November/December 2018

This Newsletter will serve as my November and December issue, so I want to wish all a joyous and fun holiday season, and a healthy and profitable new year!  For those of you in the US, I hope you had a relaxing Thanksgiving and didn’t overdo the over-eating.

As regular readers of this Newsletter know, in each issue I present a summary of recent research reports, legal decisions and news articles that I hope my readers will find of interest and worthy of their time to peruse and perhaps download and read in their entirety.  I focus on two areas:  corporate governance and alternative dispute resolution (“ADR”).  Additionally, I almost include two or three articles concerning matters of general interest in my “Interesting Cases/Articles of the Month” section.

Beginning with Governance, this month I present 3 articles.  The first sets forth Glass Lewis’ and ISS’ updates to their proxy voting guidelines.  Also presented is an article and several references regarding the Department of Justice’s updated policy regarding individual accountability for corporate wrongdoing and cooperation credit. Finally, presented is an article published by the National Association of Corporate Directors regarding the qualities of a “value-added” director.

For my ADR readers, I present 2 cases addressing the doctrine of functus officio in arbitrations – when does a tribunal lose its jurisdiction having rendered a final award?  Also presented is a thought piece addressing the question:  do arbitrators have a duty to get it right, or should they simply rule based upon the submissions of the parties.   

Lastly, I present articles of general interest in my “Interesting Cases/Articles of the Month” section.  This month, I present 3 pieces.  First, a discussion by Columbia University professors regarding the state of voting and elections in the US.  Also presented is a Timemagazine article discussing why we believe fake news.  Finally, presented is an article about yet another claimed Atlantis find, the Atlantis myth, and why many are skeptical of the most recent claimed find.

This Month’s Articles

Corporate Governance

  • Glass Lewis and ISS 2019 Voting Guidelines: Glass Lewis and ISS recently released their 2019 proxy voting guidelines. This article summarizes the updates, which focused on board gender diversity, conflicting management and shareholder proposals, and social and environmental matters.
  • Revisions to Yates Memo Policy for Corporate Cooperation: Deputy Attorney General Rod Rosenstein recently announced revisions to the 2015 Yates Memo, which set forth the DOJ’s policy on individual accountability for corporate wrongdoing. The revisions give the DOJ increased discretion, with companies now only required to report facts related to individuals with substantial involvement or responsibility (instead of all individuals) in order to qualify for cooperation credit. Links to the original Yates Memo are provided as well to Rosenstein’s recent speech.
  • Grow or Die: Imperatives of a Value-added Director: With boards increasingly focused on significant industry changes and business model disruption, it is essential that directors stay up to date on technology and business trends.  This article provides 7 suggestions for ways directors can stay on top of their game and add value in today’s changing boardroom.

Alternative Dispute Resolution

  • General Re Life Insurance Co. v. Lincoln National Life Insurance Co. – Functus Officio exception: This recent Second Circuit decision held that when a district court is asked to confirm an ambiguous arbitral award, it should remand to the arbitrators for clarification and that such clarification is an exception to the doctrine of functus officio. 
  • American Intl. Specialty Lines Ins. Co. v Allied Capital Corp.: In another recent decision involving the doctrine of functus officio, a New York appellate court held that an arbitration panel’s reconsideration of a partial final award was improper because there was no evidence that the parties or panel thought the award was anything less than a final determination of the issue decided. Therefore, under the doctrine of functus officio, it was improper and beyond the panel’s authority to reconsider the award even if separate awards were yet to be determined.
  • How Far Should an Arbitrator Go to Get it Right?: If parties’ experts present wildly divergent opinions of appropriate damages, both of which the tribunal believes to be incorrect, should the tribunal select between the incorrect awards or take additional steps to ensure they “get it right?” This article analyzes arbitrators’ power and possible duty to take additional measures to ensure they “get it right,” addressing possible concerns related to due process and unduly benefitting one party while suggesting best practices.

Interesting Articles/Cases of the Month

  • Ballot Breakdown: With the increasing pressure on the American voting system, Columbia University professors provide a status report on the system. They discuss the declining faith in the integrity of the system, gerrymandering, recent court decisions, voter fraud, voter rolls and purges, cybersecurity, fake news, voter engagement, and the upcoming 2020 census.
  • How Your Brain Tricks You Into Believing Fake News: With the proliferation of online bots and trolls, it is becoming increasingly difficult to decide whether to believe something you see on the Internet. Human’s innate desire for an easy answer and tendency to make snap judgments also are part of the problem. Take a read to learn more about these human tendencies and hear tips from fact-checkers about how best to filter the truth from “digital pollution.”
  • Atlantis Found (Again)! And Exasperated Scientists (Again) Raise Their Eyebrows: While the U.K. group Merlin Burrows claims to have found ruins of Atlantis in in Spain’s Doñana National Park using data from commercial satellites, archaeologists are largely skeptical of their claims, with many believing that Atlantis was just a myth and never actually existed.

I hope you find one or more of these articles of interest and worthy of your inbox’s space.

Warm regards,

Jim Reiman


Articles / Corporate Governance

Glass Lewis and ISS 2019 Voting Guidelines
Glass Lewis and Institutional Shareholder Services (ISS), two of the leading providers of corporate governance and proxy advisory services, recently published their 2019 proxy voting guidelines. The updates focused on board gender diversity, conflicting management and shareholder proposals, and social and environmental matters.

Glass Lewis Voting Guidelines:
The Glass Lewis guidelines will be effective for meetings held after January 1, 2019.

With respect to diversity, the guidelines recommend voting against the nominating committee chair of a board with no female members, with certain exceptions based on company size, industry, or when boards provide sufficient rationale.

In cases where management and shareholder proposals request different thresholds for the right to call a special meeting, the updates generally recommend using the lower threshold. Additionally, Glass Lewis notes situations where the SEC allowed companies to exclude shareholder proposals, which may lead to recommendations against members of the governance committee.

The guidelines also formalize the approach for reviewing how boards are overseeing environmental and social issues. For large cap companies with identified material oversight issues, Glass Lewis will review the company’s policies and determine who is responsible for oversight of these issues. In cases where it is questionable if companies properly managed or mitigated risks to the detriment of shareholder value, they might recommend shareholders voting against responsible board members. If there is not an explicit group or member tasked with oversight of these issues, they will recommend voting against audit committee members.

For companies holding annual meetings solely by virtual means, Glass Lewis will review disclosures to ensure shareholders have the same ability to participate as in in-person meetings. This includes factors such as whether shareholders can ask questions during the meeting and the availability of technical support.

The guidelines also listed additional factors relevant for reviewing auditor ratification proposals and include an expanded discussion about how executive compensation factors into their voting recommendations.

Other updates clarified existing approaches on topics such as indemnification insurance, “Net Operating Loss Poison Pill,” OTC-listed companies, and quorum requirements.

ISS Voting Guidelines:
The ISS guidelines will apply to meetings held on or after February 1, 2019.

In response to the significant increase in 2018 of board-sponsored proposals to ratify existing charter or bylaw provisions, ISS will generally recommend a vote against management proposals for such ratification.  Furthermore, ISS guidelines now state that the failure of such a management proposal to receive majority support will trigger a board responsiveness analysis.

ISS will recommend a vote against committee members with chronic poor attendance at board and committee meetings, defined as “three or more consecutive years of poor attendance without reasonable justification.”

Five-year total shareholder returns will now be part of the initial screening, rather than part of the secondary step of director performance evaluation.  ISS also updated its recommendations of when to implement a reverse stock split.

With respect to social and environmental proposals, ISS is formalizing additional factors already considered in ISS’s case-by-case analysis of such proposals, focusing on consideration of the effect of fines, penalties, and litigation on evaluating the effect of proposals on shareholder value.

Notably, ISS will not introduce Economic Value Added (EVA) data in 2019 and will continue using GAAP accounting measures, although it will continue to explore potential future use of EVA.

Finally, ISS’s 2019 guidelines state that for meetings held on or after February 1, 2020, ISS will recommend a vote against the election of the nominating committee chair, or other relevant director, of any company in the Russell 3000 or S&P 1500 with no female directors, absent mitigating factors.

 Cahill, “Glass Lewis and ISS 2019 Voting Guidelines,” Dec. 4, 2018.


Revisions to Yates Memo Policy for Corporate Cooperation
In September 2015, Deputy Attorney General Sally Yates set forth the policy of the Department of Justice (DOJ) regarding individual accountability for corporate wrongdoing and specifically cooperation credit.  This policy statement is commonly referred to as the “Yates Memo.”

The 2015 Yates Memo required that for corporations to be eligible for any cooperation credit, they had to provide the DOJ with “all relevant facts” regarding all individuals involved in the alleged corporate misconduct. In a speech on November 29, 2018, Deputy Attorney General Rod Rosenstein announced revisions to the DOJ’s policy as set forth in the Yates Memo.  Rosenstein acknowledge the challenges related to the Yates Memo and the lack of strict enforcement of its policy.  Therefore, the new policy that he announced “return[s] discretion to [DOJ] attorneys.” He made clear, however, that the DOJ will continue to pursue individuals involved in corporate wrongdoing.

The Yates Memo policy required the DOJ to collect information about every individual involved in the corporate misconduct, which often resulted in significant delay and was difficult if not impossible to accomplish. Therefore, the new policy recognizes that “investigations should not be delayed merely to collect information about individuals whose involvement was not substantial, and who are not likely to be prosecuted.”

In civil cases, companies need no longer need to “admit the civil liability of every individual employee” in order to qualify for cooperation credit. Rather, companies should focus on individuals with substantial involvement or responsibility. In order to qualify for cooperation credit in civil cases, companies must “identify all wrongdoing by senior officials, including members of senior management or the board of directors.” When such information is provided, DOJ attorneys now have flexibility to offer “some credit even if the company does not qualify for maximum credit.”

The revised policy also allows DOJ attorneys to “negotiate civil releases for individuals who do not warrant additional investigation in corporate civil settlement agreements.” Furthermore, the revised policy clarifies that DOJ lawyers can “consider an individual’s ability to pay in deciding whether to pursue a civil judgement.”

 Rod J. Rosenstein, US Department of Justice, “Remarks at the American Conference Institute’s 35th International Conference on the Foreign Corrupt Practices Act,” Nov. 29, 2018.

 Sally Yates, US Department of Justice, “Individual Accountability for Corporate Wrongdoing,” Sept. 9, 2015.


 George B. Breen & Richard W. Westling, Lexology, “The ‘Yates Memo’ Revisited: Pursuing Individuals Remains a DOJ Top Priority – Senior Management and Members of Boards of Directors in Focus,” Dec. 4, 2018.

 Shearman & Sterling, Lexology, “DOJ Scales Back Yates Memo Policy for Corporate Cooperation,” Dec. 5, 2018.


 Sidley Austin, Insights, “DOJ Announces Important Changes to Yates Memo,” Nov. 30, 2018.


Grow or Die: Imperatives of a Value-added Director
The National Association of Corporate Directors identified the top two issues for boards in 2017-2018:  significant industry changes, and business model disruption. In part as a result of these existential threats, boards are playing an increasingly important role in questioning management and providing an outside perspective to ensure a company remains competitive. Thus, excellent directors do not just rely on past experiences, but rather seek out new experiences and contacts to help them better understand today’s challenges.  The article provides several suggestions for how directors can keep up to date and best add value in the boardroom.

First, directors should engage with the business between board meetings. This will allow directors to provide advice and ideas as projects unfold in between board meetings and be involved in communications other than just when key decisions are made at board meetings. Building a strong relationship with key executives will help keep directors directly engaged.

Next, they should put on the hats of both the customer and the employee. Activities such as site visits, talking with customers, and reviewing websites like Glassdoor can help directors have a 360-degree view of the business. Directors should also follow company executives and key executives at competitors on platforms like Twitter.

Directors should also learn from other directors. Groups like NACD can be helpful for expanding one’s director network.

Directors should also bring in experts to address challenges and possibilities. These outside experts can help educate directors and provide fresh perspectives and opinions.

They should also develop new skills and stay on top of technology innovations. Topics such as cybersecurity and social media are becoming increasingly relevant. Law firms, universities, associations, and online platforms often offer seminars and classes that can help directors develop these skills.

Directors should not give up their day job because it is beneficial to have both active and retired executives on a board. The article predicts that “the expiration date on director relevancy is likely to shorten in the coming decade.”

Finally, directors should create a portfolio of business activities. This could include serving on public company boards, a national nonprofit or advisory board, and undertaking consulting projects. This will not only provide directors with increased exposure to current problems and opportunities, but will also expand their network.

These suggested activities and areas for growth will enable directors to better provide insight and guidance.

 Lauren E. Smith, Directors & Boards, “Grow or Die: Imperatives of a Value-added Director,” Q3 2018.


Articles / Alternative Dispute Resolution

General Re Life Insurance Co. v. Lincoln National Life Insurance Co. – Functus officio exception
In the recent case General Re Life Insurance Co. v. Lincoln National Life Insurance Co., the Second Circuit recognized an exception to the doctrine functus officio, holding that when an arbitral award “fails to address a contingency that later arises or when the award is susceptible to more than one interpretation” it may address that issue and clarify its award.

Generally, pursuant to the doctrine of functus officio, once a final award is rendered by an arbitral tribunal that tribunal’s jurisdiction ceases hence the tribunal lacks the power to revisit or revise a final award once issued.

In General Re, the parties disagreed about how to implement a final award. One side sought clarification by the tribunal, but the other side objected.  The tribunal issued a “clarification,” with one dissent. The party seeking clarification, having received the clarification it sought, thereupon moved to confirm the clarified award.  The party that opposed the clarification moved to confirm the original award arguing that pursuant to the doctrine of functus officio the tribunal lacked the power to clarify the award in the manner that it did. The District Court confirmed the clarified award, and the Second Circuit affirmed that decision.

Holding that the doctrine of functus officio does not preclude a tribunal from clarifying an ambiguous award, the Second Circuit stated that its decision “furthers the well‐settled rule in th[e Second] Circuit that when asked to confirm an ambiguous award, the district court should instead remand to the arbitrators for clarification,”  The Appellate Court further stated that its holding was consistent with precedent from the Third, Fifth, Sixth, Seventh, and Ninth Circuits.

Critical to the Second Circuit’s decision was its narrow definition of an “ambiguous award,” and the constraints that it imposed on the power of a tribunal to correct an ambiguous award.  The Court held:

An arbitrator does not become functus officio when it issues a clarification of an ambiguous final award as long as three conditions are satisfied: (1) the final award is ambiguous; (2) the clarification merely clarifies the award rather than substantively modifying it; and (3) the clarification comports with the parties’ intent as set forth in the agreement that gave rise to arbitration. This narrowly drawn rule ensures that in those circumstances where an arbitral body issues an ambiguous award and must issue a clarification, it will do so in keeping with the twin objectives of arbitration: “settling disputes efficiently and avoiding long and expensive litigation.”

It should be noted that many arbitral institution’s rules address the functus officio doctrine and impose limitations that are narrower than the Second Circuit’s holding.  For example, Rule 50 of the American Arbitration Association’s Commercial Arbitration Rules (2013) provides:

Within 20 calendar days after the transmittal of an award, any party, upon notice to the other parties, may request the arbitrator, through the AAA, to correct any clerical, typographical, or computational errors in the award. The arbitrator is not empowered to redetermine the merits of any claim already decided.

Other arbitration institutions’ rules contain similar proscriptions, limiting post final award amendments to clerical, typographical and computational errors.  The Second Circuit’s holding that tribunals may also clarify “ambiguities” is broader than these institutions’ rules.  Question:  are the AAA’s and other institutions’ rules too narrow?

 General Re Life Corp. v. Lincoln National Life Insurance Co., Docket No. 17-2496-cv, United States Court of Appeals for the Second Circuit, Nov. 28, 2018.

American Intl. Specialty Lines Ins. Co. v Allied Capital Corp.:  More on the Doctrine of Functus Offico 
A New York state appeals court recently vacated an approximate $12 million arbitration award that an arbitral tribunal made after initially entering a “final partial award” inconsistent with the ultimate final “final” award entered.

Allied Capital had filed for arbitration under its insurance policies in 2010 seeking coverage from its insurer for a $10.1 million payment to settle claims under the False Claims Act for which the insurer had previously denied coverage.  Additionally, Allied sought defense costs. During the arbitration, the parties agreed that the tribunal should address liability via dispositive motions and that “a separate evidentiary hearing would be ordered as to the calculation of the amount of defense costs” if appropriate.

In March 2016, the arbitration panel “in a 2-1 decision, issued a partial final award [the “Partial Final Award”]” holding that the $10.1 million settlement was not a policy “loss,” hence Allied could not recover.  It ruled, however, that Allied could recover defense costs thus it conducted an evidentiary hearing to determine the amount of such costs.  In the words of the appellate court, this subsequent hearing was “solely to determine the amount Allied should be awarded in defense costs.”

Following the issuance of the Partial Final Award, Allied sought reconsideration on the basis that the panel erred in finding that Allied did not suffer a policy “loss.” The arbitration panel determined that it could reconsider the March 2016 Partial Final Award, and then reversed itself, finding that the $10.1 million claim was indeed a “loss.”

The insurance company, now ordered to pay a $10.1 million claim in addition to defense costs, challenged the “reconsidered” award and sought its vacture in New York state court arguing that the panel exceeded its authority under the doctrine of  functus officio (which holds than an arbitration tribunal loses its jurisdiction once a final award is issued and cannot alter a final award except in limited circumstances).

The New York appellate court ruled in favor of the insurance company, holding that the panel did indeed exceed its authority in reconsidering the original Partial Final Award. Explaining its holding, the Court stated:

The doctrine of functus officio provides that absent an agreement to the contrary, after an arbitrator renders a final award, the arbitrator may not entertain an application to change the award, “except … to correct a deficiency of form or a miscalculation of figures or to eliminate matter not submitted” [citation omitted]  “In order to be final,’ an arbitration award must be intended by the arbitrators to be their complete determination of all claims submitted to them” [citation omitted]  “Generally, in order for a claim to be completely determined, the arbitrators must have decided not only the issue of liability of a party on the claim, but also the issue of damages” [citation omitted]

However, “the submission by the parties determines the scope of the arbitrators’ authority” [citation omitted]  Thus, “if the parties agree that the [arbitration] panel is to make a final decision as to part of the dispute, the arbitrators have the authority and responsibility to do so . . . [and] once [the] arbitrators have finally decided the submitted issues, they are, in common-law parlance, functus officio,’ meaning that their authority over those questions is ended” [citation omitted]

Finding no evidence suggesting that the parties or panel thought the May 2016 Partial Final Award was anything less than a final determination of the issue of loss, the New York appellate court held that “the panel was functus officio with respect to the [Partial Final Award] and thus, the panel’s reconsideration of the [Partial Final Award] on substantive grounds was improper and exceeded its authority.”

 Full decision:  American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., New Your Supreme Court, Appellate Division, First Judicial Department, Slip Op 07194 Decided on October 25, 2018

 Dennis O. Brown & Greil I. Roberts, Lexology, “Large Insurer Overturns $12M Arbitration Award in New York Appellate Court,” Nov. 5, 2018.

How Far Should an Arbitrator Go to Get it Right? 
The question “should an arbitration panel rule solely on the facts and law presented by the parties and their counsel, or take some action to get the right decision” is the subject of some debate within the arbitral community, especially when the parties’ experts present wildly divergent opinions of appropriate damages and the tribunal believes both opinions are wrong.   Some argue that the tribunal should choose between the two incorrect figures; to do otherwise would not be fair because it would help one party at the expense of the other. Others take the view that the arbitrator has an obligation to render an award that “rests on a reasonable view of what happened and what the law says,” and should therefore undertake additional measures to ensure they “get it right.”

These are the positions and the question addressed by Jennifer Kirby. Her conclusion:  arbitrators are duty bound to make some effort to get it right.

Kirby bases this conclusion on the ample case law that holds that arbitrators must apply the applicable law, e.g. “arbitrators are ‘duty bound to apply the relevant law’ and therefore often ‘must become educated in a law that they may not be expert in and may never before have even considered’.”

While the claimant bears the burden of proving its claims, each party generally bears the burden of proving the facts it relies upon to support its claim or defense.  This can lead to finger pointing as to where the relevant burden lies. And it usually lies nowhere where questions of law are concerned.

This is because the content of the law applicable to the merits of the dispute is not normally considered a fact that a party must prove.   But neither is it something the arbitrator necessarily knows.  Indeed, he frequently does not know it.  He must apply it, however.  And that implies that he has an obligation to learn it.  In most cases, he can satisfy that obligation by reading the parties’ submissions.  But where this is not the case, he should not throw up his hands and render an award he considers wrong, but rather seek the information he needs to decide the case correctly.

Doing this often requires tact, skill and some modicum of courage.  A tribunal that decides a case based wholly on the parties’ submissions – no matter how misguided or incomplete – usually runs little to no risk that its award will be set aside. The arbitrator’s duty to get it right is not an enforceable one. Some arbitrators doubtless take comfort in this. Here’s to one who doesn’t.

Jennifer Kirby, The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer, “How Far Should an Arbitrator Go to Get it Right?,” 2017.


Articles / Interesting Case of the Month

Ballot Breakdown:
“Partisan gerrymanders. Voter purges. Cyberattacks. Electoral College backlash” –  Columbia University asked a group of its professors “for a status report on the central mechanism of US democracy.”  Their response:  there are ‘8 things . . . every reader [should] know.”

First, there has been decreasing faith in the integrity of the American voting system. This has resulted, at least in part, from events such as the two recent presidential elections where the popular vote winner did not prevail.  However, abolishing the Electoral College (which permits for such outcomes) would require a constitutional amendment, which seems unlikely.

Next, efforts to suppress the votes of those thought not to favor the party in power are increasing.  In the 2013 Supreme Court decision Shelby County v. Holder, the Court held that the formula used to determine what jurisdictions required oversight of changes in voting laws was unconstitutional because states were being discriminated against based on past behavior.  Immediately after the decision, several states introduced new bills such as those imposing more stringent voter ID requirements in Texas and North Carolina.  Although such changes have met legal challenges, they have had an effect on election results.  For example, African-American turnout in North Carolina in the 2016 election was negatively impacted.  Per the authors:

“Black Turnout Down in North Carolina After Cuts to Early Voting,” NBC News reported on November 7, 2016, the day before the presidential election. In the end, Donald Trump won the state that Barack Obama ’83CC carried
in 2008.

“North Carolina is widely seen by conservatives and liberals as a laboratory for what the future of voter rights might look like,” Cobb says. “The demographics of the electorate in the coming years is the main battlefront in politics right now.”

Third:  States are purging their voter rolls in efforts to control who votes.  Using the “purported problem of rampant voter fraud” voters are being stricken from the [rolls] and voting suppressed.  “[T]he claim of voter fraud is itself fraudulent: numerous studies have found virtually none at all.”  However, some states have used such claims to justify voter purges. For example, Ohio lawmakers purge the rolls by sending out postcards to anyone who did not vote during a two-year period. If someone does not vote in the next four years or return the postcard, they will be purged. The Supreme Court recently upheld this law as providing reasonable evidence that someone had moved. Some have proposed challenging such laws based on discrimination to minorities.

Fourth:  Gerrymandering “isn’t going away” and may in fact be on the rise.  There is currently a lack of clarity around the permissibility of political gerrymandering (as opposed to racial gerrymandering, which is unquestionably illegal).

“The Supreme Court has been going round and round on partisan gerrymandering,” says [one professor]. “What they’ve said is that districting is so inherently political that it has been difficult to find principled criteria in the Constitution or constitutional law that the courts could use to distinguish what’s permissible from what’s impermissible.”

This past Spring the Supreme Court heard a claim by Wisconsin Democrats in the case Gill v. Whitford that their voting districts had been gerrymandered.

“Wisconsin is evenly divided politically between Republicans and Democrats, but because of packing, Democrats win fewer districts by wider margins — 80–20 or 90–10 — while Republicans win more districts by narrower margins,” . . . “There are no 90 percent Republican districts.

“The claim in Gill v. Whitford was that the Republican-controlled state legislature diluted the Democratic vote and maximized the number of districts Republicans would likely control — and that this violates the guarantee of equal protection under the Fourteenth Amendment.”

The Court held 9-0 that because the claimants could not “show [that] they were personally affected by the gerrymanders,” their case must be dismissed.  However, the Court did not rule out that partisanship COULD be the basis for overturning a gerrymander.

Fifth:  There is great concern about cybersecurity, especially with respect to voting machines. States’ voter-registration databases are another vulnerability. However, the concerns are not just about hacking; many worry about computer error.

[M]any jurisdictions installed computerized voting systems. Computer scientists have long been opposed to this. No computer scientist trusts computerized voting systems. They’re just not secure enough. Across the country, people are casting votes on these electronic voting machines that leave no paper trails.”

[Those who understand computerized voting are] much more worried about computer error — buggy code — than cyberattacks.”. . .“There have been inexplicable errors in some voting machines. It’s a really hard problem to deal with. It’s not like, say, an ATM system, where they print out a log of every transaction and take pictures, and there’s a record. In voting you need voter privacy — you can’t keep logs — and there’s no mechanism for redoing your election if you find a security problem later.”

Sixth:  “Reality is under attack.  While fake news is increasingly present online, its precise effects are still unknown. In July, thirteen Russians were indicted for setting up hundreds of Facebook accounts and buying ads to damage Hillary Clinton and help Donald Trump. Although social media companies have taken steps to filter out fake news, some suggest that “what needs to be understood and addressed most are the sources of fake news and the phenomena that drive online traffic.”

[T]his battle over reality will only get more complicated as technology advances and becomes more available. “We are quickly moving into an era where the ability to edit images or videos — even to change faces — is going to improve so much,” he says, “that you won’t be able to trust anything.”

The professors’ last two points address the future and how to moving forward.  They are concerned how the 2020 election will affect the 2020 census, especially in light of the potential nastiness of the election and concerns about adding a citizenship question on the Census. Some, like Ester Fuchs, the director of Columbia University’s Urban and Social Policy program, think that voter engagement is key to help solve concerns about and lack of confidence in the voting system.

“Education campaigns are crucial. We need to put civics back into eighth-grade education. Few people understand how elections work or how a bill becomes a law or how government impacts their lives. The way to get people engaged is to get them to understand that government decisions affect their day-to-day lives, and that there’s something at stake if they don’t participate.”

Paul Hond, Columbia Magazine, “Ballot Breakdown,” Fall 2018.


How Your Brain Tricks You Into Believing Fake News:
With the average American spending 24 hours online each week, fake news is becoming increasingly problematic, especially as meddlers try to manipulate elections worldwide by spreading disinformation.  However, fake news also affects a wider sphere, such as vaccinations, Holocaust denial, and rumors about false child kidnappings.

In light of the proliferation of fake news, a team at Stanford University led by Sam Wineburg called the Stanford History Education Group is trying to answer “two of the most vexing questions of the Internet age: Why are even the smartest among us so bad at making judgments about what to trust on the web? And how can we get better?”

Per Wineburg’s group, while there are unquestionable bad actors consciously trying to deceive us –

What is clear, however, is that there is another responsible party. The problem is not just malicious bots or chaos-loving trolls or Macedonian teenagers pushing phony stories for profit. The problem is also us, the susceptible readers.

Stanford researchers have found that Americans of all ages and backgrounds fail to ask important questions about content they see online, making us increasingly gullible online. Furthermore, studies suggest people are inclined to believe false news at least 20% of the time. People don’t fall for false news because they are dumb, but rather because they let the wrong impulses take over.

One such impulse is the innate desire for an easy answer. Humans also have a tendency to assume that if something is familiar, it must be good and safe. Furthermore, humans tend to believe things to which they have been previously exposed. While such tendencies might have helped our ancestors survive, they can cause problems in the increasingly digital landscape.

There are also difficulties related to the nature of the Internet. For example, stories can be posted online without the vetting of books or traditional printed newspapers. It is more difficult for humans’ brains to make sense of different types of information because it all looks so similar. Furthermore, people also tend to assume that if something appears higher in Google search results, it is more reliable. People also tend to trust visuals, even those used in false contexts.

Fact-checkers have come up with suggestions to help detect fake news. For example, in determining an organization’s legitimacy, they use lateral reading by looking on the wider web to see what it says about the organization. Fact-checkers also use “click restraint” by scanning an entire page or two of search results before choosing which to select. They recommend starting with the question “who is behind the information?” Additionally, as 6 in 10 links are retweeted without users’ reading the actual article, it is useful to actually read the article. Fact checkers also recommend looking for claims or articles that seem outlandish. Some advocate using shame to increase awareness of “digital pollution” online and make people feel like they are littering when they forward things that aren’t true. Others recommend introducing new curricula in schools to help train students on how to determine the reliability of online information.

Katy Steinmetz, Time Magazine, “How Your Brain Tricks You Into Believing Fake News,” Aug. 9, 2018.


Atlantis Found (Again)! And Exasperated Scientists (Again) Raise Their Eyebrows:
A U.K. based group claims to have discovered the ruins of the once prosperous city of Atlantis on the Atlantic coast of Spain. However, most archaeologist do not believe this is the actual Atlantis, pointing to dozens of such claims over the years, and think the ruins likely belong to another ancient culture.

Plato described Atlantis about 360 B.C. and for centuries scholars viewed Plato’s writings as an allegory. However, in 1882 a Minnesota U.S. representative published a book claiming Atlantis was a real place, resulting in people searching for the city’s sunken remains.

Two years ago employees at Merlin Burrows using data from commercial satellites found what they claimed may be Atlantis in Spain’s Doñana National Park. The site comprises remains of a long sea wall, large circles that could have been the bases of towers, ruins of a possible temple, and evidence of a tsunami. They made a documentary called “Atlantica” about their findings. Interestingly, other parties, including National Geographic and a 2004 study in the journal “Antiquity” have also hypothesized that Atlantis could be in southern Spain.

Many, however, are deeply skeptical that the find is in fact Atlantis.

[O]ne archaeologist said that the ruins likely belong to another ancient culture, and several researchers interviewed by Live Science could barely contain their exasperation when they heard the news of yet another Atlantis discovery. (People have made dozens of such claims over the years, locating the legendary society in Antarctica, Bolivia, Turkey, Germany, Malta, the Caribbean and elsewhere.)
“Bless their hearts — if they’re correct about this, that would be awesome,” said Ken Feder, a professor of anthropology at Central Connecticut State University. “But here’s my problem: As an archaeologist, I know that I always need to be in the company of my bullshit detector. And these guys, they have done just about everything they possibly can to set off my bullshit detector.”

The article describes the find as presented, history about the Atlantis “myth,” and other claimed Atlantis “finds.” It’s a fun and light read, and worthy of one’s time for a mental relaxation break.

Laura Geggel, Live Science, “Atlantis Found (Again)! And Exasperated Scientists (Again) Raise Their Eyebrows,” Nov. 28, 2018.