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Two AI Truths and a Lie
Get PDFIndustry will take everything it can in developing Artificial Intelligence (AI) systems. We will get used to it. This will be done for our benefit. Two of these things are true and one of them is a lie. It is critical that lawmakers identify them correctly. In this Essay, I argue that no matter how AI systems develop, if lawmakers do not address the dynamics of dangerous extraction, harmful normalization, and adversarial self-dealing, then AI systems will likely be used to do more harm than good.
Given these inevitabilities, lawmakers will need to change their usual approach to regulating technology. Procedural approaches requiring transparency and consent will not be enough. Merely regulating use of data ignores how information collection and the affordances of tools bestow and exercise power. A better approach involves duties, design rules, defaults, and data dead ends. This layered approach will more squarely address dangerous extraction, harmful normalization, and adversarial self-dealing to better ensure that deployments of AI advance the public good
DCI Submission to the European Commission (EC) on Generative Artificial Intelligence
Get PDFThe DCI welcomes the opportunity to submit comments on the EC’s consultation on competition and generative artificial intelligence (hereafter, “GenAI”).1 The two main messages of the DCI submission are the following: • The technological and economic properties of GenAI do not support a case of tipping in which one firm takes the entire market; • The financial and regulatory context of GenAI could fuel ‘winner takes all or most’ dynamics in GenAI markets. These points are set out in more detail in the paragraphs below
Chief Justice Abraham Lincoln and the End of Reconstruction
No full textImagine Abraham Lincoln surviving the assassination attempt, serving two full terms as President and then becoming Chief Justice of the Supreme Court. Chief Justice Abraham Lincoln and the End of Reconstruction imagines that and more, as Chief Justice Lincoln endeavors, with his successor as President, President Ulysses S. Grant, and his friend and confidant Frederick Douglass, to preserve the civil rights of Black Americans after former Confederates re-take control over Southern States and try to impose Jim Crow segregation and worse. The book also examines the disputed 1876 Presidential Election and the withdrawal of the United States Army after the Compromise of 1877 put Rutherford B. Hayes in the White House.https://scholarship.law.bu.edu/books/1372/thumbnail.jp
The US Preventive Services Task Force in Legal Jeopardy
No full textFor 40 years, as a guide for physicians and the general public, the US Preventive Services Task Force (USPSTF) has reviewed the scientific evidence and issued critical recommendations on preventive health measures, including screening for cancers of the cervix, colorectum, and breast.1 In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA), which included a provision (Section 2713) that preventive health recommendations issued by the USPSTF and assigned an A or B rating (the highest ratings, indicating the strongest evidence in support) must be covered by most private health insurers without cost-sharing.2 The same coverage mandate applied to vaccination recommendations from the Advisory Committee on Immunization Practices (ACIP) and preventive health measures recommended by the Health Resources and Services Administration (HRSA). The ACA provided that the USPSTF and its recommendations “…shall be independent and, to the extent practicable, not subject to political pressure.”
In 2020, after a long string of legal challenges to the ACA, a group of plaintiffs, comprising 2 businesses and 6 individuals, filed a new lawsuit in a Texas-based federal court, claiming that the ACA preventive services coverage requirement was unconstitutional under a range of 5 legal theories.4 In the case, known as Braidwood Management Inc v Becerra, the plaintiffs argued that members of the USPSTF, ACIP, and HRSA were acting as officers of the United States, yet they had not been appointed in accordance with the Appointments Clause of Article II, Section 2, Clause 2 of the US Constitution
The Dubious Validity of the System of Deportation Arrests
Get PDFDid you ever wonder how it came to be that people suspected of immigration violations are subject to arrest without a judicially issued warrant? That executive branch immigration enforcement officers themselves have the authority to issue enforceable arrest warrants? And further, how it came to be that alleged immigration law violators can be held in prolonged detention without a probable cause hearing before a neutral magistrate of any kind?
When I first encountered this set of related issues, I quickly learned the conventional wisdom, that based on a longstanding tradition and Supreme Court approval, immigration law is an exception to the Fourth Amendment’s requirements that only judicial officers can issue arrest warrants and that in cases of warrantless arrest, the arrestee must be brought before a neutral judicial officer within a reasonable amount of time, normally not to exceed 48 hours. Professor Lindsay Nash’s excellent recent article Inventing Deportation Arrests reveals, through meticulous historical and doctrinal analysis, that the conventional understanding is built on shaky legal and historical ground and is subject to serious abuse. The article is very well written and enlightening on an important subject that I suspect has been somewhat opaque to most scholars of administrative law
Ogoni Activism and Access to Remedy: Business and Human Rights from the Bottom Up
Get PDFDo court victories result in social change? Can victories in court result in losses outside of court? If victories in court are no guarantee of victory outside of court, how much worse are court defeats? This Article explores these questions in part through analyzing Ogoni litigation against Royal Dutch/Shell. In 2002, Esther Kiobel and several co-plaintiffs tried to hold Royal Dutch/Shell accountable for its role in the death of Kiobel’s husband and for wider corporate abuses and related state human rights violations in Ogoniland. But in 2013, a unanimous United States Supreme Court held that the Alien Tort Statute (ATS) did not expressly grant extraterritorial jurisdiction to the federal courts to hear suits such as Kiobel’s. Esther Kiobel’s failed litigation in the United States (and in the Netherlands) merely exemplifies the extent to which foreign courts in the Global North—— the courts of the company—effectively insulate multinational corporations from accountability for human rights violations and environmental wrongs. Worse still, Kiobel’s failure was not hers alone. Kiobel’s activism led directly to the narrowing, and ultimately the shuttering, of the ATS mechanism for corporate accountability litigation—a victory for corporations rather than for their victims. Kiobel’s activism suggests that courts may be a “hollow hope.”
Despite these litigation failures and setbacks, I argue, the focus on ATS litigation in the United States and the failure to appreciate favorable outcomes in foreign corporate accountability litigation obscures the role that litigation plays in norm generation and norm diffusion processes. In the aggregate, there have been numerous positive outcomes from Ogoni litigation over the past three decades. Far from being a hollow hope, I argue that if one looks beyond Kiobel’s case and other ATS cases that dominate the focus of much discourse in the U.S. legal academy, one might perceive how victim-plaintiffs have succeeded in other forums such as in Canada, England, the Netherlands, France, and elsewhere in Europe. I show, moreover, that whether Ogoni and other Indigenous victim-plaintiffs win or lose, their continued litigation generates positive benefits for society by challenging procedural barriers and by shifting the discourse around corporate accountability for human and environmental rights violations. Scholars have long recognized the role that corporations, among other non-state actors, can play in the formation of international law. Here, Indigenous peoples’ transnational legal mobilization in the corporate accountability and environmental rights spaces constitutes an example of international lawmaking from the bottom up. I thus argue that it is time for scholars of international law and human rights to pay more attention to the international lawmaking—the agency—of Indigenous peoples and other marginalized demographic groups. Ogoni and other Indigenous victim-plaintiffs have brought into mainstream legal and political discourse the cultural and group rights claims of Indigenous populations (for example, self-determination and language claims). They have forged connections with Indigenous groups and environmentalists around the world who support each other’s litigation and non-litigation campaigns. They have stimulated and enabled the capacity-building of non-profit public interest litigation organizations to sustain multi-year challenges against well-resourced multinational corporations.
Indeed, as I argue in this Article, the positive outcomes of Ogoni and other Indigenous peoples’ transnational legal mobilization include the very making of international law from the bottom up. This lawmaking is reflected in soft law instruments such as the UN Guiding Principles on Business and Human Rights, which adopts “access to remedy” as one of its three central pillars, and in the text of the UN Human Rights Council open-ended intergovernmental working group’s draft business and human rights treaty, which likewise declares access to remedy to be a core purpose. Thus, there is an extent to which the Ogoni case study reveals an instance of “winning through losing.
A New Approach to Patent Reform
Get PDFScholars and policy makers have tried for years to solve the tenacious and harmful crisis of low quality, erroneously granted patents. Far from resolving the problem, these determined efforts have resulted in hundreds of conflicting policy proposals, failed Congressional bills, and no way to evaluate the policies’ value or impact or to decide between the overwhelming multiplicity of policies.
This Article provides not only new solutions, but a new approach for designing and assessing policies both in patent law and legal systems more generally. We introduce a formal economic model of the patent system that differs from existing scholarship because it permits us to (1) determine how a policy change to one part of the patent system affects the system as a whole; and (2) quantify the impact of policy changes. Existing scholarship typically analyses a policy by assessing its effect on just the targeted element of the patent system, but legal systems are complex with interrelated components and players react along multiple margins, so these analyses are incomplete and sometimes incorrect. Our approach fixes this problem, providing a comprehensive understanding of how a policy change affects the patent system from beginning-to-end. It also permits us to conduct complex analyses such as varying multiple policies at once. Further, much existing scholarship fails to quantify the magnitude of a policy’s effect, and even empirical scholarship can only measure the effect of an already-implemented policy, not predict the effect of a proposed change. Quantification is critical because policies generally have multiple effects, often in countervailing directions. Quantification—as shown using our model—permits scholars to determine the overall direction and size of a theoretically ambiguous effect. Quantification also allows us to compare the social welfare effects of different reforms so that policy-makers know where to focus their efforts.
We apply our model to several of the most prominent policy debates in patent law. We conclude that certain reforms such as regulation of settlement licenses and increased examination intensity yield large gains in social welfare and should be prioritized. Other reforms that are popular with scholars, including decreasing the availability of injunctions and reducing litigation costs produce surprisingly small gains in social welfare. Often existing scholarship operates too much on intuition, which, we show, can be wrong. Our new approach to patent reform provides an approach that offers deeper understanding and a more effective evaluation framework
Tort Theory and the Restatement, in Retrospect
Get PDFThis is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared that process to the process by which the Restatement identifies and articulates rules. In this paper, I am looking back and assessing the connection between positive tort theory and the Restatement. My general argument is that positive tort theory has been successful in explaining the grounds for the common law of torts, and at the same time it remains an underutilized and underexploited resource for the Restatement project
Most Blessed of the Patriarchs : Thomas Jefferson and the Empire of the Imagination
No full texthttps://scholarship.law.bu.edu/clark_speakers/1100/thumbnail.jp
Revisioning Algorithms as a Black Feminist Project
Get PDFWe live in an age of predictive algorithms.1 Jurisdictions across the country are utilizing algorithms to make or influence life-altering decisions in a host of governmental decision-making processes—criminal justice, education, and social assistance to name a few.2 One justification given for this algorithmic turn concerns redressing historical and current inequalities within governmental decision-making.3 The hope is that the predictions produced by these predictive systems can correct this problem by providing decision-makers with the information needed to make fairer, more accurate, and consistent decisions.4 For instance, jurisdictions claim that their turn to risk assessment algorithms in bail, sentencing, and parole is in order to de-bias decisions made in these areas. However, this hope has not borne out in practice. Rather than de-biasing decision-making, algorithms have tended to operate to reinforce it.5 A primary reason is that these systems tend to produce disparate predictions that track existing social inequities and facilitate harmful outcomes for marginalized communities, particularly racially and otherwise politically oppressed communities.6 To compound the issue, since these systems tend to be applied to an entire sector, the predictions produced operate to maintain existing inequities, social hierarchies, and the resulting political, economic, and social oppression of our current moment.7 Professor Safiya Umoja Noble’s work has provided us with a language and a framework to understand this state of affairs. She employs the term “algorithmic oppression,” which she uses to refer to how algorithms “serv[e] up deleterious information about people” and resultingly “reinforce oppressive social and economic relations.”8 By cementing existing political, social, and economic hierarchies, these algorithmic systems—as Professor Dorothy Roberts explains—exacerbate marginalized communities’ vulnerability to state-sanctioned violence, resource deprivation, and other precarious outcomes that hamper their ability to exercise full citizenship in this country.9 When viewed in tandem, the multifaceted effects of algorithmic oppression threaten to “lock in” our unequal status quo into the future.1