Job Opportunity at Harvard Law Access to Justice Lab

As many of you know, the Access to Justice Lab at Harvard Law School is an initiative to try to further evidence-based thinking within access to justice and court administration.

It focuses on conducting randomized field experiments to find out what works and on incorporating lessons from non-law fields into law.

It has randomized experiments underway on self-help with the legal aspects of debt, pretrial risk assessment scores, reduction of debt collection lawsuit default rates, divorce, and federal court mediation, with projects on triage of domestic violence victims and service of process in guardianship proceedings in planning.

The A2J Lab is looking for a full-time researcher.  For details, please see here or here.

Posted in Law Schools, Metrics, Outcome Measures, Research and Evalation, Self-Help Services | Leave a comment

The Trump Endgame Is Going To Be About the Intersection of Political and Legal Contexts, Which Together Will Work To Speed the Process

There are several reasons why the received wisdom about the speed of the Trump removal process may be completely wrong.  Not surprisingly, most of the reasons relate as much to the political as to the legal context.

One:  Perhaps most importantly, unlike in prior impeachment situations, even this early, almost everyone in Washington really wants Trump gone.  There are literally only about 50 people for whom this is not true.  The difference between the parties this year is that the Democrats are not upset when people figure it out, but the Republicans are terrified about their base doing so.  (When the Republicans say they want to get all the facts out about malfeasance on their side, you know the subject of the investigation is in deep trouble.)

Two:  A prima facie case of obstruction of justice by President Trump has already been made out, most of it from his own statements and admissions.  This comes from his firing of Comey, his statement that he performed the firing because of his feelings about the Russia investigation, his statement to the Russians that he (and they) have gained from what he believed to be the successful firing.  While that alone is probably enough, there will be plenty more.  This could go to a grand jury very quickly.

Three:  This time round, no one seems to be suggesting any barriers, such as Executive Privilege or National Security, to getting the information quickly.  This is in very marked contrast to 1972 – 1974, when it took well over a year to resolve the barriers.  I think the main reason is listed in number one  above, that no one wants to protect Trump, it is just that one party does not want that fact to be too obvious.  It is also partly that Trump has waived many of the legal issues by his tweeting and statements.  I think it is less the reason for the absence of such privilege claims that the legal issues have already been resolved — US v. Nixon gave Nixon no outs, but clever lawyers have since then, with a sympathetic audience been able to find new arguments — it’s just that there is no such sympathetic audience outside the immediate Trump family and their hangers on.

Four:  It really does not matter whether a President can be indicted or not.  You just charge a conspiracy to obstruct justice, name the President as an un-indicted co-conspirator, and get all the information to Congress.  This is what happened with Nixon, in that case with the permission of the judge overseeing the grand jury (the now largely forgotten hero John Sirica.)

Five:  In today’s digital environment, not only is there additional evidence everywhere, but the process of finding and putting it in the right order will move much quicker.  In the Watergate investigation it look months to get all the interlocking evidence hand typed onto sorted color-coded index cards.  The timeline can be ready for grand jury presentation soon.

Six:  If they can get rid of Trump, the Republicans want it done as fast as possible.  This is because the other prong of the investigation, the one dealing with the underlying Russia collusion, is going to take much longer, but if successful, it is potentially much much more damaging to the legitimacy of Republican power.  If by the time we get a new President it is clear that the Democrats should or might have won without the collusion, the pressure on Pence to offer the Vice Presidency to Tim Kaine will be immense, and we will be in a period of coalition government.  If the Republicans do not accept something like this, they will be killed at the next election, whether midterms or the presidential.  Even if they do accept it, much of their radical agenda is gone.

So, almost all the rational incentives align in the same direction.

The only questions are whether the Republicans can figure this out, and if the Democrats want and are able to, can figure out how to take advantage of the alignment.

Actually, the main reason I now think that impeachment is the more likely route is that Republicans do not have to be the ones obviously triggering the process, at least until very near the end of the game.  In contrast, if they used the 25th Amendment, it would basically Republicans starting and managing the process.

But, that choice of remedy analysis assumes that new bombshell inherently destructive of Trump’s relationship with his core base comes out — and that might happen tomorrow at 5 PM.  Tax returns, anyone.

(First posted in my politics and humor blog.)

Posted in Dept. of Justice, History, Judicial Supremacy, White House | Leave a comment

Mary McClymont’s Inspiring Clarion Call

afj

Earlier today Mary McClymont, President of the Public Welfare Foundation, received the Champions for Justice Award from the Alliance for Justice.

Here are her remarks.  I have bolded the first couple of paragraphs that focus on access to justice. 

Martin and Peter, thank you for those lovely introductions. It means a lot to me especially coming from each of you.

To Nan and the Alliance for Justice, thank you so much for this generous award. And to all present, thank you so much for coming and for supporting AFJ which safeguards our federal judiciary and teaches us all how to do truly bolder advocacy.

For me, this feels like old home week with many friends, co-workers and mentors from different parts of my career in and out of philanthropy. I’m also delighted to see many of the Public Welfare grantees and of course –a very big shout out to my own stellar board members and brilliant staff colleagues. I love our team and I’m so proud of the work they do at the Foundation with our grantees.

When Nan called and said I was to receive the “champion of justice” award,  I had two thoughts: First, to be recognized for my commitment to justice is very special to me personally since all I’ve ever wanted in my career was to contribute to human rights and social justice and to do that in the good company of fellow seekers of justice, whether with a team doing prison conditions cases, or conspiring with grantees on the best way to make real change through a set of grants. You see, for me, it’s that very collaboration that makes the work especially rewarding.

The second thought I had was how humbling it is to be singled out since I know well that so many others could be up here at the podium. All of us are champions of justice, whatever our particular issue, whether we work globally or here in the US. And I believe that what makes us effective champions, especially in these treacherous times, is bringing both passion and laser focus to our particular cause.

I started my career as a lawyer, and I was asked recently how I got into philanthropy. Well, I was recruited by my boss at the CRD of the Dept. of Justice, the brilliant lawyer Lynn Walker Huntley. She had left DOJ to go to the Ford Foundation.  Lynn showed me how philanthropy could also be a place where I, a lawyer, could in fact be a social change agent for what I care about in the world. My philanthropy work thus became intertwined with the social justice work I did on the frontlines. Having the “real world” experience as an advocate was what helped me understand how to do good philanthropy. I’ve been most privileged to pursue my career in both arenas.

A key lesson I learned at Ford was how important it is for philanthropy to be willing to take on and stick with and build advocacy infrastructure around unpopular, politically difficult and intractable social justice issues–such as the scourge of racism, attacks on immigrants or the issues we focus on and stick with at PWF—destructive incarceration of massive numbers of adults and children, who are largely people of color, or unaccountable employers ripping off hard earned wages or imposing unhealthy conditions on workers—such tenacious issues, which all call for transformative change.

So many important overlooked issues to highlight, but I wanted to raise up one about which I’m especially passionate. I have worked on this in philanthropy, earlier at Ford, and, as you heard from Peter, at PWF in recent years with our wonderful grantees. It is an issue that undergirds so much of what we all work on.

What I’m talking about is the complete failure to provide basic legal help to people as they navigate our complex civil justice system on common, yet critical life issues—eviction, debt collection, domestic abuse, child custody or wage theft. The consequences are profound: without legal help on such matters, people can lose their families, their homes, and their livelihoods, be pushed further into poverty, and even wind up incarcerated.

Why else should we care? 1) the problem is enormous: Because millions of people can’t afford an attorney and have no right to counsel , in a shocking 75 percent of civil cases today in our state courts , one or both parties are going it alone in court, completely unrepresented in a system designed for lawyers. 2) They are mostly poor and people of color, mainly women. 3) The issue is virtually invisible to the public, and largely overlooked by the media, philanthropy, and policy makers. 4) Surely we all agree that a functioning justice system that enables people to protect their essential life needs is absolutely foundational to achieving the rule of law, especially in our democracy.

I ask that we bring fresh eyes to this problem and to our state court access crisis where these high stakes problems of low income people arise.

After all, there is good news: the crisis has given rise in recent years to an array of innovations to help serve more people who cannot afford a lawyer—such as assisted self-help services, online information and forms, and non-lawyer specialists. When properly coordinated and resourced, these solutions can work together to serve millions more people and make possible a system that provides effective legal help to everyone—when they need it, and in a form they can use.

There is a movement for transformative change underway which includes more than the usual suspects: The highest level—chief justices of the state courts— have recently issued a clarion call for meaningful access to justice for all using a full spectrum of these services and innovations: they have asked leaders in each state to unite across organizational boundaries to make it happen.

The vanguard of this movement has issued a rallying cry of “justice for all” and not just for those who can afford it. I hope all you champions of justice in the room will hear and join in that cry and think how you can contribute to this critical need.

Thank you.

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Photos used with permission, copyright Noel St John, more at www.noelstjohn.com. (click on clients)

p.s.  Here is the story on the PWF site.

Posted in 100% Access Strategy and Campaign, Access to Justice Generally | Leave a comment

Access to Justice: Why Focus On This Issue In an Era With So Many Existential Crises

Sometimes we advocates for access to justice quietly admit to each other that with so many other issues threatening our planet, the poor, and our democracy, that it is hard to argue for access to justice a a funding priority.

Without in any way undercutting the importance of all those issues, I think I may have figured out why access to justice remains such an overwhelming issue.  Interestingly, my take may suggest a way of talking about the issue that will appeal to the right as much as, or perhaps even more than, to the left.  It is simply this:

Access to justice is about ensuring that when the coercive power of the state intervenes or is called upon in relationships between individuals and, organizations, and indeed the state, that the outcome is determined on the merits, not on other factors.

As  very gross generalization, to which we can all find counter examples, criminal access issues arise when the state tries to use its coercive power to discipline an individual. Civil access is about everything else, but really when one party or anther, or both, call on the threat of the coercive power of the state to reorder their relationship.  As part of that process, the legal system has to decide, before deploying that coercive power, what happened in the case, and what the law permits and requires.  It is that decision-making process that then provides legitimacy to the specific use of the coercive power of the state.

Moreover, it is the availability of that coercive power and the process of deciding if and when to deploy it, that provide legitimacy to the state as a whole, and particularly to the availability of the coercive power.

For every political position (other than anarchist), that makes the accessibility of the justice system critical not only to their theory of the state, but also to having the means to do what they believe should be done by the state, in every area of life.

So, the trick is finding the words that will appeal to the universality of this general support.

What makes it hard is that it is an appeal to beliefs about process, not about outcomes, which makes it a harder sell to less-educated low information voters (who do not necessarily find resonance in process concepts such as evolution, statistical analysis, market dynamics, or cross-examination).  But fairness arguments, and those that appeal to the placing of limits upon the power of the state, do appeal strongly to such voters.

So, maybe the highest common denominator here is about guiding and constraining the power of courts so that they can protect us all.

Making sure courts are fair and truly open to all.

Making sure courts are there to help, not hurt.

Giving everyone the information and help they need to keep courts honest, fair and available to all when needed.

Posted in 100% Access Strategy and Campaign, Access to Counsel, Communications Strategy | Leave a comment

The LSC – Pro Bono Net – Microsoft Statewide ATJ Portal

Now that the pilot states for the ATJ Statewide Portal Project have been announced as the two states of Alaska and Hawaii, we can start to see what it is all going to look like.

At a minimum, it helps make the case for the importance of LSC for the broader justice for all movement and initiatives.  In particular all states should think about this as an example of what the Chiefs called for in their Resolution, and what the Justice for All project facilitates strategic planning for.

Here is the LSC presentation on the Project, with some of the post important slides below:

portal-1

Portal-2

Portal3

Now, there is lots and lots of hard word to do, perhaps particularly with the development of a self-learning triage machine, (my paper here), but it is wonderful to have the core vision clearly articulated and graphically laid out.

Correction Note: In an earlier version of this post, I incorrectly described this as a grant program.  Microsoft,, working with stakeholders is doing the programming, and there is no LSC grant.  My apologies.  Thanks to LSC for pointing this out so promptly.

 

 

Posted in 100% Access Strategy and Campaign, Court Management, Funding, Legal Aid, Technology, Triage | Leave a comment

Algorithm Bias and Algorithm-Based Bias Compensation

As part of my series on algorithm bias, I want to offer what I think is a potentially revolutionary take on using algorithms not just to minimize, but actually to compensate for, bias and discrimination.

The core idea is that if algorithms, as it now becoming to be understood, can reflect the bias on a society, then they can also be used to measure the extent of the impact in a particular situation and then build in the appropriate compensation into the algorithm.  In contrast to the traditional and constitutionally disfavored “affirmative action,” this is not general race or gender-based “bias,” but rather the application of neutral rules in a highly individualized context.

At the risk of being highly controversial, even a supporter of “affirmative action” could not comfortably assert that there have never ever ever been instances of unfair advantage. (Although it is very safe to say that those seeing such advantage often fail completely to understand the extent to which bias, particularly over time, has disadvantaged in the individual case.)  Conversely, it would be a very arrogant opponent of affirmative action who would assert that such an approach was in fact unfair in every case.  The overall problem is that confirmation bias means that it is really easy to become convinced of the unfairness of affirmative action, and then take that out on those who are not even its actual beneficiaries, in any sense.

In any event, the broader point is that when algorithms pick up and reflect the history of bias and its impact and make predictions based on those patters, they are, of course perpetuating bias and essentially making it impossible overcome.  Recent media coverage has focused on one small example, in which AI analysis of words has shown that works associated with some races occur more frequently near to “positive” words, and vice versa.

More practically, however, I am worried by big data developing things like career success predictions, or trial and sentencing outcomes, based on apparently neutral factors like residence, or job history, when those predictions are themselves heavily based on histories of bias (both affirmative and negative in both senses — who at Harvard is not the beneficiary of some form of affirmative action?)

Most algorithms development systems are, hopefully, savvy enough to intentionally forbid the use of illegal factors in the algorithm.  But, if you allow those factors to be included in the development of an alternative algorithm, you are half way to a measure of the extent to which prior bias has contributed a person’s current future opportunities.

Let me give an example. Lets say that an algorithm ignores forbidden factors and gives a 50% chance of completing probation.  If we then run a forbidden factor sensitive algorithm (i.e. we now do include race, gender, etc, for research purposes only) and it gives us only the same 50% chance of completing probation, then we actually know that all of the persons risk comes from long term forbidden factor related issues rather than the decision-maker’s knowledge of person’s race.  I would think such a result would be a powerful wake up call to anyone.  Moreover, the difference in the contributions of components to the score would give us data on what was making the biggest difference — housing schools, policing, etc.

If the numbers are not the same, then you see a comparison of long term versus immediate bias impact, another fascinating result.

I am sure I am making this too simple, but it seems like a start.  Shoot me down, please.

 

 

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Posted in Access to Justice Generally, Bias, Discrimination, Judicial Ethics, Metrics, Race | 1 Comment

Towards A Principles-Driven Approach to Algorithm-Based Decision-Making in the Justice System

A very recent article by Adam Liptak in the New York Times draws attention to the actual practice in Wisconsin of using algorithm-driven predictions in sentencing, and to the pending attempt to otbain review of the practice by the US Supreme Court

In March, in a signal that the justices were intrigued by Mr. Loomis’s case, they asked the federal government to file a friend-of-the-court brief offering its views on whether the court should hear his appeal.

The report in Mr. Loomis’s case was produced by a product called Compas, sold by Northpointe Inc. It included a series of bar charts that assessed the risk that Mr. Loomis would commit more crimes.

The Compas report, a prosecutor told the trial judge, showed “a high risk of violence, high risk of recidivism, high pretrial risk.” The judge agreed, telling Mr. Loomis that “you’re identified, through the Compas assessment, as an individual who is a high risk to the community.”

The Wisconsin Supreme Court ruled against Mr. Loomis. The report added valuable information, it said, and Mr. Loomis would have gotten the same sentence based solely on the usual factors, including his crime — fleeing the police in a car — and his criminal history.

At the same time, the court seemed uneasy with using a secret algorithm to send a man to prison. Justice Ann Walsh Bradley, writing for the court, discussed, for instance, a report from ProPublica about Compas that concluded that black defendants in Broward County, Fla., “were far more likely than white defendants to be incorrectly judged to be at a higher rate of recidivism.”

There are so many issues bundled in here.

There is the issue of the use of algorithms at all in the making of predictions.  This is an issue of accuracy, fairness and legitimacy.

There is the issue of transparency.  The idea of not knowing the algorithm’s factors and logic seems bizarre, particularly when defended in commercial terms.  There is the issue of powerlessness of defendants and others somehow having no control of the fact process.

Finally, there is the deeply disturbing issue of embedded bias, which may be impossible to correct for.  I will deal with the embedded bias issue in more detail in a future post.

Firstly, as to the use of algorithms in making predictions there is significant evidence that they increase accuracy and fairness.  To be specific, studies have shown that algorithm productions and decisions can be more reliable and less prone to bias than human predictions and decisions.

In this research, statistical methods applied to Terry stops showed that cops using a very simple algorithm tool would make far fewer nonproductive stops than those relying on their fast intuition. To be specific:

Remarkably, only 6 percent of stops are needed to recover 50 percent of
weapons found under the usual stop-and-frisk policy, and only 58 percent are necessary to recover 90 percent of weapons.
Moreover, to no one’s surprise:
Statistical risk assessments offer an alternative, intriguing possibility for directly deter-mining whether stops are justified. Namely, one can use a predictive model to summarize the available information in terms of the likelihood
of stop success, and then interpret “reasonable suspicion” to mean this
ex ante likelihood is suitably high(above, say, 1 percent). Taking this
approach, we find that 43 percent of CPW stops had less than a 1 percent chance of turning up a weapon. Moreover, we find striking racial dis-parities. Whereas 49 percent of blacks stopped under suspicion of CPW had less than a 1 percentchance of in fact possessing a weapon, the cor-responding fraction for Hispanics is 34 percent, and is just 19 percent for stopped whites.

Secondly, as to transparency, let me describe what we did on this front at the Midtown Community Court. When a judge asked us if we could develop an algorithm predicting compliance with alternative sanctions, some of us demurred, not because of its technical difficulty, but because of the fear of people, in effect, being sentenced based on the non-compliance of others.  Then the judge said something that will echo with me for the rest of my life: “I just do not want to set people up for failure.”

Ultimately we built a system with three major features: 1. the probabilities were based on actual data and factors shown by regression analysis to be critical; 2. the factors impact were shown in histograms so that these factors could become part of the conversation.  Counsel might for example, point out that while a defendant did not have a formal address, he did have a place to live.  In such a case, counsel would ask the judge to change the homelessness setting.  Then, you could literally watch the histograms bounce around to show the new compliance projections.  Finally, we gave the judges compliance support tools, enabling them, for example, to order reminder phone calls to the defendant.

The conclusion I draw from this is that transparency, and indeed then then enabled  discussion, is critical to the effectiveness and legitimacy of these tools.  Proprietary commercial interests can be no excuse for secret government.  Moreover, confidentiality of algorithms is not necessarily required for protection of intellectual property, the law can protect such interests without secrecy.  Most patents are public.

Finally, as to embedded bias, let me now in this post just note how many deeply entangled levels such inevitably has, preserving and projecting into the future, the harms of the past.  The question is whether such embeds are better or worse that the bias of individualized discretion.

In a future posting, I will attempt to lay out some principles that should be followed in developing and using such predictive algorithms in the justice system.

Posted in Access to Justice Generally, Criminal Law, Discrimination, Research and Evalation, Security, Technology, Transparency | 2 Comments