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Grading Machines: Can AI Exam-Grading Replace Law Professors?
No full textIn the past few years, large language models (LLMs) have achieved significant technical advances, such that legal-advocacy organizations are increasingly adopting them as complements to—or substitutes for—lawyers and other human experts. Several studies have examined LLMs\u27 performance in taking law school exams, finding mixed results. Yet there have been no published studies systematically analyzing LLMs\u27 competence at one of law professors\u27 chief responsibilities: grading law school exams. This paper presents results of an analysis of how LLMs perform in evaluating student responses to legal analysis questions of the kind typically administered in law school exams. The underlying data come from exams in four subjects administered at top-30 U.S. law schools. Unlike some projects in computer or data science, our goal is not to design a new LLM that minimizes error or maximizes agreement with human graders. Rather, we seek to determine whether existing models—which can be straightforwardly applied by most professors and students—are already suitable for the task of law exam evaluation. We find that, when provided with a detailed rubric, the LLM grades correlate with the human grader at Pearson correlation coefficients of up to 0.93. Our findings suggest that, even if they do not fully replace humans in the near future, LLMs could soon be put to valuable tasks by law school professors, such as reviewing and validating professor grading, providing substantive feedback on ungraded midterms, and providing students feedback on self-administered practice exams
Taking Scale Seriously in Technology Law
Full text linkIssues of scale—the relationship between the amount of an activity and its associated costs and benefits—permeate discussions around law and technologies. Indeed, it’s not much of an exaggeration to say that scale is the reason for most technology regulation.
But it’s not always clear how lawmakers and judges conceptualize “scale” when approaching questions around automated technologies. Scale is often used intuitively, just to mean “more.” But scale is not always just about more—scale can introduce new harms and benefits along different dimensions, not simply costs or efficiencies of greater magnitude.
In this Article, we argue for a more sustained interrogation of the role of scale in law, one that is more sensitive to the distinction between what we describe as “scale is more” and “scale is different.” When lawmakers and judges fail to properly categorize the role of scale in a particular context, they risk ignoring or misidentifying harms, misdiagnosing the causes of those harms, and potentially focusing on the wrong policy tools, and even the wrong actors, in proposing solutions
Mitigating Firearm Suicide with Trusted Messengers in Health Care
No full textVoluntary firearm safety actions avoid Second Amendment scrutiny, but rely on individuals recognizing their own risks. This could be aided by a network of healthcare professionals that have received proper training and information about all available tools to help prevent firearm-related suicide attempts, and combining the trust of clinicians and firearm owners could represent an opportunity to inform and educate in a manner that will engage patients
Taking Revolution Seriously
No full textEvery so often, a prison strike will make national news, as it did in 2014, 2016, and 2018. 1 The media will focus on the atrocious conditions of confinement; the unchecked violence; the wages numerated in pennies; and the state’s indifference to the strikers’ modest demands for food, medical care, and human contact.
Orisanmi Burton’s2 book, Tip of the Spear: Black Radicalism, Prison Repression, and the Long Attica Revolt, urges us to process such reporting with a healthy dose of skepticism. What if prison rebellions were telling us something else, something even more important? What if they were revealing to us the portal to our collective liberation (p. 18)? Burton immerses his reader into the universe of prisoners in revolt not only to document the horrors of incarceration, but more significantly to highlight their most basic, common demand: freedom. Burton’s innovative and challenging account reveals the abolitionist political analysis that emerged from the prison revolts that rocked New York State from 1970 to 1971. Focusing on rebellions by prisoners rather than texts by legal academics, Burton challenges legal scholarship’s mainstay methods of investigation and approaches to reform.
In particular, Burton reorients our understanding of the most implausible of prison revolts: Attica. From September 9 through September 13, 1971, people incarcerated at Attica prison in upstate New York wrested control from the Department of Corrections (pp. 8–9). The inmates first gained control at the intersection of Attica’s Cellblocks A and C after a security slip (pp. 84–86). Over two thousand of the men held captive poured into the central yard, known as Times Square (p. 86). In the revolt’s first few days, these men made demands and negotiated with the state, using the guards they took hostage for leverage (p. 28). For a moment, they existed in a parallel world in which prisoners possessed a semblance of self-determination.
Before the dramatic takeover of Attica, rebellions erupted in New York City jails and the Finger Lakes’ Auburn prison. Burton begins to chart this neglected prehistory in the borough of Queens, at the Long Island City branch of the Queens House of Detention (p. 23). He continues the narrative at the Manhattan House of Detention, colloquially known as the “Tombs” (p. 24). Each of these rebellions lasted only a few days or a few hours; but in that short time, the people inside controlled the sites of their incarceration, and city and state officials at least pretended to listen to their demands (pp. 40–42). The world watched as the rebels turned the dominant social order on its head.
In Burton’s view, attributing the motivations for Attica to the ritual degradations of prison life misses the mark. While those revolting demanded “human treatment,” Burton describes how they also yearned for more: “[They] burned for a form of freedom that the captors had no ability to grant . . . one that had to be invented” (p. 53). Although Burton does not explicate their full set of political aspirations, the uprising at Attica, like New York’s wave of prison revolts, was a movement whereby even the most maligned citizens—those who perpetrated harm—could recapture some of their humanity.
Burton asks us to consider the rebels’ militancy in strategic terms (p. 83). Through revolt, Burton contends, the rebels proposed a vision for political community that did not rely on confinement to guarantee security—a key tenet of abolitionist political philosophy (p. 14). Burton supports his claim with interviews of the revolts’ participants. His book reflects hundreds of hours of conversations with former rebels that reveal their motivations and their distinct trajectories as political leaders. From this painstaking work, Burton has produced a layered account of radical prison organizing. His account draws on conversations with rebels since released; their correspondence; interviews with their supporters outside; and fifty-year-old social movement ephemera, like pamphlets and communiqués from underground organizations
Opening Brief for Plaintiff-Appellant Jacob Julick
No full textFor ten days in the middle of winter, officers at the Kentucky State Penitentiary (KSP) confined Jacob Julick in freezing cells, dressed only in paper boxers, and without access to hygiene products, a shower, cleaning products, bedding, or shoes. The reason? Mistaken retribution in response to a recent assault on an officer in which Julick was not involved.
When Julick reported experiencing suicidal thoughts, Defendant Officer Jason Denny mocked him, telling him to “kill [him]self and do them the favor.” Shortly after, Julick was moved from his first solitary cell to a strip cage where he was handcuffed, shackled, and placed in a kneeling stress position, still wearing nothing but paper boxers. With no legitimate justification, Defendant Officer Dylan Bond pepper-sprayed Julick’s back and neck three times and prepared to tase Julick while standing safely on the other side of the strip cage’s locked grate. Officer Devin Neilson mocked the practically naked, freezing Julick by opening the door to the outside and asking if he wanted “fresh air.”
After this force incident, the conditions of Julick’s new cell were worse than those that initially triggered Julick’s suicidal thoughts. Officers moved Julick from the strip cage to this new, worse solitary cell caked in feces and dirt. He was forced to lie face down, with only paper boxers, barefoot and shivering, on the feces-caked floor during the next eight daily searches. Defendant Unit Administrator Sasha Primozich Villasenor later told Julick he was being “treated like this under the Warden Scott Jordan’s firm orders.”
The district court concluded that Bond’s use of pepper spray against a restrained, confined, incarcerated person was not “the sort of force repugnant to the conscience of mankind.” The court further deemed Julick’s “exceedingly unpleasant” conditions of confinement constitutionally insignificant. Yet the record reflects the sustained denial of basic human needs—warmth, hygiene, and freedom from abusive force. Under the Eighth Amendment, no safety or penological rationale can justify holding anyone for ten consecutive days in the cold, stripped nearly naked, and also forcing anyone for eight consecutive days to live among human waste. And, in any case, a reasonable jury could conclude that Defendants treated Julick in this manner with malicious intentions. These conditions, coupled with the gratuitous use of chemical weapons and ridicule, amount to precisely the wanton infliction of pain and denial of the modern standards of human decency that the Eighth Amendment forbids.
This Court should, therefore, reverse the district court’s grant of summary judgment to Defendants and remand for trial
The Major Questions Doctrine, Post-Chevron?: Skidmore, Loper-Bright, and a Good-Faith Emergency Question Doctrine
No full textWhen my students and colleagues fretted about Chevron\u27s fate, I have said, Worry less. Skid-more. Just as old Skidmore weight or respect returns post-Chevron, the new (and newer) major questions doctrine(s) survive as a reason to give less weight to an agency interpretation. This symposium essay suggests a special role for the post-Chevron major questions doctrine: an Emergency Questions Doctrine. When the executive asserts an emergency power, when the statutory basis is open-ended (often for very good reasons), majorness means less deference to simple and fast textualism, and more time for courts to engage in deeper purposivism to make sure those emergency powers are being used as intended, and abused as a pretext. This essay focuses on the Biden student debt waiver and its pretextual reliance on late-Covid as an emergency, and Biden v. Nebraska as a case study. This short symposium essay first summarizes two less-obvious practical justifications for Chevron deference that survive post-Chevron and explain why Skidmore weight will function as frequent deference in non-major cases: a) judicial triage to manage a huge administrative docket, and b) comparative expertise in non-major cases vs. major publicly-salient cases. This essay then offers three cheers for the major questions doctrine, all of which apply in major emergencies cases: 1) no deference when the case is so major that it diminishes the justifications of triage and relative agency expertise; 2) emphasizes purpose over text, 1 for similar reasons: majorness is a reason to go beyond open-ended text and do extra work to examine purposes and make sure the emergency power is consistent with congressional intent; 3) Congress does not hide elephants in mouseholes. Unfortunately, the Roberts Court has added a big fourth questions about Major Questions, a judicial overreach in the shadow of the non-delegation doctrine. The Roberts Court has turned the major questions doctrine into a problematic substantive canon of no more elephant holes, only specified elephants, a rule that Congress must specify the policy, and cannot purposely write an open-ended statute to delegate flexibility to agencies. The majority opinion in Biden v. Nebraska could and should have relied on the first three steps to invalidate the student debt waiver as a pretextual abuse of emergency powers. Unfortunately, it reached for the fourth step, a potentially dangerous limitation on necessary flexibility in the face of emergencies
A Necessary and Proper Answer to the All-or-Nothing Removal Debate
No full textWe sincerely appreciated Richard Re’s balanced reading of the historical debate over a presidential removal power and independent agencies (“Does History Defeat Removal Doctrine?”). He raises a series of important questions about what appears to be an all-or-nothing polarized debate. We hope we can address some of those questions with new historical analysis and a balanced originalist path forward.
With Trump v. Slaughter scheduled for oral arguments on Monday, Dec. 8th, Re’s essay is worth re-reading in its entirety. He rightly concluded: “It would be unfortunate if the Court embraced an absolute removal power based on a mistaken belief that the only historically available alternative is no removal power at all.” He wisely added: “Because ambiguous history invites a wider array of considerations, it can also create common ground and nuance.”
With that invitation in mind, we thought we would share our recent essay “Presidential Removal as Article I, Not Article II.” It offers common ground and a balanced originalist answer recognizing that a congressional power and meaningful limits on that power come from the same clause: Article I’s Necessary and Proper Clause
Genocidal Accusation
No full textTo accuse of genocide — what does it mean? Genocidal accusation is ubiquitous today, evident more in the public square than in any courtroom. At first glance, such accusation seemingly relies on a central assumption: genocidal accusation is critical to preventing atrocity. This Article argues that this widespread assumption is incomplete, obscuring genocidal accusation’s dual nature. In fact, genocidal accusation encompasses not only laudable atrocity prevention (for example, the Rwandan genocide), but also problematic punitive, carceral discourse that brands the “other” as morally polluted (such as President Putin’s Ukraine invasion). It is thus challenging to evaluate such accusation in the abstract — the best way to gauge a genocidal accusation is within broader mechanisms of genocidal justice, honoring the twin imperatives of atrocity prevention and mitigation of escalatory punitiveness. Genocide is the darkest of all human acts. Thus, we should never hesitate to identify it — but likewise never invoke it lightly. An Epilogue — written by a professor and former student — first centers victims, drawing from the experiences of two families affected by genocide, atrocity, and armed conflict
Challenging the Law
No full textFrédéric Mégret’s engaging contribution, A Look Back at The Women’s Hague Peace Conference: What Contribution To International Law Today?, exposes a legal duality. On one hand, the legalist perspective: law is a closed system. From this perspective, law is objective, hard, universal, and bounded. On the other hand, the sociocultural perspective: law is a human practice. From this perspective, law is subjective, organic, particular, and porous. This Essay reads Mégret’s analysis of the 1915 International Congress of Women in The Hague as a “sociocultural challenge,” disrupting the legalist perspective on international law, war, and peace during World War I. This Essay lauds this women’s peace movement through this lens, and then argues that such sociocultural challenge must continue to be fostered by embodied legal and non-legal actors in the world, as well as by theorists with sociocultural theoretical commitments
Policing Gender: The Interest Convergence of Women\u27s and Transgender Rights
No full textThe social, political, and legal landscape has seen a resurgence of gender fundamentalism, seeking to reinforce archaic notions of what it means to be a woman. Social media movements run in tandem with this resurgence of gender fundamentalism. For instance, the “tradwife” phenomenon that romanticizes a domestic, subservient role for women.1 Alabama Senator Katie Britt most infamously reflected the convergence of these trends when she delivered her response to the State of the Union from a kitchen table and proclaimed that her message was “a direct appeal” to her “fellow moms.”2 Meanwhile, executive orders and state laws have exponentially increased efforts to narrowly define sex and gender to exclude transgender, nonbinary, and intersex people, emphasizing the importance of women’s ability to reproduce.3 Yet, the pervasive effort to define and redefine what it means to be a “real woman” contradicts the asserted ease of a gender binary based solely on “biological sex.”
Anti-transgender laws seek to enforce the gender binary based on the illusion that all people can be easily and objectively categorized as male or female.4 This allows proponents to assert that anti-trans restrictions are merely protections for cisgender women from dangers posed to them by transgender women.5 These laws, however, ignore the unavoidable truth that there are millions of people born who defy the scientifically inaccurate claim that there is one universal truth for each sex.6 More importantly, these laws have enabled enforcement of gender norms that seek to codify the qualities and characteristics that all women should share. Far from protecting cisgender women, these laws have facilitated increased examination, surveillance, and inspection into who rightfully qualifies as a woman.
For example, cisgender women who outperform their contemporaries in competition or perhaps do not conform to the right feminine norms have been attacked, vilified, and ostracized.7 Indeed, these persistent efforts to limit the scope of womanhood reveal that it is not simply a biological category but rather a sociopolitical construct that is carefully crafted and enforced to maintain the gender hierarchy, exercise paternalistic control over bodily autonomy, and further disenfranchise marginalized groups. Controlling the rights, liberties, and bodies of women under the guise of protecting those very same women is nothing new.8 Yet, by shrouding anti-trans laws under the fallacy that they are meant as a benefit to “real” women, these governments have been able to garner alarming levels of support from cisgender women.9
This Essay first observes in Part I how the increasing rhetoric around gender roles and the gender binary dovetail to surreptitiously ensconce the gender hierarchy. Part II examines how the need to enforce anti-trans laws paves the way for heightened surveillance of women. This leads to a discussion in Part III of how women who support and defend anti-trans laws are likely advocating against their own interests and could be helping to justify expanding transgender surveillance to include reproductive data as a means to avoid more intimate inspections