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Bias and Biometrics: Regulating Corporate Responsibility and New Technologies to Protect Rights
Get PDFA growing body of literature has documented the ways in which algorithms and new technology are being deployed in ways that discriminate and violate human rights. The regulatory environment is still evolving, but not as rapidly as new technologies are being introduced by private corporations and implemented in public settings. Governments are using AI in immigration and asylum determinations and law enforcement, arenas where racism and xenophobia can often arise. In the aftermath of the racial justice uprisings following the murder of George Floyd, some technology firms pledged to reconsider providing surveillance technology to police without protections in place. This essay explains algorithmic discrimination, examines emerging international and comparative legal and public policy initiatives to regulate AI and evaluates private sector voluntary guidelines intended to regulate the use of technology to respect human rights.
There is a growing awareness of what researchers at the intersection of critical race theory (CRT) and science and technology studies (STS) have identified as algorithmic discrimination. 1 Avoiding and addressing bias in the ways new technologies are designed and deployed and adopting rights-respecting approaches have yet to gain significant traction in certain sectors of the tech community. To reduce the adverse impact of new technologies on disfavored populations subjected to discrimination, interdisciplinary approaches to identifying and addressing injustice will be essential. I propose that: (1) emerging regulatory frameworks be crafted consistent with the procedural guidance articulated in the UN Guiding Principles on Business and Human Rights; and (2) efforts to diversify decision-making and sensitize those responsible for design in the technology sector to the potential human rights risks presented by technology products be strengthened
Centering Black Women in Patent History
Get PDFProfessor Kara Swanson’s latest article is a remarkable example of legal historical scholarship that excavates stories from the past to illuminate the present. It is chock full of archival evidence and historical analysis that explains gaps and silences in the United States patent registry as evidence of marginalized inventors–particularly Black women–who should be named inventors but are not.
The article is arresting reading for anyone interested in antebellum history, intellectual property, and the intersection of racism and sexism in law. Mostly, I am grateful to Professor Swanson for doing the obviously very hard work of digging through archives, reading microfiche, and scouring other primary and secondary sources for what she calls the “whispers” of Black women inventors of our past whose stories need to be told to change the narrative of U.S. inventorship
Keep To the Code”: A Global Code of Conduct for Third-Party Funders
Get PDFGlobal commercial third-party funding has given rise to wide-ranging regulatory approaches worldwide. Consequently, funders can engage in cross-border regulatory arbitrage by exploiting regulatory gaps within and among nations. This Article argues that the global community of nations should articulate a universal approach to the behavioral expectations of third-party funders operating transnationally, independent of local laws regarding the technical business of funding. It asserts that the key to fostering the ethical development of the third-party funding industry is to develop a globally applicable but locally enforced code of conduct or professional responsibility for the industry. Moreover, a successful regime for funder professional responsibilities should be genuinely transnational, transsubstantive, and forum neutral. The ideal framework should also be clear but not rigid, and comprehensive but customizable. Individual governments, transnational regulatory efforts, and funders creating internal governance codes can then adopt the principles in this framework to achieve global harmonization.
This Article takes three crucial steps toward harmonizing the professional responsibility tenets for the third-party funding industry through a transnational, transsubstantive, and forum-neutral Model Code of Conduct for Third-Party Funders. First, this Article provides a brief overview of several existing approaches to regulating and enforcing third-party funding ethics and professional responsibility globally. Second, this Article distills from these existing approaches universal principles as the starting point for drafting a global Model Code of Conduct for Third-Party Funders in the future. Third, this Article discusses several implementation and enforcement options for such a code, including drawing an analogy to the successful and celebrated New York Convention, which is globally applicable but locally enforced. Finally, this Article concludes by proposing avenues for further inquiry to bring this idea to fruition
Policing the Womb: Invisible Women and the Criminalization of Motherhood. By Michele Goodwin. Cambridge: Cambridge University Press, 2020.
No full textThough the constitutional law of abortion and reproduction is built on the edifice of privacy and choice, reproductive justice scholars and advocates have long critiqued the frames of “choice” and “privacy” as abstract legal doctrines that are not actually descriptive of the reality of women’s lives. For these critics, abstracting away from women’s lives masks the reality of how the law shapes women’s reproductive decision making. Worse yet, it makes it seem like poor health and pregnancy outcomes are the result of choice rather than the structural and social determinants that shape people’s lives. This paradox is particularly true for poor women whose lives are structured by the rules of the welfare state. And where these poor women are women of color—particularly Black and Latinx—racism adds additional dimensions to the purported rationales for regulating women’s bodies. Key books have laid the foundations for the critique of an abstract, legalistic approach to reproductive rights. In her now famous and foundational text, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, Dorothy Roberts demonstrates this through a sustained examination of how Black women’s reproduction has been controlled and managed by the state and private actors.In her recent work, The Poverty of Privacy Rights, Khiara Bridges highlights how poor women accessing pregnancy-related care are subject to a range of assessments that undermine any conception of privacy
Is the End of Roe v. Wade Near? Leaked SCOTUS Brief Says Yes
Get PDFProtesters on both sides of the abortion debate descended on the US Supreme Court Monday night and into Tuesday after a leaked secret draft of a US Supreme Court opinion indicated that a majority of justices support overturning Roe v. Wade, after almost 50 years of legalized abortion rights in America. If finalized, possibly as soon as this summer, the bombshell could trigger a cultural tsunami across American life, forcing some women to travel to another state for an abortion and putting the divisive issue at the heart of the fall midterm elections
Cases and Materials on Employment Discrimination and Employment Law, the Field as Practiced, 6th ed.
No full textThis casebook provides considerable flexibility for an instructor teaching employment discrimination law, employment law, or a combination of both topics. It includes an in-depth treatment of Title VII, the ADA, and the ADEA, as well as chapters on sexual orientation and gender identity discrimination, affirmative action and retaliation. It introduces the concept of employment-at-will, and contractual and tort-based exceptions. This casebook also provides an overview of laws relating to workplace injuries, as well as chapters on wage and hour law, compensation discrimination, and employee classification or misclassification. It also includes a chapter on employee duties to the employer. A chapter on privacy reflects recent legislative initiatives at the state level, and an analysis of electronic intrusions by the employer. Professors Estreicher and Harper both served as Reporters for the Restatement on Employment Law and Zachary D. Fasman adds 50 years of practical experience in major law firms.Cases are accompanied by explanatory notes and questions for further discussion. A separate Statutory Supplement provides primary source material for use with this book.https://scholarship.law.bu.edu/books/1325/thumbnail.jp
Stress Testing Governance
Get PDFIn their efforts to guard against the world’s greatest threats, administrative agencies and businesses have in recent years increasingly used stress tests. Stress tests simulate doomsday scenarios to ensure that the organization is prepared to respond. For example, agencies role-played a deadly pandemic spreading from China to the United States the year before COVID-19, acted out responses to a hypothetical hurricane striking New Orleans months before Hurricane Katrina devastated the city, and required banks to model their ability to withstand a recession prior to the economic downturn of 2020. But too often these exercises have failed to significantly improve readiness for the subsequent crises. This Article shows that stress tests are used more widely than is commonly assumed, reaching well beyond financial regulation. It then argues that administrative stress tests should be seen as potentially powerful tools for administrative governance, but ones that suffer from significant shortcomings as currently deployed. Most notably, stress tests lack adequate transparency, oversight, and imagination. Also, they are too often voluntary for businesses and agencies whose performance failures could have great societal ramifications. By depriving stakeholders of crucial information about organizational readiness, these shortcomings weaken the nation’s ability to prevent and prepare for disasters. Preparing for disasters will only become more important as technologies transform everything from stock trading to elections and climate change creates more volatile weather. With improved design and wider deployment, stress tests have the potential to become a central tool for public and private accountability in an era of escalating societal risks
Review of Daniel Webster and the Unfinished Constitution by Peter Charles Hoffer
No full textHoffer’s latest book provides a kind of constitutional biography of Daniel Webster, a prominent American politician of the first half of the nineteenth century, famed for his oratory. Hoffer focuses on Webster’s role as a leader of the Supreme Court bar, arguing that Webster’s legal advocacy generated a coherent and influential constitutional jurisprudence. He suggests, in effect, that Webster was often the brains behind Chief Justice John Marshall’s campaign to establish a Federalist interpretation of the Constitution, one that could constrain the movements for radical democracy and states’ rights from the 1810s to the 1830s
Privacy Pretexts
Get PDFData privacy’s ethos lies in protecting the individual from institutions. Increasingly, however, institutions are deploying privacy arguments in ways that harm individuals. Platforms like Amazon, Facebook, and Google wall off information from competitors in the name of privacy. Financial institutions under investigation justify withholding files from the Consumer Financial Protection Bureau by saying they must protect sensitive customer data. In these and other ways, the private sector is exploiting privacy to avoid competition and accountability. This Article highlights the breadth of privacy pretexts and uncovers their moral structure. Like most pretexts, there is an element of truth to the claims. But left unchallenged, they will pave a path contrary to privacy’s ethos by blocking individuals’ data allies—the digital helpers, competitors, and regulators who need access to personal data to advance people’s interests. Addressing this move requires recognizing and overcoming deep tensions in the field of privacy. Although data privacy’s roots are in guarding against access, its future depends on promoting allied access
Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing Armies of Compassion 2.0?
Get PDFFulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination. It highlights how, in doing so, they enlisted or rejected analogies between race and sexual orientation discrimination—and between objections to interracial marriage and same-sex marriage—that were powerful, pervasive, and contested in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission but scarcely featured in Roberts’ Fulton opinion