Author: Frank Pasquale

A Review of The Black Box Society

I just learned of this very insightful and generous review of my book, by Raizel Liebler:

The Black Box Society: The Secret Algorithms that Control Money and Information (Harvard University Press 2015) is an important book, not only for those interested in privacy and data, but also anyone with larger concerns about the growing tension between transparency and trade secrets, and the deceptiveness of pulling information from the ostensibly objective “Big Data.” . . .

One of the most important aspects of The Black Box Society builds on the work of Siva Vaidhyanathan and others to write about how relying on the algorithms of search impact people’s lives. Through our inability to see how Google, Facebook, Twitter, and other companies display information, it makes it seem like these displays are in some way “objective.” But they are not. Between various stories about blocking pictures of breastfeeding moms, blocking links to competing sites, obscurity sources, and not creating tools to prevent harassment, companies are making choices. As Pasquale puts it: “at what point does a platform have to start taking responsibility for what its algorithms go, and how their results are used? These new technologies affect not only how we are understood, but also how we understand. Shouldn’t we know when they’re working for us, against us, or for unseen interests with undisclosed motives?”

I was honored to be mentioned on the TLF blog–a highly recommended venue! Here’s a list of some other reviews in English (I have yet to compile the ones in other languages, but was very happy to see the French edition get some attention earlier this Fall). And here’s an interesting take on one of those oft-black-boxed systems: Google Maps.

Highly Recommended: Chamayou’s The Theory of The Drone

robocop1924_02Earlier this year, I read a compelling analysis of drone warfare, Gregoire Chamayou’s The Theory of The Drone. It is an unusual and challenging book, of interest to both policymakers and philosophers, engineers and attorneys. As I begin a review of it:

At what point do would-be reformers of the law and ethics of war slide into complicity with a morally untenable status quo? When is the moralization of force a prelude for the ration­alization of slaughter? Grégoire Chamayou’s penetrating recent book, A Theory of the Drone, raises these uncomfortable questions for lawyers and engineers both inside and out of the academy. Chamayou, a French philosopher, dissects legal academics’ arguments for targeted killing by unmanned vehicles. He also criticizes university research programs purporting to engineer ethics for the autonomous weapons systems they view as the inevitable future of war. Writing from a tradition of critical theory largely alien to both engineering and law, he raises concerns that each discipline should address before it continues to develop procedures for the automation of war.

As with the automation of law enforcement, advocacy, and finance, the automation of war has many unintended consequences. Chamayou helps us discern its proper limits.

Image Credit: 1924 idea for police automaton.

From Territorial to Functional Governance

Susan Crawford is one of the leading global thinkers on digital infrastructure. Her brilliant book Captive Audience spearheaded a national debate on net neutrality. She helped convince the Federal Communications Commission to better regulate big internet service providers. And her latest intervention–on Uber–is a must-read. Crawford worries that Uber will rapidly monopolize urban ride services. It’s repeatedly tried to avoid regulation and taxes. And while it may offer a good deal to drivers and riders now, there is no guarantee it will in the future.

A noted critic of the sharing economy, Tom Slee, has backed up Crawford’s concerns, from an international perspective. “For a smallish city in Canada, what happens to accountability when faced with a massive American company with little interest in Canadian employment law or Canadian traditions?”, Slee asks, raising a very deep point about the nature of governance. What happens to a city when its government’s responsibilities are slowly disaggregated, functionally? Some citizens may want to see the effective governance of paid rides via Uber, of spare rooms via AirBnB, and so on. A full privatization of city governance awaits, from water to sidewalks.

If you’re concerned about that, you may find my recent piece on the sharing economy of interest. We’ll also be discussing this and similar issues at Northeastern’s conference “Tackling the Urban Core Puzzle.” Transitions from territorial to functional governance will be critical topics of legal scholarship in the coming decade.

The Larger Debate on Federal Credit Programs

Earlier today I criticized a New York Times proposal regarding law school loans. Whatever you think about the proper cost of legal education, the NYT is off-base, because it ignores the role of private finance in our economy.

Education finance policy is difficult because it raises fundamental issues in political economy and public finance generally. It also only makes sense with some historical context.

Back in the 1970s and ’80s, an anti-tax coalition operated on the presumption that state support for education had to drop. Financialization plugged the resulting hole in funding: responsibility for paying for school shifted from (relatively well-off) taxpayers to students. By the 1990s, private lenders realized that they could make tremendous profits from such loans–particularly if they could privatize profits, while sticking the government with losses. That arrangement became so scandalous by 2010 that it was curtailed as part of PPACA. The federal government directly offers many loans now.

But the private lenders did not simply give up. Current efforts to “reform” federal student loans are part of their much larger effort to shrink federal credit programs. The basic idea is simple: to force the US government to account for its credit programs as if it could and should charge interest rates (and impose terms) prevailing among private lenders.

It’s a strange move, especially since, as Matt Yglesias states, “costs reported in the budget are generally lower than the costs to the most efficient private financial institutions because the government’s costs of funds are in fact lower.” David Kamin has also questioned this accounting tactic. But if it succeeds, there is little rationale for any federal credit program–it will simply duplicate extant private lenders’ work. That redundancy will lead to further privatization of federal credit programs, raising costs to borrowers and diverting more money to the finance sector. It’s not a great outcome for students–but it is a logical outgrowth of reflexive hostility to the type of state intervention that actually could improve students’ finances while maintaining quality.

Law’s Nostradamus

The ABA Journal “Legal Rebels” page has promoted Richard Susskind’s work (predicting the future automation of much of what lawyers do) as “required reading.” It is a disruptive take on the legal profession. But disruption has been having a tough time as a theory lately. So I was unsurprised to find this review, by a former General Counsel of DuPont Canada Inc., of Susskind’s The End of Lawyers?:

Susskind perceives a lot of routine in the practice of law . . . which he predicts will gradually become the domain of non-professional or quasi-professional workers. In this respect his prediction is about two or three decades too late. No substantial law firm, full service or boutique, can survive without a staff of skilled paralegal specialists and the trend in this direction has been ongoing since IT was little more than a typewriter and a Gestetner duplicating machine. . . .

Law is not practiced in a vacuum. It is not merely a profession devoted to preparing standard forms or completing blanks in precedents. And though he pays lip service to the phenomenon, there is little appreciation of the huge volume of indecipherable legislation and regulation that is promulgated every day of every week of the year. His proposal to deal with this through regular PDA alerts is absurd. . . . In light of this, if anything in Susskind’s thesis can be given short shrift it is his prognostication that demand for “bespoke” or customized services will be in secular decline. Given modern trends in legislative and regulatory drafting, in particular the use of “creative ambiguity” as it’s been called, demand for custom services will only increase.

Nevertheless, I predict Susskind’s work on The Future of the Professions will get a similarly warm reception from “Legal Rebels.” The narrative of lawyers’ obsolescence is just too tempting for those who want to pay attorneys less, reduce their professional independence from the demands of capital, or simply replace legal regulation of certain activities with automated controls.

However, even quite futuristic academics are not on board with the Susskindite singularitarianism of robo-lawyering via software Solons. The more interesting conversations about automation and the professions will focus on bringing accountability to oft-opaque algorithmic processes. Let’s hope that the professions can maintain some autonomy from capital to continue those conversations–rather than guaranteeing their obsolescence as ever more obeisant cogs in profit-maximizing machines.


Greene & Kesselheim vs. Kardashian

Jeremy Greene and Aaron Kesselheim have a fascinating piece on the new challenges facing the FDA as selfie-driven marketing reaches Instagram. After promoting an anti-nausea drug (for morning sickness, not in anticipation of celebrity-phobic viewers), Kardashian had to follow up with the following “corrective advertisement:”

#CorrectiveAd I guess you saw the attention my last #morningsickness post received. The FDA has told Duchesnay, Inc., that my last post about Diclegis (doxylamine succinate and pyridoxine HCl) was incomplete because it did not include any risk information or important limitations of use for Diclegis.

As Greene and Kesselheim observe:

The rise of social media has raised a parade of new questions for the agency: How is it supposed to monitor person-to-person pharmaceutical recommendations? Can something be considered an advertisement if it’s only 140 characters long? Who is responsible for the accuracy of tweets about a drug? But this isn’t the first time evolving technology has forced the FDA to rethink its role. Before Instagram, television advertising was once new; before television, radio. Since the agency’s founding, its ability to regulate drugs has been consistently challenged by new forms of communication.

For more on the controversy, check out The Week in Health Law, where Nicolas Terry and I discuss the case with Kesselheim. And don’t worry, it’s not all about Kardashians–we also cover a new study of ACOs, proposed budget cuts for AHRQ, worry over unintended consequences of readmission penalties, and EHR gag clauses (and developer codes of conduct).

The Week in Health Law, Back to School Edition

If you want to learn about a fast-changing field, check out health law. It’s hard to keep track of all the recent developments in subfields of it (bioethics, insurance regulation, malpractice, EHRs and privacy, among others), let alone the field as a whole. Fortunately, there are many scholars and practitioners who are diligently working on all these issues. Nic Terry interviewed many of them for our “Back to School” podcast on health law.

Here are the contributors, with links to articles on the issues they discussed:
Micah Berman – PBS Unnatural Causes
Erin Fuse Brown – Physician Self-Referral Updates (STARK)
Glenn Cohen – Egg freezing and egg banking: empowerment and alienation in assisted reproduction
Brietta Clark – Pickup v. Brown
Nicole Huberfeld – Armstrong v Exceptional Child Center Inc. 
Elizabeth Weeks Leonard – King v. Burwell
Frank Pasquale – Narrow Networks
Ross Silverman – Should childhood vaccination against measles be a mandatory requirement for attending school? Yes
Norman G. Tabler, Jr.–  Can an Arbitrator Rule Against a Hospital for Not Violating the Anti-Kickback Statute?
Nicolas Terry – North Carolina State Board of Dental Examiners v. Federal Trade Commission

Show notes and more are at If you have comments, an idea for a show or a topic to discuss you can find us on twitter: @nicolasterry and @HealthPI (for my health tweets) or @FrankPasquale (for law & tech, surveillance, algorithms & political economy). @WeekInHealthLaw is the show feed.


Berlusconi-fication: Cutting Out the Middle Man

2630085549_eebd0ce895_oRecently Rick Perlstein described American elections as a “plutocrat’s right to choose.” Such concerns have also been raised by conservative media. A political economy premised on the trading of money for power, and power for money, gives rise to an oligarchic constitutional order. Political science responds with “investor theories” of politics, where the key players are not the voters, but the donors. Politicians become vessels for their agendas.

As Jeffrey Winters observes, many types of oligarchies can develop. Americans might be interested in learning more about what might be deemed a “direct” oligarchy, where one-time donors forego buying the favor of leaders, and simply run for office themselves. Some very wealthy candidates of the right and left have fit this bill, and done passably as leaders. But the independence afforded by great wealth can also lead to flamboyantly erratic behavior, particularly among men long unaccustomed to accounting for their actions to others. Consider, for instance, the billionaire Silvio Berlusconi, a long-time Italian leader:

Perhaps the most famous example of Berlusconian rule-bending—and the one with the most popular results—was his takeover of Italian TV. Television was introduced to Italy, in 1954, through a single channel, RAI, administered by the ruling Christian Democratic Party; the highlight of its programming was the Pope’s Sunday-morning Mass, which is still on the air. For decades, the government controlled television: in the seventies, political parties were allotted news coverage in exact proportion to their votes in parliament. Then, in 1976, the Italian Supreme Court ruled that private broadcasting could be allowed on a local level. Berlusconi, who had made a fortune building suburban housing developments, began buying up local stations and broadcasting the same content on all of them. In order to comply with the letter of the court’s ruling, he staggered the broadcasts by a few seconds on each network.

Technically, these were local broadcasts; effectively, as Berlusconi made clear to advertisers, he had a national market, which he glutted with American programs like “Dallas,” “Dynasty,” and “Falcon Crest”—stories of sex and money…Berlusconi…believed that appetites existed to be stoked and sated, and he imported both American entertainment and the advertising environment that supported it. “I’m in favor of everything American before even knowing what it is,” he once told the Times.

Despite a long record of self-dealing, scandal, and outrageous statements, Berlusconi spent 9 years as Prime Minister. He had great appeal as a rascally anti-hero, exulting in a mix of la dolce vita and la vida loca. Thank goodness America, a mature democracy, could never fall for such a dubious mix of wealth and celebrity.

Photo Credit: CluPix.

A Tribute to Marc Poirier

marc-poirier-176x220I want to mark the passing of a former colleague of mine, Seton Hall’s Marc Poirier. Marc was an exceptional scholar, teacher, and colleague.

Marc was a deeply learned man, conversant in areas ranging from the jurisprudence of interpretation to the science of global warming. He wrote on property, environmental law, and civil rights, and combined the fields in innovative ways. His “Virtues of Vagueness in Takings Law” was both widely cited, and elegantly argued. Essays like “Science, Rhetoric, and Distribution in a Risky World” were philosophically informed readings of fundamental controversies in environmental policy. Throughout his scholarship, there was a concern for the marginal: the victims of environmental racism, sexual orientation discrimination, climate change, and many other contemporary scourges. But there was also a wise awareness of the limits of law and the complexities of advocacy.

It is thanks to the efforts of people like Marc that marriage equality has come to America. I say this not only because an article like “The Cultural Property Claim in the Same-Sex Marriage Controversy” clarified the stakes of the term “marriage” so eloquently and empathetically. Marc’s service and faculty advising modeled, for all of us, a patient way of working for justice in slow-moving courts and agencies, and in institutions affiliated with a “church that can and cannot change.” Marc explored gender and LGBTQ equality in so many dimensions: legal, sociological, anthropological, economic. I have little doubt that his work will be consulted again and again, as scholars reflect on his illuminating efforts to balance liberty and equality, tradition and innovation, individual self-expression and institutional self-governance.

Marc was also deeply involved in the community. He devoutly maintained a meditation practice, both as a leader of group meditation sessions and a member of area sanghas. He offered his teaching to all at Seton Hall, and organized sittings and other opportunities for us to experience meditation’s compelling combination of relaxation and focus. While some might see meditation as an unlikely practice for lawyers, Marc helped us understand both professional judgment and spiritual practice as complementary ways of gaining a broader perspective on reality. Groups like the Association for Contemplative Mind in Higher Education have shown how important these opportunities can be for both faculty and students alike. I will always be grateful to Marc for bringing these practices to Seton Hall.

Marc was also a very committed teacher. He went above and beyond in his administrative law class to include extra material on state and local government that few other courses in the area covered. The standard for his seminars was exceptionally high, and he’d have frequent meetings with students to help them perfect their papers. He was available all the time, and always happy to talk.

Finally, I will always remember Marc as wonderfully effervescent. He was such a delight to have lunch or dinner with. And he would talk about just about anything: how to argue a difficult point in an article, how to navigate administrative mazes, or what were the best parks and beaches in New Jersey. He was such a good listener. I think this was part of his meditative practice: to open himself up to whatever colleagues or students wanted to chat about, knowing exactly when to inject a note of skepticism, a considered reflection, a guffaw.

I will so miss those conversations with Marc. There is some small sense of consolation in reading his articles, artifacts of a gentle yet meticulous intellect making connections among concepts that only someone of his deep understanding and learning could accomplish. But I wish we’d had more time to learn from him. I hope I can do some justice to his memory by trying to imitate the empathy, reflectiveness, and openness he showed to so many.

Three on the Gig Economy

July has been a big month for public discussion of the gig economy. For those interested in the issue, here are three of my recent pieces:

1) Is Your Digital Boss Cheating You? (part of a collection of “5 Ways to Take Back Tech”)

2) Serfing the Web: On-Demand Workers Deserve a Place at the Table (with Trebor Scholz). If you have comments for the FTC on the gig economy, their deadline is August 4.

3) Uber and the lawlessness of ‘sharing economy’ corporates (with Siva Vaidhyanathan)

In related news: for anyone interested in the future of legal regulation of the interaction between software and work, please submit an abstract to “Unlocking the Black Box: The Promise and Limits of Algorithmic Accountability in the Professions” (due by August 23).