New Technology

Law School Simulator 2020

December 6, 2020
Legal Education, New Technology

Ian Colby, MJLST Staffer

You walk into the classroom. You read the cases and statutes last night. You wrote out a few notes. You think you’re ready. In this classroom, though, you don’t wait for the professor to get the PowerPoint ready. Instead, you slip on your virtual reality headset and start the simulation.

Now you’re sitting in the boardroom of a major corporation with the board of directors. Your headset lets you hear the simulated directors’ nervous talk. You get a few minutes to take in the glass paneling, the city skyline, and the furrowed brows of the worried directors. You can pick up and read reports on the table. You can select dialogue choices to chat with the directors. While the people and place aren’t photorealistic, it’s good enough to immerse you. When class starts, so does the meeting.

“Welcome, everyone,” the simulated President begins, “err…I’ve called this meeting to apprise you of a developing situation and to get some input from our counsel [you].” The president then lays out a series of facts that go from bad to worse: the EPA has identified a toxic leak in a river adjacent to one of the company’s facilities. While the corporation has urged inspections for months, your dialogue with the directors indicates employees skip them. Rumors float that the on-site manager knew about a leak and covered it up. Now the toxic discharge has polluted the nearby river, residents are getting sick, and the EPA may file suit. The president turns to you. She asks, “Okay, Counsel, what is our first move?”

Law School is a finite period of time in which the expectations start at “don’t even think about saying something possibly constituting legal advice” and ends at “you are qualified to evaluate, counsel, negotiate, and advocate for real clients without supervision.” Other than those students who go onto BigLaw jobs (where the firm grudgingly expects to train the new lawyers instead), these three years are it. For the majority of that time, though, becoming a lawyer involves passive learning: reading and sitting in lectures. At the University of Minnesota, students must attend in-person, passive learning courses for 2/3rds of the credits to graduate. The Law School caps other learning methods. Students hope to absorb enough legal knowledge from these passive methods to do well on the course’s lone exam.

Law schools generally wish to develop lawyers that not only know the law, but who have the necessary skills to serve future clients. For example, of the 23 bulleted learning outcomes sought in a University of Minnesota Law School graduate, only 2 directly state that “knowing the law” is the expectation (Under “Client Service”, there is “Demonstrate broad knowledge of the law and the legal system of the United States” and under Ethics & Professionalism, there is “Know and comply with rules of professional conduct.”) The other 21 constitute crucial skills that budding lawyers cannot absorb from reading cases, passively listening to lectures, or trying to keep their heart still as a 1L, hoping they dodge the cold call. For both learning the law and developing crucial lawyering skills, passive learning means inefficient learning. Jennifer M. Cooper & Regan A.R. Gurung, Smarter Law Study Habits: An Empirical Analysis of Law Learning Strategies and Relationship with Law GPA, 62 St. Louis U. L.J. 361 (2017). While you may be expected to master those crucial lawyering skills, most of your credits do not work to help you develop them.

Now you actively respond to the President. Your choices drive the next interaction with the board. The simulation tests your ability to work with the myriad director personalities, gather the necessary information, demonstrate the application of the law, and maintain a poised tone. The simulation does not limit you to the boardroom. You can instantly immerse yourself in the sights and sounds of the waterfront, watch the on-site manager’s facial expressions as you interview him, or review a 3D model of the toxic substance.

Active, simulated learning, on the other hand, is a dramatically more efficient way to learn knowledge and skills. Active learning means learning by doing. Simulations, a type of active learning, allow students to learn by working through a problem in complex, real-time interactions in which they will need to apply that learning. Simulations provide instant feedback on students’ application of knowledge within these real-time scenarios. Finally, simulations provide experiences that a student may have never witnessed before. Many other professions—particularly those that “require mastery of complex knowledge and skills where the stakes for getting it right are high”—utilize simulations to teach the necessary skills and knowledge. Medical professionals, military personnel, firefighters, astronauts, and pilots all perform simulations as a necessary part of their training.

Law schools, recognizing the benefit of active learning and simulation training, have taken steps toward incorporating simulations into the curriculum. At Minnesota, for example, first year students must take Law in Practice. Law in Practice is a simulation course which provides real-time scenarios in which students must elicit and evaluate information, advocate for a client, and negotiate deals. The simulation puts the student on the hot seat: Minnesota’s program is mandatory, provides real-life actors in real-time scenarios, and students demonstrate their skills with local attorneys, judges, and mediators.

However, these real-life simulations are costly, logistically complex, and usually limited to what’s available. Law schools tend to provide simulations separately from doctrinal classes. For those law schools that cannot or do not arrange for real actors and legal professionals, the simulation may lose immersion.

To offer similar benefits as these simulations with fewer costs, and to integrate those benefits into the greater curriculum, law schools should invest in digital simulations. A digital simulation means any interactive, immersive experience that uses technology to provide that experience. While digital simulations can include the latest tech has to offer, such as virtual reality headsets, it does not have to. Interactive CALI lessons can be digital simulations. Video games can be digital simulations. The level of technology does not matter as long as the simulation is immersive, interactive, and provides feedback.

A digital simulation, if done well, would be relatively cheap, repeatable, and provide active, simulated learning opportunities for students. The technology for digital simulations has progressed enough to be readily available—indeed, a student’s smartphone may be used for virtual reality simulations. Law schools could implement digital simulations with less friction than other active learning techniques. The other professions mentioned above have increasingly looked to utilizing digital simulations as a way to provide the benefits of active learning, without the added costs.

There are no defined limits to the variety of clients in a digital simulation. Real-life simulations and other experiential courses depend on availability. Whatever is available becomes the focus of the experience. By contrast, only the imagination of a creator limits the variety of digital simulations. Even if the local market cannot provide a niche area of law, a simulation could. Providing the ideal voice actor becomes easier.

You made a mistake and blurt out that the board should shred all company documents. But you’re not worried. If you make a drastic mistake, the simulation can give you a prompt to try again. Instant feedback. You asked the professor after class about it. You can attempt a different choice that night. Instead of shredding all documents, you advise the board to preserve emails, reports, and other documents.

Digital simulations have the added benefit of providing equity of experience. Unlike the real world, a digital simulation costs little to provide students with exposure to life, the world, or the legal industry. Further, students may repeat simulations with no additional cost until they become comfortable with the topic. By way of example, imagine that you are a law student who has never attended a boardroom meeting (shock!), never seen an easement on a plat, or never attended a courtroom hearing. A digital simulation would allow you to gain the experience of that context while also coming to understand the law. All other items being equal, would a student who has filed hundreds of complaints for a previous employer and a student who has no previous legal industry experience start out on the same footing in a Civil Procedure class? A digital simulation provides a chance for the latter student to catch up.

You remember the reading about environmental clean-up regulations, but this is your first time applying it. You “pause” the interactions with the board as you work your way through the problem. You don’t worry about wasting a professor’s time. You decide to keep the board paused, so you can check out the site itself. By the time you reach the final test in this class, you’ve lived the law as much as you’ve read about it.

Law school provides a crucial time period to develop students’ skills in communication, client services, collaboration, professionalism, legal analysis, and legal knowledge without real world consequences. So why not introduce the cheap, efficient method of digital simulation to adequately develop these skills in the time we have?

When is an invention disclosure or patent application a trade secret?

May 26, 2020
Intellectual Property, New Technology, Patents

Philip Alford, MJLST Staffer

Patents and trade secrets are often presented as a dichotomy of legal protections, distinguished by disclosure versus secrecy. Under the patent bargain, the government offers patent protections in exchange for the public disclosure of new and useful inventions. 35 U.S.C. §101. Various trade secret protections, on the other hand, are available when a party has suffered harm from the misappropriation of secret information. See, e.g., 18 U.S.C. §1863 and Minn. Stat. § 325C et seq. While the two areas of law are complementary, they do not perfectly align. Although trade secrets generally refer to information, this information can be embodied by a patented article, a method, or in one case, a pineapple. See Del Monte Fresh Produce Co. v. Dole Food Co., 136 F. Supp. 2d 1271 (S.D. Fla. 2001).

Trade secret protections are lost as soon as the material is disclosed to the public, including the publication of patent applications by patent offices occurring 18 months after first filing. This is the case even if the patent application never matures into a patent. Inventors should be aware that giving up secrecy in exchange for pursuing a patent is not a guaranteed exchange. To obtain a patent, inventors need to convince the Patent Office that their invention is (1) new, (2) a useful and non-obvious contribution to the art, and (3) described in sufficient detail so that others would be able to make and use the invention. 35 U.S.C. §§101, 102, 103, 112. For this reason, inventors should undertake at least a preliminary analysis to determine whether the requirements for a patent are reasonable satisfied before making any decision to give up potential trade secrets. This analysis would typically involve finding a patent attorney, who can together with the inventors to conduct a search, review for potentially relevant art, and best understand the advantages of the invention before drafting the patent application.

Trade secret protection cannot be assumed as a default. Not all secret inventions are eligible for trade secret protections—even inventions that would otherwise satisfy the requirements for a patent. A secret invention is only eligible for trade secret protection if (1) it is secret, i.e., not generally known or readily ascertainable; (2) it confers an economic or competitive advantage; and (3) it is subject to reasonable efforts to maintain secrecy. See 18 U.S.C. §1863 and Minn. Stat. § 325C et seq. If inventors are considering whether to forgo filing a patent application, or abandon an unpublished application in favor of maintaining secrecy, the inventors must consider whether the resulting secrecy will, in fact, afford any trade secret protections at all. On one hand, a patentable but unpublished disclosure will typically satisfy the secrecy requirement if it also satisfies the novelty and non-obviousness elements of patentability. Similarly, the type of subject matter for which a patent is pursued is typically of the type that would confer an economic or competitive advantage if withheld from competitors. On the other hand, trade secret protections require reasonable efforts to maintain trade secrecy. No part of patentability imposes a similar requirement.

The reasonable effort requirement for trade secret protection is not as likely to be satisfied in the normal course of invention. What exactly is meant by “reasonable efforts” in a trade secret context? Reasonable efforts differ based on the nature of the information, the field of endeavor, and the risks to secrecy. Generally, to show reasonable efforts, parties should plan in advance to protect their secrets, for example, by using confidentiality agreements, internal employee policies, vendor policies, and electronic information policies. Such policies should be monitor compliance, remind employees that information is secret, and limit access to the secret information, e.g., via locks, passwords, and security. The extent of effort deemed reasonable will be based on the value of the information, the cost of precautions, and the likelihood that secrecy will be lost. Maintenance of absolute secrecy is not required, nor is it necessary to take steps that will be ineffective to protect the secret. See E. I. du Pont de Nemours & Co. v. Christopher, 431 F.2d 1012 (5th Cir. 1970).

Inventors may intend to forgo patent or trade secret protection in favor of the other, only to subsequently learn that they lack the protection of either. Inventors and patent practitioners should be mindful that coverage gaps can arise due to the differing requirements for patent and trade secret protections.

Coronavirus Accelerates the Switch to Remote Online Notarization

May 13, 2020
COVID-19, New Technology

Stephen Wood, MJLST Staffer

The legal profession has been relatively quick to adapt to challenges posed by the COVID-19 pandemic. Despite widespread stay-at-home orders, technology enables lawyers and the courts to continue to conduct much of their business that has historically been required to be done in person. While telephonic U.S. Supreme Court oral arguments are unlikely to persist once things normalize, other changes may be here to stay. One example is the move to Remote Online Notarization. Official transactions such as the conveyance of real estate, granting of powers of attorney, and establishment of a prenuptial agreements must be certified by a notary for the purpose of preventing fraud and forgery. Before the pandemic, a majority of states still required this process to be conducted in person.

The first state to authorize RON was Virginia in 2011, and since then, twenty-one states had followed their lead. Nearly all the of the remaining states had laws introduced to authorize RON, but for one reason or another, they had not yet been passed. In the last few months, this has quickly changed. At least 44 states now authorize the process to be conducted remotely. Wisconsin is one state that has done so through state law rather than executive order. The Act, 2019 Wisconsin Act 125, was passed on March 3, 2020 and takes effect May 1, 2020. Until then, an emergency rule authorizes the same. However, there are limitations as to which documents apply. Meanwhile, the vast majority of states have authorized RON through executive orders or proclamations by their governors. Even before the pandemic, it was predicted that RON would become the norm, but COVID-19 is certainly speeding up the process.

COVID-19, Remote Technology, and Due Process in Administrative HearingsBrent

May 13, 2020
Administrative Law, COVID-19, New Technology

Brent Murcia, MJLST Staffer

Wherever you look, it seems like COVID-19 is dominating all the headlines these days (even this blog!)—and with good reason. The pandemic is a public health crisis on a massive scale, forcing all of us to change our lives to “socially distance” and help “flatten the curve.”

As of April 7, 95% of Americans were under some sort of “stay at home” order. With life-as-usual on hold, many people are turning to technology to keep things running. For example, in Boston, some celebrated St. Patrick’s Day with virtual concerts. Some people celebrated Earth Day by tuning into National Park webcams. And of course, everyone from Minnesota Law students to the UK Cabinet is holding meetings (and happy hours!) on Zoom.

The legal system, of course, is not immune from the effects of this pandemic. Staff at government agencies, private law firms, and nonprofits are working from home. Some state legislatures are allowing remote voting for the first time. Many prisons have suspended in-person visits, including legal visits. Courts across the country are closed, delayed, or operating remotely. In section 150002 of the recent COVID-19 relief bill (the “CARES Act”), Congress authorized emergency video and telephone hearings for a variety of court proceedings, including detention hearings and felony pleas and sentencing. Even the United States Supreme Court will be moving to argument over the phone in May.

As with many things in society these days, a number of these changes would have been unthinkable two months ago. Who could have imagined that certain courts, many of which require paper filings and ban the use of electronic devices in courtrooms, would soon holdarguments via video conference? The Supreme Court itself has famously never allowed live broadcasts of arguments (a subject of considerable debate). But with arguments moving to the phone, the Court will now allow the public to listen in real time.

As one would expect, the rollout of these sudden changes has not been entirely smooth. In many courts, things have gone well, with only “momentary audio hiccups and minor glitches.” But in March, a D.C. Circuit judge was dropped from an argument and missed several minutes. Last week, a Florida judge complained of lawyers making court appearances shirtless or in pajamas. One Australian barrister described remote court hearings as follows: “The judge couldn’t see anyone; lines dropped out regularly; witnesses didn’t know where to go; … subpoenaed material could not be accessed by anyone; feedback made it impossible to proceed.”

Some of these problems are silly—in the grand scheme of things, we have bigger worries than appropriate Zoom dress codes. But others have the potential to fundamentally impact proceedings—possibly affecting parties’ due process rights. This blog post briefly explores some of the issues that COVID-19 has brought to the forefront, with a particular focus on administrative processes. (For a comprehensive listing of the ways in which different federal administrative agencies are holding their hearings, see this great blog post from the Yale Journal on Regulation).

Remote Hearings—An Overview

Remote proceedings are not exactly new. Even before the pandemic took hold, CourtCall—a company that facilitates remote appearances—had hosted six million such appearances since 1996. Many courts have long allowed certain remote appearances (sometimes requiring the consent of the parties, sometimes not). According to the Administrative Conference of the United States (ACUS), some agencies already conducted thousands of video hearings a year even before the pandemic. Still, until recently, such appearances were the exception, not the norm. And the use of remote technologies has generated controversy, even before its sudden widespread adoption.

Problems with Remote Hearings

Some people have expressed skepticism about the use of remote hearings, emerging in part from evidentiary concerns. As the BBC recently reported, video calls can make it “harder to process non-verbal cues like facial expressions, the tone and pitch of the voice, and body language.” That BBC story also referred to a 2014 study which found that even a 1.2 second transmission delay on a videoconferencing system “made people perceive the responder as less friendly or focused.” These effects can matter, considering the importance of perception and non-verbal cues in courtrooms. Additionally, one 1996 study in the University of Michigan Journal of Law Reform (before the advent of video technology) found that “parties to telephone hearings are less likely to exercise their rights to submit evidence through witnesses and documents than are parties to in-person hearings.”

Remote hearings can be particularly problematic in immigration hearings, which often involve language interpretation and the recounting of traumatic events. In early March—even before COVID-19 closures began—immigration courts in Texas began a pilot program to hold more hearings for unaccompanied children over videoconference, attempting to reduce a backlog of cases. One immigration attorney, forced by the virus to work with clients remotely, described the difficulty of doing so: “[w]e’re asking kids to open up and talk about the most personal and traumatic experiences of their lives and not even be making direct eye contact with them.” Remote hearings can affect the outcome of cases; a 2017 Government Accountability Office (GAO) study found that video hearings caused difficulties with language interpretation and affected immigration judges’ assessments of respondents’ credibility. A study in the Northwestern University Law Review found that respondents in video hearings were more likely to be deported. The American Immigration Lawyers Association opposes the use of video hearings for immigration for these reasons.

Problems with remote hearings also arise in settings that require public participation—like rulemakings and permit applications. In Minnesota, for instance, the state Pollution Control Agency (MPCA) recently delayed publication of a proposed Clean Cars rule, recognizing the importance of in-person comment and“ensuring that the public has opportunity to participate in the rule-making process.” At the same time, the MPCA moved forward with public meetings about Clean Water Act permits for the controversial Line 3 pipeline project, holding the meetings over the phone. More than 1,600 people called into the meetings, but only 400 were able to speak due to high volume. Some local organizers collected video comments, attempting to put a face to the public input, and called for the agency to hold in-person meetings once the pandemic has passed.

Finally, depending on the circumstances, remote hearings can also run afoul of specific public process requirements and open meeting laws. Lawyers in New Jersey, for instance, have highlighted a number of legal concerns arising from virtual land use board hearings. Laws about when and how meetings may be held electronically vary state to state; and amidst the pandemic, governors and legislatures have taken varying steps to clarify that authority. In Minnesota, the state legislature amended the open meeting law to account for the pandemic, expanding the circumstances under which meetings may be held remotely.

Benefits of Remote Hearings

Despite all of these problems, some lawyers have actually long advocated for an increase in virtual hearings. One common argument is that online hearings can help improve access to justice, addressing backlogs of millions of cases in some courts and agencies. Some argue that our current legal process is built more around “serving a place than serving justice.” One paper surveyed a number of other reasons why remote hearings may help in some contexts. Remote hearings can help in international cases or cases where the parties and witnesses live far apart; they can help with safety and security for parties, witnesses, and judges; they can help alleviate scheduling issues; and they can help in cases where traveling to court presents a significant burden for an individual, perhaps for economic reasons or due to a disability. (For a thorough summary of some of the ways in which technology—not just remote hearings—can help improve access to justice, see this 2012 article in the Harvard Journal of Law & Technology).

Further, while some arguments against remote hearings focus on the importance of non-verbal cues in proceedings, others have disputed that importance. Some research has pointed out that there can be as much pseudoscience as science in attempts to interpret witness behavior. Some have questioned whether witness demeanor is even useful at all for assessing credibility. And while non-verbal cues can and do shape judge and jury reactions, this may not always be a good thing—reactions to certain behaviors can be shaped by implicit bias, furthering racial and other disparities. More research is likely needed on whether these disparities are exacerbated or lessened by different types of virtual hearings.

Finally, remote court hearings can create significant cost savings. For example, according to ACUS, the Social Security Administration’s Office of Disability Adjudication and Review saved $59 million in 2010 from using video hearings. These savings matter to people who have to navigate the legal system. A 2014 NPR investigation found, for example, that “the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders.” Many defendants are required to pay hundreds or thousands of dollars in court costs, even for constitutionally required services. Reducing court costs could help lower fees, reducing the burden on low-income parties. Additionally, law firms are saving money from virtual hearings too, potentially reducing the cost of legal services and improving access to representation down the road.

The potential for improved access and reduced costs from virtual hearings is promising, but comes with an important caution. As British lawyer Richard Atkinson wrote for The Guardian in 2012: “A more efficient justice system is possible, but the government needs to recognise that speed does not always equate to efficiency and efficiency should never be promoted over justice.”

Looking Forward

As the effects of social distancing wear on, many of us look forward to the day when we can finally go “back to normal.” Without question, it will be a happy day when we can be with our loved ones, our friends, and our coworkers again. Lawyers will also be happy to return to the office, meet with clients in person, and advocate in real courtrooms.

At the same time, questions about remote hearings will not go away. Looking backward, some litigators will likely contest whether certain remote hearings conducted during COVID-19 were permissible. Looking forward, others will use our social distancing experience to argue that we should expand or reduce the use of remote hearings in the future.

There are no universal answers to these questions—the appropriateness of remote hearings depends on the applicable laws and the context of the case. In some cases, remote hearings can adversely affect parties’ rights; in others, they can actually improve access to justice. As one English judge wrote recently, “[i]t remains the obligation of all involved and at all stages of the hearing, to continue to evaluate whether fairness to all the parties is being achieved. Fairness cannot be sacrificed to convenience.” Our task, in these unprecedented times, is to move forward as best and as fairly we can—and to learn from these new experiences to better inform our approach to technology in the courtroom in the future.

COVID-19, Remote Technology, and Due Process in Administrative Hearings

May 13, 2020
Administrative Law, COVID-19, New Technology

Brent Murcia, MJLST Staffer

Wherever you look, it seems like COVID-19 is dominating all the headlines these days (even this blog!)—and with good reason. The pandemic is a public health crisis on a massive scale, forcing all of us to change our lives to “socially distance” and help “flatten the curve.”

As of April 7, 95% of Americans were under some sort of “stay at home” order. With life-as-usual on hold, many people are turning to technology to keep things running. For example, in Boston, some celebrated St. Patrick’s Day with virtual concerts. Some people celebrated Earth Day by tuning into National Park webcams. And of course, everyone from Minnesota Law students to the UK Cabinet is holding meetings (and happy hours!) on Zoom.

The legal system, of course, is not immune from the effects of this pandemic. Staff at government agencies, private law firms, and nonprofits are working from home. Some state legislatures are allowing remote voting for the first time. Many prisons have suspended in-person visits, including legal visits. Courts across the country are closed, delayed, or operating remotely. In section 150002 of the recent COVID-19 relief bill (the “CARES Act”), Congress authorized emergency video and telephone hearings for a variety of court proceedings, including detention hearings and felony pleas and sentencing. Even the United States Supreme Court will be moving to argument over the phone in May.

As with many things in society these days, a number of these changes would have been unthinkable two months ago. Who could have imagined that certain courts, many of which require paper filings and ban the use of electronic devices in courtrooms, would soon holdarguments via video conference? The Supreme Court itself has famously never allowed live broadcasts of arguments (a subject of considerable debate). But with arguments moving to the phone, the Court will now allow the public to listen in real time.

As one would expect, the rollout of these sudden changes has not been entirely smooth. In many courts, things have gone well, with only “momentary audio hiccups and minor glitches.” But in March, a D.C. Circuit judge was dropped from an argument and missed several minutes. Last week, a Florida judge complained of lawyers making court appearances shirtless or in pajamas. One Australian barrister described remote court hearings as follows: “The judge couldn’t see anyone; lines dropped out regularly; witnesses didn’t know where to go; … subpoenaed material could not be accessed by anyone; feedback made it impossible to proceed.”

Some of these problems are silly—in the grand scheme of things, we have bigger worries than appropriate Zoom dress codes. But others have the potential to fundamentally impact proceedings—possibly affecting parties’ due process rights. This blog post briefly explores some of the issues that COVID-19 has brought to the forefront, with a particular focus on administrative processes. (For a comprehensive listing of the ways in which different federal administrative agencies are holding their hearings, see this great blog post from the Yale Journal on Regulation).

Remote Hearings—An Overview

Remote proceedings are not exactly new. Even before the pandemic took hold, CourtCall—a company that facilitates remote appearances—had hosted six million such appearances since 1996. Many courts have long allowed certain remote appearances (sometimes requiring the consent of the parties, sometimes not). According to the Administrative Conference of the United States (ACUS), some agencies already conducted thousands of video hearings a year even before the pandemic. Still, until recently, such appearances were the exception, not the norm. And the use of remote technologies has generated controversy, even before its sudden widespread adoption.

Problems with Remote Hearings

Some people have expressed skepticism about the use of remote hearings, emerging in part from evidentiary concerns. As the BBC recently reported, video calls can make it “harder to process non-verbal cues like facial expressions, the tone and pitch of the voice, and body language.” That BBC story also referred to a 2014 study which found that even a 1.2 second transmission delay on a videoconferencing system “made people perceive the responder as less friendly or focused.” These effects can matter, considering the importance of perception and non-verbal cues in courtrooms. Additionally, one 1996 study in the University of Michigan Journal of Law Reform (before the advent of video technology) found that “parties to telephone hearings are less likely to exercise their rights to submit evidence through witnesses and documents than are parties to in-person hearings.”

Remote hearings can be particularly problematic in immigration hearings, which often involve language interpretation and the recounting of traumatic events. In early March—even before COVID-19 closures began—immigration courts in Texas began a pilot program to hold more hearings for unaccompanied children over videoconference, attempting to reduce a backlog of cases. One immigration attorney, forced by the virus to work with clients remotely, described the difficulty of doing so: “[w]e’re asking kids to open up and talk about the most personal and traumatic experiences of their lives and not even be making direct eye contact with them.” Remote hearings can affect the outcome of cases; a 2017 Government Accountability Office (GAO) study found that video hearings caused difficulties with language interpretation and affected immigration judges’ assessments of respondents’ credibility. A study in the Northwestern University Law Review found that respondents in video hearings were more likely to be deported. The American Immigration Lawyers Association opposes the use of video hearings for immigration for these reasons.

Problems with remote hearings also arise in settings that require public participation—like rulemakings and permit applications. In Minnesota, for instance, the state Pollution Control Agency (MPCA) recently delayed publication of a proposed Clean Cars rule, recognizing the importance of in-person comment and“ensuring that the public has opportunity to participate in the rule-making process.” At the same time, the MPCA moved forward with public meetings about Clean Water Act permits for the controversial Line 3 pipeline project, holding the meetings over the phone. More than 1,600 people called into the meetings, but only 400 were able to speak due to high volume. Some local organizers collected video comments, attempting to put a face to the public input, and called for the agency to hold in-person meetings once the pandemic has passed.

Finally, depending on the circumstances, remote hearings can also run afoul of specific public process requirements and open meeting laws. Lawyers in New Jersey, for instance, have highlighted a number of legal concerns arising from virtual land use board hearings. Laws about when and how meetings may be held electronically vary state to state; and amidst the pandemic, governors and legislatures have taken varying steps to clarify that authority. In Minnesota, the state legislature amended the open meeting law to account for the pandemic, expanding the circumstances under which meetings may be held remotely.

Benefits of Remote Hearings

Despite all of these problems, some lawyers have actually long advocated for an increase in virtual hearings. One common argument is that online hearings can help improve access to justice, addressing backlogs of millions of cases in some courts and agencies. Some argue that our current legal process is built more around “serving a place than serving justice.” One paper surveyed a number of other reasons why remote hearings may help in some contexts. Remote hearings can help in international cases or cases where the parties and witnesses live far apart; they can help with safety and security for parties, witnesses, and judges; they can help alleviate scheduling issues; and they can help in cases where traveling to court presents a significant burden for an individual, perhaps for economic reasons or due to a disability. (For a thorough summary of some of the ways in which technology—not just remote hearings—can help improve access to justice, see this 2012 article in the Harvard Journal of Law & Technology).

Further, while some arguments against remote hearings focus on the importance of non-verbal cues in proceedings, others have disputed that importance. Some research has pointed out that there can be as much pseudoscience as science in attempts to interpret witness behavior. Some have questioned whether witness demeanor is even useful at all for assessing credibility. And while non-verbal cues can and do shape judge and jury reactions, this may not always be a good thing—reactions to certain behaviors can be shaped by implicit bias, furthering racial and other disparities. More research is likely needed on whether these disparities are exacerbated or lessened by different types of virtual hearings.

Finally, remote court hearings can create significant cost savings. For example, according to ACUS, the Social Security Administration’s Office of Disability Adjudication and Review saved $59 million in 2010 from using video hearings. These savings matter to people who have to navigate the legal system. A 2014 NPR investigation found, for example, that “the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders.” Many defendants are required to pay hundreds or thousands of dollars in court costs, even for constitutionally required services. Reducing court costs could help lower fees, reducing the burden on low-income parties. Additionally, law firms are saving money from virtual hearings too, potentially reducing the cost of legal services and improving access to representation down the road.

The potential for improved access and reduced costs from virtual hearings is promising, but comes with an important caution. As British lawyer Richard Atkinson wrote for The Guardian in 2012: “A more efficient justice system is possible, but the government needs to recognise that speed does not always equate to efficiency and efficiency should never be promoted over justice.”

Looking Forward

As the effects of social distancing wear on, many of us look forward to the day when we can finally go “back to normal.” Without question, it will be a happy day when we can be with our loved ones, our friends, and our coworkers again. Lawyers will also be happy to return to the office, meet with clients in person, and advocate in real courtrooms.

At the same time, questions about remote hearings will not go away. Looking backward, some litigators will likely contest whether certain remote hearings conducted during COVID-19 were permissible. Looking forward, others will use our social distancing experience to argue that we should expand or reduce the use of remote hearings in the future.

There are no universal answers to these questions—the appropriateness of remote hearings depends on the applicable laws and the context of the case. In some cases, remote hearings can adversely affect parties’ rights; in others, they can actually improve access to justice. As one English judge wrote recently, “[i]t remains the obligation of all involved and at all stages of the hearing, to continue to evaluate whether fairness to all the parties is being achieved. Fairness cannot be sacrificed to convenience.” Our task, in these unprecedented times, is to move forward as best and as fairly we can—and to learn from these new experiences to better inform our approach to technology in the courtroom in the future.

#ChonkyBois: When It Comes to Running Shoes, How Thicc is too Thicc?

March 19, 2020
New Technology, Sports Law

Molly Woodford, MJLST Staffer

Early last November, I wrote a blog post about the developing controversy surrounding the Nike Vaporfly NEXT%. At that time, the IAAF (track and field’s world governing body, which has now rebranded itself as “World Athletics”) had just announced that it was assembling a working group to examine the Vaporfly controversy and “find the right balance in the technical rules between encouraging the development and use of new technologies in athletics and the preservation of the fundamental characteristics of the sport: accessibility, universality and fairness.” The IAAF also announced that it expected the working group “to report back by the end of the year.”

True to its word, on January 31, 2020, the IAAF promulgated new rules governing footwear. Among other things, the new rules stated that all racing shoes could have a sole no thicker than 40mm and contain no more than one carbon plate. In addition, in order to prevent athletes from racing in prototypes that might otherwise comply with the rules, “any shoe that is first introduced after [April 30,] 2020 may not be used in competition unless and until it has been available for purchase by any athlete on the open retail market (i.e. either in store or online) for at least four months prior to that competition.” Since the first day of Olympic track and field is, for now, scheduled to begin on July 31, 2020, and the Olympics marathons are scheduled to take place on August 8 and 9, any racing shoe used in the Olympics must, therefore, be released for sale to the general public by the end of April.

The IAAF president, Sebastian Coe, stated that:

As we enter the Olympic year, we don’t believe we can rule out shoes that have been generally available for a considerable period of time, but we can draw a line by prohibiting the use of shoes that go further than what is currently on the market while we investigate further.

True to Coe’s words, under the new rules, the Nike Vaporfly NEXT% is legal, as is its successor, the AlphaFly Next%, which was announced by Nike on February 5, 2020, less than a week after the new IAAF rules. The “stack height,” or “the amount of material between your foot and the ground” of the AlphaFly is 39.5mm, versus 37mm in the Vaporfly Next%. By way of comparison, the stack height of the Nike Zoon Streak 7, a conventional marathon racing flat, is 26mm. Thus, the Next% line features a sole that is approximately 50% thicker than its traditional counterparts. “Running twitter” has taken to referring to the Alphafly as #ChonkyBois.

Nike made a limited number of Alphaflys available to Nike Plus members on February 29, 2020, to coincide with the United States Olympic Marathon Trials. In a genius marketing coup, Nike made the Alphafly available, for free, to all athletes competing in the Olympic Marathon Trials. According to Runner’s World, about 25% of competitors opted to wear the Alphafly, even though those who are not sponsored by Nike had just received the shoes days before the race (you generally do not want to try new things during a marathon, like shoes or nutrition). Runners were willing to take this risk because, while the Vaporfly boosts performances by ~4%, the Alphafly may help twice as much. The previously-unheralded Jacob Riley intentionally chose to forgo pursuing sponsorship until after the Olympic Trials so that he could race in the Alphafly. His gamble paid off, with a personal best and an Olympic berth.

Nike’s competitors are working to match the effectiveness of the Alphafly, but they’re not there yet. With its legality no longer in doubt, the Alphafly is here to stay, for better or for worse.

Timing Trouble: to what extent should we assume people will break the law?

February 15, 2020
Artificial Intelligence, Human Behavior, New Technology, Public Safety

Jack Brooksbank, MJLST Staffer

City planners and civil engineers across the country face a little-known, yet extremely important, question when designing road systems: how long should the green lights last? Anyone who has ever had a regular commute probably wishes the answer was simply “longer,” but this seemingly minor detail can get quite complex. Traffic light timing decisions are made by both government officials and specialist consulting firms, based on extensive studies, and supported by academic papers. The practice of traffic light timing is so established that it has its own lingo.

Perhaps the most important part of traffic light timing is coordination. Engineers try to set the cycles of lights on a given route in concert, so that a car passing through one green light finds the next light turning green in time for it to continue. “The intent of coordinating traffic signals is to provide smooth flow of traffic along streets and highways in order to reduce travel times, stops and delay.” When done well, it leads to a phenomenon known in the industry as a “green wave,” where a car hits every green light in a row and never needs to come to a stop.

It’s not just a minor detail, either. Coordination can have some serious benefits for a city. One town revamping its timing scheme estimated it would reduce travel times by as much as 10%. And although making the morning commute go more smoothly is a worthy goal in itself, proper light timing can create other benefits too. Efficient traffic light timing can even help the environment: by reducing the number of stops, and the total time spent driving, coordinated traffic signals reduce the amount of fuel burned, and greenhouse gasses produced, by commuters.

However, timing traffic lights relies in large part on one central assumption: that a car leaving one green light takes a certain amount of time to get to the next one. This raises a potential problem: drivers don’t follow the speed limit. Indeed, one study found that nearly 70% of all drivers regularly speed! When timing traffic lights, then, designers must make a choice: do they time the lights based on the legal speed limit, or based on the speed drivers actually go?

If timing is based on the speed limit, many cars will still arrive at the next light before it has turned green. The coordination of signals won’t have mattered, and the cars will still have to come to a stop. By basing the timing on the wrong speed, the designers have negated the benefit of their careful work, and might as well have saved the time and money needed for figuring out how to coordinate the signals in the first place. But, if instead timing is based on the speed drivers really travel, designers are essentially rewarding illegal behavior—and punishing those drivers who do actually follow the law with extra stops and delays!

Most major cities now rely on actuated controllers, or devices that detect when cars are approaching in order to trigger light changes without human input. Some cities are even experimenting with AI-based systems that take the design out of human hands completely. Advances in technology have thus heavily favored the “actual speed” approach, but is this because a decision was made to accommodate speeding drivers? Or have cities, in their enthusiasm to reduce congestion, simply adopted the latest in technology without considering the policy choice that it entails?

Also, if traffic lights should be timed for the actual speed cars travel, it may raise further implications for other areas of law that rely on questionable assumptions of human behavior. Perhaps most notable is the law of contracts, which generally relies heavily on the assumption that people read contracts before signing them. But as electronic devices, apps, and online content proliferate, this assumption gets farther from the truth. And people can hardly be blamed for agreeing without reading: one investigation in Norway found that people have an average of 33 apps on their smartphones, and that reading the terms and conditions of that many apps would take an average of 31 hours. Another investigation found that simply reading all the website privacy policies an average internet user encounters in a year would require 76 eight-hour days of reading! If we should time traffic lights to account for people being too impatient to follow the legal speed limit, surely we should update the laws of contract to account for such a crushing reading load. Perhaps it is time to reform many areas of law, so that they are no longer grounded on unrealistic expectations of human behavior.

E-Bikes: Protections, Safety and Liability on the Road

February 7, 2020
New Technology, Public Safety, Regulatory

Alex Wolf, MJLST Staffer

E-bikes, or electronic bikes, are kind of a hybrid between an electric scooter and a regular bicycle. In appearance, they’re no different than your normal two-wheeled bike, but e-bikes have a motor that lets the rider reach brisk speeds without much pedaling effort. There are two classes of motors, hub motors and mid-drive motors. Hub motors are installed in the hub gear and mid-drive motors are installed between the pedals at the bottom bracket of the bike. The usual advice for e-bike newbies is to start with a hub motor; it is simpler to install and it has fewer working parts (creating less risk of a slip/accident and lasting longer). However, the mid-drives have now outpaced the hubs in popularity; for biking enthusiasts, the gear shifts feel more natural and the extra power is great for terrain or mountain biking.

E-bikes are on the streets, so states and localities need to decide how to regulate them. Wisconsin Governor Tony Evers recently signed a law that incorporates e-bikes into an existing law governing safety regulations for bicycles. The law creates a three-tiered “e-bike class” system, based on the maximum speed the e-bike can reach with its motor. Although e-bike riders don’t need any license or permit to operate, riders must be 16 years or older to ride e-bikes that can reach 28 mph. These regulations are similar to those previously enacted in Illinois and Michigan.

Like electronic scooters, e-bikes pose more safety issues than non-mechanized transportation. Reliable data is very hard to find (as e-bikes are new on the scene), but news reports indicate that older bikers are getting injured at higher rates than others. New York Governor Andrew Cuomo vetoed a bill that would’ve reauthorized electronic scooters and e-bikes on paths and bike lanes. He said that he believed the bill lacked important safety requirements, namely helmet use. However, Governor Phil Murphy of neighboring New Jersey eagerly signed a bill permitting scooters and e-bikes, hoping that “By bringing our motor vehicle laws into the 21st century, we will enable the rollout of e-bikes in Jersey City’s bike share program and expand the transportation options available to New Jerseyans.”

What can we expect for e-bikes in the near future? The annual e-bike market has surpassed $1.5 billion, with recognizable brands like BMW and Harley-Davidson jumping headfirst into this exciting commercial domain. We might soon see the statistic of the number of Americans who bike to work, currently about 1%, tick upwards. Minneapolis’ Nice Ride is leading the way for e-bikes in Minnesota, working with Lyft to bring 2,000 e-bikes to the city sometime in 2020. Minnesota law does not require either a license or a special motorized bicycle permit, but it does have other safety precautions like headlight use and an adult riding along if a minor is operating. So, if you’ve got the means, let it ride!

Elections? There’s an App for That.

February 5, 2020
Elections, New Technology

Jacob Hauschild, MJLST Staffer

Clay Aiken won. We true believers don’t care what FOX had to say about it. When the phone systems were allegedly logjammed on that 2003 day, millions of American Idolaters had their faith in the democratic vote shattered. As one author wrote, “Technology is thwarting democracy. . .”

Yet, even as our democracy has been so thwarted by encroaching technology, one Washington district believes there Ain’t No Need to Worry. Instead of protecting voters from technology’s perils, the King Conservation District of Washington is embracing technology in the democratic process, allowing roughly 1.2 million Seattle area voters to vote online, via a smartphone, tablet, or computer, in an election for a board of supervisor position. Last year, the King Conservation District had only a 0.2% participation rate in its Board of Supervisors’ election. By allowing voters to vote this year from their couches, administrators hope more residents will participate, strengthening the district’s democratic capacity.

Of course, such an expansion to voter accessibility is no laughing matter. On one hand, voter turnout in the United States is concerningly low. Of no help are the 24 states who have introduced heightened voting restrictions over the last decade. On the other hand, these kinds of restrictions are, in theory, meant to make our elections more secure, as recent elections have quite notoriously resulted in claims of voter fraud and international interference. And experts have major concerns about the effects of online voting, which include challenges in voter authentication, risks to ballots in transit (i.e. ballots that are manipulated while transferred between the voter and the election office), and the threat of malware infiltrating electoral systems.

Online voting advocates are responsive to these issues. Many believe that blockchain, the technology behind bitcoin, may be the magic key to these security concerns. Others are far more cautious. Plus, in addition to security risks, there is the ever-present possibility that the voting technology fails to function as expected. For its part, the King Conservation District is utilizing a mobile voting platform through Democracy Live, which has FedRAMP certification, providing a government standardized approach to security assessment, authorization, and monitoring of cloud services.

For now, other voting districts aren’t exactly lining up to make similar changes to voting accessibility. Washington Secretary of State Kim Wyman recently indicated after consultation with cyber experts from the FBI and Department of Homeland Security that “electronic transmission [is] far too risky for voting and could leave voter information and election infrastructure impaired.” Even Julie King, the Elections Director for King County itself, announced that mobile voting is “not technology [she’ll] be rolling out for King County in upcoming elections.”

Will this technology grow more widespread in the future? And if so, how does that affect the legitimacy of our democracy? For a glimpse of that future, we need only wait until February 16. Or, if you don’t intend to tune into the American Idol premiere, you can opt instead to observe mobile voting’s impact as early as February 11, when the King Conservation District polls close. That election’s success—or failure—could fundamentally change how Americans vote in coming elections.

“Open up it’s the police! . . . And Jeff Bezos?”

November 24, 2019
Criminal Law, New Technology, Privacy

Noah Cozad, MJLST Staffer

Amazon’s Ring company posted a series of Instagram posts around Halloween, including a video of children trick or treating, and statistics about how many doorbells were rang on the night. What was probably conceived as a cute marketing idea, quickly received backlash. It turns out people were not enamored by the thought of Ring watching their children trick or treat. This is not the first time Ring’s ads have drawn criticism. In June of this year, social media users noticed that Ring was using images and footage from their cameras in advertisements. The posts included pictures of suspects, as well as details of their alleged crimes. Ring called these “Community Alerts.” Customers, it seems, have agreed to exactly this use of data. In Ring’s terms of service agreement, customers grant Ring the ability to “use, distribute, store . . . and create derivative works from such Content that you share through our Service.”

The backlash to Ring’s ads gets to a deeper concern about the Amazon company and its technology: the creation of a massive, privately owned surveillance network. Consumers have good reason to be wary of this. It’s not fully understood what exactly Ring does with the images and videos this network creates. Earlier this year, it was reported that Ring allegedly gave their Ukrainian R&D team unlimited access to every video and image created by any Ring camera. And Ring allegedly allowed engineers and executives unlimited access to some customers cameras as well, including Ring’s security cameras made for indoor use. Ring has denied these allegations. There are not many specifics, but the company is said to have “minimum security standards” in general, and appears not to encrypt the storage of customer data. Though data is now encrypted “in transit.”

The legal and civil rights concerns from this technology all seem to come to a head with Ring’s partnerships with local police departments. Six hundred plus police departments, including the Plymouth and Rochester departments, have partnered with Ring. Police departments encourage members of their community to buy Ring, and Ring gives police forces potential access to camera footage. The footage is accessed through a request to the customer, which can be denied, otherwise, police usually require a warrant to force Ring to hand over the footage. California departments though allege they have been able to sidestep the customer, and simply threaten Ring with a subpoena for the footage. If true, there is effectively little stopping Ring from sharing footage with police. Ring has claimed to be working hard to protect consumers privacy but has not answered exactly how often they give police footage without the approval of the customer or a warrant.

How legislatures and regulators handle this massive surveillance network and its partnerships with law enforcement is up in the air at this point. Despite continual backlash to their services, and 30 civil rights groups speaking out against Ring’s corporate practices, there has been little movement on the Federal level it seems, besides a letter from Senator Markey (D-Mass) to Amazon demanding more information on their services. Recently, Amazon replied to Senator Markey, which shed some light on how police can receive and use the data. Amazon stated that police can request 12 hours of footage from any device within a 0.5 mile radius of the crime. Amazon further stated that it does not require police to meet any evidentiary standard before asking for footage.

Despite the relative lack of governmental action currently, it is almost assured some level of government will act on these issues in the near future. For now, though, Ring continues to expand its network, and along with it, concerns over due process, privacy, and law enforcement overreach.

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