10 January 2015

Juries and Open Justice

'The Big Data Jury' by Andrew Guthrie Ferguson boldly addresses "the disruptive impact of big data technologies" on US jury selection, commenting 
 Jury selection requires personal information about potential jurors. Current selection practices, however, collect very little information about citizens, and litigants picking jury panels know even less. This data gap results in a jury selection system that: (1) fails to create a representative cross-section of the community; (2) encourages the discriminatory use of peremptory challenges; (3) results in an unacceptably high juror “no show” rate; and (4) disproportionately advantages those litigants who can afford to hire expensive jury consultants.
Big data has the potential to remedy these existing limitations and inequities. Big data technologies offer a highly personalized, current, and targeted mechanism for locating citizens in a particular jurisdiction. Big data companies have been collecting public and quasi-public information about most American’s consumer, financial, health, political, and personal interests for years. For courts, the availability of real-time, personally targeted data provides the potential for algorithmically-precise representative jury venires and more efficient jury summonsing practices. This collected personal data also can be quite revealing about attitudes, inclinations, and interests. For litigants, the available information could provide a wealth of insights once only available from expensive jury consultants. Big data has the potential to democratize information about jurors leading to less discriminatory jury selection practices. Big data information, thus, has the potential to revolutionize how jury pools are selected and jury panels are picked.
Yet, adoption of big data technology carries real risks. Traditional jury roles and values, including the continued legitimacy of the jury system, itself, are at stake. Increased big data collection of personal information involves an invasion of privacy that could result in significant backlash against jury service. Affirmative targeting of jurors also presents thorny constitutional issues, as considerations of race, gender, or ethnicity could run into equal protection problems. Equalizing the availability of big data information about jurors, and making it a part of the jury selection system, raises practical, theoretical, and constitutional dilemmas all of which are addressed in this article.
'An Appetite for Suppression: Non-Publication Orders, Open Justice and the Protection of Privacy' by Miiko A. Kumar and David Rolph in Dieter Dorr and Russell L. Weaver (eds.) Perspectives On Privacy: Increasing Regulation in the US, Canada, Australia and European Countries (Walter de Gruyter, 2014) comments 
 The principle of open justice is a fundamental doctrine of the common law. It is only departed from where it is strictly necessary to do so. Historically, then, merely because a court proceeding involved the public ventilation of private matters was not a sufficient basis for derogating from open justice. Recently, courts, legislatures and law reform bodies have been increasingly concerned about directly protecting privacy. The greater legal protections afforded to privacy have seen some challenges to the primacy of open justice. This chapter examines a number of recent cases in which high-profile litigants have attempted to obtain suppression or non-publication orders, in part to protect the privacy of their affairs from media scrutiny. It considers how the emerging tension between open justice and privacy might develop in the future and how it might be resolved.


'Who's Afraid of Wikileaks? Missed Opportunities in Political Science Research' by Gabriel J. Michael in Review of Policy Research (Forthcoming) argues 
 Leaked information, such as WikiLeaks' Cablegate, constitutes a unique and valuable data source for researchers interested in a wide variety of policy-oriented topics. Yet political scientists have avoided using leaked information in their research. This article argues that we can and should use leaked information as a data source in scholarly research.
First, I consider the methodological, ethical, and legal challenges related to the use of leaked information in research, concluding that none of these present serious obstacles. Second, I show how political scientists can use leaked information to generate novel and unique insights about political phenomena using a variety of quantitative and qualitative methods. Specifically, I demonstrate how leaked documents reveal important details about the Trans-Pacific Partnership negotiations, and how leaked diplomatic cables highlight a significant disparity between the U.S. government's public attitude towards traditional knowledge and its private behavior.

08 January 2015


The New York Times has noted the death of thief and forger Lee Israel.
In the early 1990s, with her career at a standstill, she became a literary forger, composing and selling hundreds of letters that she said had been written by Edna Ferber, Dorothy Parker, Noël Coward, Lillian Hellman and others. 
That work, which ended with Ms. Israel’s guilty plea in federal court in 1993, was the subject of her fourth and last book, the memoir Can You Ever Forgive Me?, published by Simon & Schuster in 2008. 
The memoir drew mixed notices. But if nothing else, it remains a window onto its author’s hubris and nemesis, and onto the myriad discontents of the freelance writer’s life, a “New Grub Street” for the late 20th century.
As Ms. Israel told it, her forgeries were born less of avarice than of panic and began after a stretch of poor reviews and writer’s block, mixed with alcohol and improvidence. What was more, those who knew her said this week, she possessed a temperament that made conventional employment nearly impossible.
“She drank an awful lot — she was an alcoholic,” David Yarnell, a friend, said in an interview on Monday. “And she was very feisty, and people did not want to work with her.”
Ms. Israel’s criminal career married scholarship, fabrication, forgery and outright theft. Using the research skills she had honed as a writer, she scoured her subjects’ memoirs for salient biographical details; their published letters for epistolary style; and their original, archived letters for typing idiosyncrasies. She bought a flock of period typewriters from secondhand shops and, on furtive library visits, tore blank sheets of vintage paper from the backs of old journals.
She managed to fly under the radar by charging little, selling her creations to autograph dealers around the country for about $50 to $100 each. She made it up in volume, she said in her memoir, generating some 400 letters over about a year and a half.
Ms. Israel was, by all accounts, a remarkable literary mimic. “She was brilliant,” Carl Burrell, a retired F.B.I. agent who was the lead investigator on her case, said on Tuesday.
He recalled one letter with particular fondness. “My favorite was Hemingway,” Agent Burrell said. “He was complaining about Spencer Tracy being cast as the main character in ‘The Old Man and the Sea.’ ”
Two of Ms. Israel’s gossipy Coward impersonations — one of which describes Julie Andrews as “quite attractive since she dealt with her monstrous English overbite” — found their way into The Letters of Noël Coward, published by Alfred A. Knopf in 2007.
Of her body of forgeries, Ms. Israel wrote in her memoir, “I still consider the letters to be my best work.”
By dealing in typed letters, Ms. Israel was obliged to copy only the signatures. This she did by tracing over the originals, first covertly in libraries and later in her Upper West Side apartment, originals in hand. For over time, after whispers among dealers about the authenticity of her wares made composing new letters too risky, Ms. Israel had begun stealing actual letters from archives — including the New York Public Library and the libraries of Columbia, Yale, Harvard and Princeton Universities — and leaving duplicates in their place.
“She would go into these libraries and copy the letter in question, go back to her home and fake as best she could the stationery and fake the signature, and then she’d go back to the institution and make the switch,” David H. Lowenherz, a New York autograph dealer, said on Monday. “So she was actually not selling fakes: She was substituting the fakes and selling the originals.”
Israel wrote in her memoir, “I had never known anything but ‘up’ in my career.” But even afterward, when she went on welfare, a 9-to-5 job was beyond contemplation.
“I regarded with pity and disdain the short-sleeved wage slaves who worked in offices,” she wrote. “I had no reason to believe life would get anything but better.”
When life did not, Ms. Israel, visiting the New York Public Library for the Performing Arts, slipped three letters by Fanny Brice into her shoe, and by 1991 her new calling was underway.
It ended the next year, after Mr. Lowenherz learned that an original letter he had purchased from Ms. Israel — from Ernest Hemingway to Norman Cousins — was actually owned by Columbia. He met with the university librarian.
“He had a forgery,” Mr. Lowenherz said on Monday. “I said, ‘Is there any way you can tell who had recent access to this letter?’ He came back and said: ‘We have this card. It’s signed by Lee Israel.’ ”
Mr. Lowenherz alerted the F.B.I., and in June 1993 Ms. Israel pleaded guilty to one count of conspiracy to transport stolen property in interstate commerce. She was sentenced to six months’ house arrest and five years’ probation.
The court also directed her to attend an alcohol-treatment program, “which,” Ms. Israel wrote breezily in her memoir, “I never did.”