt and what did I get out of it?”

Now you are like, “Look, there is this micro-credential in basic accounting I can get for $150, and I basically know I am going to pass before I invest that money.” That would be a huge positive for the consumers of education, and it could pay the bills on the learning side.

A very interesting interview in the MIT Technology Review.

Constitutional Places: The Cross Monument in the Mojave Desert From Salazar v. Buono

November 30th, 2012

The New York Post has an update of the long-standing dispute over the Cross Monument in the Mojave Desert, which was the subject to the challenge in Salazar v. Buono.

In California, a war memorial cross that once stood on a rocky hilltop in a national park before being deemed unconstitutional and ordered removed was being resurrected in the stunningly stark Mojave desert, marking the end of a longstanding legal dispute that had become entangled in patriotism and religion.

Henry Sandoz, who cared for the original cross as part of a promise to a dying World War I veteran, will rededicate a new, 7-foot steel cross on the same hilltop. The site is now in private hands as part of a land swap with the National Park Service that ended the legal battle.

“Judges and lawyers may have played their roles, but it was the veterans who earned this memorial, and it is for them it rises once more,” said attorney Hiram Sasser of the Texas-based Liberty Institute, which represented veterans in the legal fight.

The settlement approved by a federal judge in April permitted the Park Service to turn over the acre of land known as Sunrise Rock to a Veteran of Foreign Wars post in Barstow and the Veterans Home of California-Barstow in exchange for five acres of donated property elsewhere in the 1.6 million acre preserve, about a four-hour drive east of Los Angeles.

The donated land was owned by Sandoz and his wife, Wanda, of Yucca Valley.

Sandoz has cared for the memorial as a promise to World War I veteran Riley Bembry, who with other shell-shocked vets went to the desert to help heal and erected a wooden cross on Sunrise Rock in 1934. It was later replaced with a cross made of steel pipes.

Then Sunrise Rock became part of the Mojave National Preserve in 1994, putting the Christian symbol on public land.

The American Civil Liberties Union filed a lawsuit in 2001 on behalf of a retired Park Service employee who argued the cross was unconstitutional on government property because of the separation of church and state, and federal courts ordered it removed.

Congress stepped in and ordered the land swap in 2003, but the courts rejected the transfer. The issue made its way to the U.S. Supreme Court, which in April 2010 refused to order the cross removed.

Previously the cross monument was stolen in May 2010, shortly after the case was decided, but a settlement in April of 2012 allowed the cross to go back up.

H/T Althouse

NPR Reports on InTrade: A Bet or a Prediction

November 29th, 2012

I, along with Tom Bell and Miriam Cherry, have authored an Op-Ed on the Commodity Future Trading Commission’s suit against Intrade. We arguing that it violates the First Amendment (stay tuned for the placement). Yesterday, Tom spoke with NPR about the suit.

To use Intrade, members place bets on yes-or-no questions. Much like a stock, the price of placing a bet fluctuates based on demand. And when the outcome is determined, the payout is either $10 or nothing. If you win, your profit is that $10, minus the price you paid to place your bet.

According to Thomas Bell, a professor at Chapman Law School in California, the CFTC considers those transactions enough like pork belly futures — which fall under the commission’s authority — to be shut down.

Bell says prediction markets that allow trading on current events are still a very tiny — and very new — segment that occupies a gray area of the law.

“It’s not clear under U.S. law at present whether it’s gambling, whether it’s commodities futures trading, or whether it’s securities,” Bell says. “There’s terrible uncertainty.”

Also, there are interesting quotes from Justin Wolfers about the differences between gambling and betting.

“Conceptually, to an economist, there’s not a difference between betting and trading — apart from the fact that one sounds more polite than the other,” says Justin Wolfers, who grew up in Australia working for bookies taking bets.

Now a University of Michigan professor who’s studied Intrade, Wolfers says the site is not just a venue for winning and losing money. It also generates news as a byproduct, he says [JB: A decent point for our First Amendment argument]. That is, the odds on Intrade are almost always right.

“It tends to be more accurate than pundits, it tends to be more accurate than polls, and in the past it’s even more accurate than very sophisticated poll-watchers like The New York Times’ Nate Silver at FiveThirtyEight.com,” Wolfers says.

Stay tuned. I’ll have more on this shortly.

My first exam will be administered tonight

November 29th, 2012

I wish all my students the best of luck.

I haven’t blogged much about my class this semester (other than posting all the videos in the right-hand column). I’ll blog more about my experience teaching once all my grades are submitted and exams are settled away.

For those interested, my class home page is here. Every class has its own blog post, with videos, photos, and a recording of the lecture notes. It has been a pleasure.

I will post the fact patterns once all the exams are submitted.