Barely Legally

confessions of a moot court bailiff

Open Data and Elk Theory

In my day job, I’ve researched and written a lot about data sharing by governments, or “open data”. The “how” is pretty well-settled. If you’re an agency and you want to share data with the public, you either get yourself a nice open data portal, or maybe you just have a page on your web site with a bunch of CSV files. Doesn’t really matter, actually.

As for the “why,” well, the important part of open data (and management generally) is that you, as an agency or department or bureau or city or whatever, have access to this data in a form that is useful to you. Yes, releasing it so nerds can make apps is nice.

But honestly, I care more about the governments’ nerds having meaningful access to this information than nerds hunting for the next big startup. Open data is information that you’ve busted out of some vendor-locked-in silo is information that everyone at your agency can use.

If only one person in your office can actually access that information, your institutional wisdom suffers. Your agency’s ability to improve its performance suffers, as does your ability to manage (read: regulate) what you’re supposed to be managing; that can mean potholes or crime or bank loans or anything.

What? Why? Elk?

So the “how” is reasonably straightforward. But there’s a bit of a struggle when government agencies are deciding the “what” in open data. It’s complicated and inextricably linked with the “why” from above.

What do we publish on our open data portal? Why do we publish it? It’s the most important data, right? But what’s important? How do we know? What data do we even have?

And that last one is the biggest question. If you don’t have a clear view of your institutional knowledge when you’re deciding what to publish, how are you even doing your day job? Are you hoping that the right people have access to the right information? Are you assuming that spreadsheets migrate from desktop to desktop as they’re needed? Are they like elk?

The idea here is that open data is perhaps most useful as an exercise in institutional epistemological self-reflection. What do you know, why do you know it, how do you know it, where is it written, why is it known? What is unknown? Why don’t you know it? You cannot manage what you do not measure. If you can’t produce a list of what you measure, or what you know (i.e. what data your agency collects), you’re not managing so much as guessing.

A Vivid Example

A recent article in The Atlantic delves into this kind of scenario. It starts out kind of puffy, as a parent attempts to use Big Data Analytics to help her child perform on standardized tests. It sounded pretty comical.

In order to crunch the numbers to game the tests, author Meredith Broussard needs to know what the names of the curricula to stuff into her spreadsheets.

That’s where things go pretty spectacularly wrong:

The first challenge came when I asked the School District of Philadelphia for a list of which curricula were being used at which schools. If you want to know which books should be in a school, you need to know the name of the curriculum the school uses. (Using a branded curriculum like Everyday Math allows a school to place its orders more efficiently and negotiate a bulk discount.)

“We don’t have that list,” an administrator at the Philadelphia Office of Curriculum and Development told me. “It doesn’t exist.”

“How do you know what curriculum each school is using?” I asked.

“We don’t.”

There was silence on the phone for a moment.

“How do you know if the schools have all the books they need?”

“We don’t.”

Okay. Pause. Time out. Wow. The article covers how standardized tests are basically asking students to regurgitate answers from specific textbooks. The same companies that make the tests make the books.

And Philadelphia (and virtually every other large urban school district) doesn’t know what books what schools are using. They don’t know what each school is studying.

So you can figure out the implications of this pretty quickly. Test scores are inextricably linked to access to specific textbooks. The school doesn’t measure (and therefore cannot manage) what books go where.

Even worse implications

It actually gets a lot worse than that in the article. It’s simply horrifying. However, in the absence of anything resembling effective management, teachers do what teachers do best:

Urban teachers have a kind of underground economy, [math teacher] Cohen explained. Some teachers hustle and negotiate to get books and paper and desks for their students. They spend their spare time running campaigns on fundraising sites like Donors Choose, and they keep an eye out for any materials they can nab from other schools.

Philadelphia teachers spend an average of $300 to $1,000 of their own money each year to supplement their $100 annual budget for classroom supplies, according to a Philadelphia Federation of Teachers survey.

For the last decade, federal funding for school districts has been based on standardized test scores. So here’s how it works. If your kids don’t get the books, they don’t pass the tests. If they don’t pass the tests, your district doesn’t get the money to buy the books so your kids can pass next year’s tests.

Okay, This Looks Bad

What happens when the school district runs out of money? If your soul hasn’t been ground into dust and ashes by reading the article already, I guess one more look can’t hurt.

Take a deep breath. We’re going back in.

The Elements of Literature textbook costs $114.75. However, in 2012–2013, Tilden (like every other middle school in Philadelphia) was only allocated $30.30 per student to buy books—and that amount, which was barely a quarter the price of one textbook, was supposed to cover every subject, not just one.

My own calculations show that the average Philadelphia school had only 27 percent of the books required to teach its curriculum in 2012-2013, and it would have cost $68 million to pay for all the books schools need.

Oh. Well, the Philadelphia school system actually has a $2.4 billion budget. $68 million for books is nothing. It’s less than 3% of your total budget, and this is obviously an essential part of a budget. I mean, I’m just some idiot with a legal blog. Surely they can afford textbo-

Philadelphia schools were allotted $0 per student for textbooks. The 2015 budget likewise features no funding for books.

OH COME ON.

Are you people even trying? Your entire school district is run on some guy’s overworked copy of Excel, and your funding depends on kids guessing the right answers from textbooks their teachers have never even seen. Frankly, it’s surprising that only one school has taken matters into its own hands and started cheating like crazy.

And apparently, this isn’t because Philadelphia is some anomalously abysmal school system. The article says this is just how most urban school districts go. They’re gigantic and they’re not getting the funds they need to implement the kind of systems to manage the textbooks they need to get the funds they need to etc etc. It’s beyond sad.

The Moral

What have we learned? If you’re not measuring it, you can’t manage it. If you’re collecting data but it’s not in useful formats, you’re not measuring it. If you’re sharing data as part of an open data initiative, you are by definition keeping data in a useful format.

Oh, and our schools are screwed and this is is un-American and it’s just bad policy because kids eventually become adults and if you completely neglected their development you’re really just begging them to not become productive members of society and that seems horrifying how is this not a giant problem for everyone.

But also spreadsheets.

He’s So Asking for It

Bloomberg News ran a hand-wringing article earlier this week, titled Hook-Up Culture at Harvard, Stanford Wanes Amid Assault Alarm. Some guys are worried about the possibility that the girl they’re with might be too drunk to provide meaningful consent, so the “hook-up culture” isn’t as full of sexytimes as reporters expect from millenials.

There’s already a barrage of articles shaming millenials for having too much sex; perhaps this is the swinging of the pendulum back toward normalcy? I’m not sure which kind of scarlet letter I prefer. both a little insulting in their own way.

This one does offer a new kind of silliness: mansplaining!

Some men feel that too much responsibility for preventing sexual assault has been put on their shoulders, said Chris Herries, a senior at Stanford University. While everyone condemns sexual assault, there seems to be an assumption among female students that they shouldn’t have to protect themselves by avoiding drunkenness and other risky behaviors, he said.

“Do I deserve to have my bike stolen if I leave it unlocked on the quad?” Herries, 22, said. “We have to encourage people not to take on undue risk.”

How unreasonable that people who overwhelmingly commit sexual assaults have the sole responsibility to prevent sexual assault. It’s such a burden to constantly not take things that you want when someone doesn’t literally chain it to a bike rack. That metaphor might have fallen apart at the end there, because, as Jessica Valenti put it:

Like, these dudes know we can’t bike-lock our vaginas, right?

Hey, Chris Herries of Stanford University was definitely not suggesting that you bike-lock your vagina. He was simply suggesting that you treat every guy like he’s going to assault you, because it’s unfair to ask men to not commit crimes.

This wasn’t just some inanity that spouted off the top of Chris Herries’s head. In 2013, he wrote a prolonged op-ed on how you shouldn’t blame victims, but you should also totally blame victims of crime. He also added “casual racism” to his repertoire:

if I’m relieved of my Rolex on the streets of Spanish Harlem at midnight, who is at fault? Clearly the mugger, but it would be logical to ask, “Why would you walk around Spanish Harlem with a Rolex at midnight? Don’t you think that’s a little risky?” I would certainly be admonished not to do it again.

Yes. Yes, this is exactly what being a woman is probably like. Either you take your vagina off and don’t flaunt it when you’re around “those people”, or you accept the fact that you were just asking for it.

Look, we all say stupid things when we’re young and stupid. This guy isn’t a failed human being because he’s 22 and has internalized the sexism of our society. I’m particularly frustrated because this guy is only 22 and he’s already so certain of this vagina bike locks and victim-blaming nonsense.

Dollars on the Penny

Many years ago, a dentist sued his patient, an aspiring … iPhone gaming mogul, for failing to pay her bill for services. He won a default judgment when his patient apparently ignored the lawsuit. And then she got famous. Like, really famous.

She is now Kim Kardashian, perhaps best-known for her app, and she made legal news for what might be a world record. The dentist just sold his $1,600 judgment for a whopping $5,000. That’s not a typo.

Sure, most of the time, when folks buy debt, they’re not certain to collect, so there’s a little bit of a discount for the new debt holder. The rich, however, are not like you and I:

JudgmentMarketplace.com, a three-year-old site that gives creditors a forum for hawking uncollected debts, said the transaction marked the first time in the company’s history that the selling price for a listed judgment exceeded the total value of the principal and interest.

Firstly, there’s a web site for this? It’s like eBay, but instead of selling antique buttons, you’re selling legal judgments? Secondly, guy who runs this site, what’s your expert opinion on the economic ramifications of this … silliness?

He said the Kardashian judgment may have commanded a premium because of its novelty value. In other words, for $5,000, you can tell people at a cocktail party that a Kardashian is indebted to you.

Ain’t no party like a Wall Street Journal party, because at a Wall Street Journal party there is discussion about the most famous person who owes you money. #inbedby9pm

Babytown Frolics

From my favorite newsletter, NextDraft:

Attention ridiculous parents: The creator of the Your Baby Can Read program has “reached a deal to settle charges that he and his company made baseless pronouncements about the effectiveness of the program and that they misrepresented scientific studies to prove these bogus statements.”

The program has pulled in more than $185 million over the years. Dr. Robert Titzer is required to pay $300,000 in penalties. Your baby can’t read, but they can certainly count well enough to figure out who came out ahead in that deal.

In a complete and utter coincidence, I’m pleased to announce the launch of my new product, Your Baby Can Appellate Brief. Available for the low low price of “The Balance of My Student Loans.” Call today!

Endocrine Disruptors

From Scientific American comes this feel-bad story. Remember how your plastic water bottle had a “BPA-free” sticker on it? That’s good. BPA is harmful and is thought to cause cancer. Surprise twist ending, the thing they replaced it with is just as bad!

“[Manufacturers] put ‘BPA-free’ on the label, which is true. The thing they neglected to tell you is that what they’ve substituted for BPA has not been tested for the same kinds of problems that BPA has been shown to cause. That’s a little bit sneaky.”

How could this happen?

Currently, no federal agency tests the toxicity of new materials before they are allowed on the market. “We’re paying a premium for a ‘safer’ product that isn’t even safer,” [University of Calgary scientist Deborah] Kurrasch says. There are many types of bisphenols out there, so part of the public’s responsibility “is making sure [manufacturers] don’t just go from BPA to BPS to BPF or whatever the next one is.”

Facebook’s Fotoshop Fracas

A woman is suing because someone photoshopped her face onto nude photos of someone else. As she should. From Ars Technica:

Photographs “that depict the true face of plaintiff” were altered with Photoshop and “attached to false, phony, naked body shots, and at least one pose where there is plaintiff in a graphic pornographic-like photo,” states the complaint, which was filed on July 25 in Harris County.

“These phony photos falsely and maliciously depicted plaintiff in a clearly derogatory and false light … as some overly bold and overly aggressive sexual person, which plaintiff in fact and truth is not,“ writes Ali’s lawyer.

The complaint has kind of a clumsy sound to it, but like all pleadings, it reads a little funny because it has to cover lots of legal bases. If you’re going to seek damages for harm to your reputation, you don’t want to lose when the defendant says “you forgot to argue that your client isn’t actually aggressively sexual!” That’d be embarrassing. And weird.