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The Automated Administrative State
No full textThe administrative state has undergone radical change in recent decades. In the twentieth century, agencies in the United States generally relied on computers to assist human decision-makers. In the twenty-first century, computers are making agency decisions themselves. Automated systems are increasingly taking human beings out of the loop. Computers terminate Medicaid to cancer patients and deny food stamps to individuals. They identify parents believed to owe child support and initiate collection proceedings against them. Computers purge voters from the rolls and deem small businesses ineligible for federal contracts
The Legal Design for Parenting Concussion Risk
Get PDFThis Article addresses a question as yet unexplored in the emerging concussion risk literature: how does the statutorily assigned parental role in concussion risk management conceptualize the legal significance of the parent, and does it align with other areas of law that authorize and limit parental risk decision-making? Parents are the centerpiece of the “Lystedt” youth concussion legislation in all fifty states, and yet the extensive legal literature about that legislation contains no discussion of parents as legal actors and makes no effort to situate their statutory role into the larger legal framework of parental authority. This Article considers the Lystedt framework from the perspective of other law engaging parental authority and parental decision-making, placing Lystedt’s parental role in that larger family law framework. That lens reveals that the Lystedt legislation may be using the cultural capital of parental authority to shield youth athletic leagues from having to fully grapple with concussion risk. Under the Lystedt framework, parents are unwittingly functioning as an impediment to safety improvements, shielding athletic associations from conventional pressures to improve. The operation of Lystedt is in this way a departure from related areas of law that set boundaries on parental authority to accept risk of injury on behalf of a child, including limitations on the enforcement of parental waivers of liability. Finally, Lystedt unrealistically elevates parental responsibility without adequately providing parents the capacity and opportunity to be effective protectors of their children’s welfare. I argue that in a time of intense cultural ambivalence about concussion risk in athletics, the rich concept of parental authority is expropriated in the Lystedt concussion statutes to avoid threats to the structure of youth sports that would otherwise be vulnerable to pressures to change in order to reduce concussion risk. The NFL lobbied states to adopt this legislation, under which parents function to preserve the status quo
Retour sur L’Affaire de L’Alabama: De l’Utilité et de l’Histoire pour l\u27Arbitrage International
No full textFor any aficionado of international law and international arbitration, the 1872 Alabama case represents a rich historical landmark, as promising a mine as the wreck of the Confederate Ship Alabama itself, sunk off Cherbourg, in 1864, by the United States Ship Kearsarge. This arbitration represents a turning point in relations between the United States and Great Britain, from repeated conflict to a “Special Relationship” that has grown stronger during the past century and a half. The case also marked the revival of international arbitration, after centuries of uncertainty. Not least, the case introduced long-lasting procedural innovations: the neutral collegial tribunal, complex nuances in the timing and extent of arbitrators’ power to determine their own jurisdiction, the admission of dissenting opinions, the principle of procedural proportionality. Innovations in substantive law included a new appreciation for the delicate interaction of international law and national law, and the concept of “due diligence” now at the core of the State responsibility under international law, particularly for environmental matters
Judicial Impartiality in an Empirical Era
No full textThe psychological dimensions of judicial impartiality is a topic of considerable interest, with a growing body of scholarship focused on the reasons judges often are unable to perceive their own biases.1 The attention is not on why judges intentionally downplay factors that can undermine their own objectivity, but rather on the empirical reasons that everyone, judges included, tend to be unaware of the impact of their own biases. This “bias blind spot,”2 a product of a series of unconscious cognitive and motivational factors, is at the center of the discussion, with even the Supreme Court making passing reference to the pernicious influence of unconscious psychological factors in its recent disqualification jurisprudence.3
Professor Robertson’s article, Judicial Impartiality in a Partisan Era, 4 makes a significant contribution to this topic by deftly integrating the psychology of judicial decision-making into the larger conversation about the partisan threat, real and perceived, to judicial impartiality. Her analysis emphasizes the psychological dimensions of identity theory, a field of study that explores how people behave based on the social groups to which they belong.5 As she explains, judicial identity is closely wrapped in the self-perception of impartiality, the foundational feature of the rule of law, so that any non-verifying feedback threatening that identity can be expected to produce “emotional distress and a tendency to employ cognitive strategies that discount or discredit such feedback.”6 The bias blind spot is one such cognitive response, which allows judges to maintain a belief in their own objectivity, even when there is evidence to the contrary.7 Partisanship, like all motivations, can do its work without any conscious awareness of its deleterious effects.
Professor Robertson also makes the compelling argument that recusal is a weak tool to protect against the appearance of judicial bias for a number of reasons, including the malleability of determining how a reasonable person might perceive the effects of a judge’s partisan leanings.9 As she states:
The appearance of impartiality, after all, is in the eye of the “reasonable” beholder—and as the public grows more partisan, views of judicial conduct will likewise split along party lines. . . . When the public is so polarized, it becomes extremely difficult to identify the view of a “reasonable” person. 10
Indeed, she notes that allegations of partisan bias may even do more harm than good by further undermining public confidence in an impartial judiciary
The Public Information Fallacy
Get PDFThe concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.In this article, I argue that the “no privacy in public” justification is misguided because nobody knows what “public” even means. It has no set definition in law or policy. This means that appeals to the public nature of information and contexts in order to justify data and surveillance practices is often just guesswork. There are at least three different ways to conceptualize public information: descriptively, negatively, or by designation. For example, is the criteria for determining publicness whether it was hypothetically accessible to anyone? Or is public information anything that’s controlled, designated, or released by state actors? Or maybe what’s public is simply everything that’s “not private?”If the concept of “public” is going to shape people’s social and legal obligations, its meaning should not be assumed. Law and society must recognize that labeling something as public is both consequential and value laden. To move forward, we should focus the values we want to serve, the relationships and outcomes we want to foster, and the problems we want to avoid
Theories of State and Family
No full textThe goal of this chapter is to highlight the role of family law as a site of governance and distribution. Following a brief description of theoretical interventions on family law in this vein, the chapter then turns to the specific case of India where family law is complicated by a system of “personal laws” that gives the authority to govern the family to religious leadership. Focusing on Muslim Personal Law (MPL) the chapter demonstrates how family law not only provides the opportunity for the state to govern family but also offers a tool to manage religious minorities, in this case, Muslims. Issues of gender are central to the management of family, community, and religion in India where secular and religious law interact to create a complicated interplay of rules that individuals must navigate in the context of marriage and divorce. These rules are produced and maintained in the context of a country that faces high levels of communal violence. This chapter argues that transformations in MPL in India are not only the product of shifting religious belief and practice but the outcome of broader social, political, and economic contestation. By contextualizing MPL it is possible to see how family law in India not only distributes rights and responsibilities within the family, it also works to govern the Muslim community
A shot in the arm for new antibiotics
No full textTo the Editor — On 1 October, a new US Centers for Medicare and Medicaid Services (CMS) rule comes into effect that enhances economic incentives for newer antibiotics administered in US hospitals. The rule represents an economically significant post-approval (‘pull’) incentive to boost antibiotic development. If it is followed by further regulatory action in the coming year, it may prove to be the largest antibiotic pull incentive ever created by the US government. Although the new rule is a welcome shot in the arm for antibiotic discovery and development, the current moribund state of the antibacterial R&D ecosystem means that other incentives, such as a ‘market entry reward’, are still needed to fully incentivize drug companies to embrace (rather than leave) this spac
The Inconsentability of Facial Surveillance
Get PDFGovernments and companies often use consent to justify the use of facial recognition technologies for surveillance. Many proposals for regulating facial recognition technology incorporate consent rules as a way to protect those faces that are being tagged and tracked. But consent is a broken regulatory mechanism for facial surveillance. The individual risks of facial surveillance are impossibly opaque, and our collective autonomy and obscurity interests aren’t captured or served by individual decisions.In this article, we argue that facial recognition technologies have a massive and likely fatal consent problem. We reconstruct some of Nancy Kim’s fundamental claims in Consentability: Consent and Its Limits, emphasizing how her consentability framework grants foundational priority to individual and social autonomy, integrates empirical insights into cognitive limitations that significantly impact the quality of human decision-making when granting consent, and identifies social, psychological, and legal impediments that allow the pace and negative consequences of innovation to outstrip the protections of legal regulation.We also expand upon Kim’s analysis by arguing that valid consent cannot be given for face surveillance. Even if valid individual consent to face surveillance was possible, permission for such surveillance is in irresolvable conflict with our collective autonomy and obscurity interests. Additionally, there is good reason to be skeptical of consent as the justification for any use of facial recognition technology, including facial characterization, verification, and identification
Julian Assange and Omar al-Bashir: What Comes Next for Two Global Fugitives?
No full textYesterday was a breathtaking one for global criminal justice. First, British police arrested Julian Assange at the Ecuadorian embassy in London and then, just hours later, the Sudanese military arrested President Omar al-Bashir, ending his almost thirty-year reign there. Both men were fugitives; the United States has indicted Assange for conspiracy to commit computer intrusion while the International Criminal Court (ICC) wants al-Bashir for genocide, crimes against humanity, and war crimes.
What comes next in these two cases? And what do they tell us about the challenges of cross-border law enforcement
Op-Ed: Sex Trafficking Defendants Have a New Face -- White, Wealthy and Well-Connected
Get PDFThe new faces of sex trafficking are increasingly white, affluent and well-connected. In an indictment unveiled July 8 in the Southern District of New York, Jeffrey Epstein, the wealthy hedge fund manager, was charged with sex trafficking for recruiting numerous minors for paid sex acts. In 2018, a federal judge ruled that Harvey Weinstein, the film producer, could be sued under the federal sex trafficking law for allegedly coercing a woman to engage in sex in exchange for promises of job advancement