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Regulatory Body Shops
Get PDFAgencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. Despite perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, capacity, and more, stemming from the fact that contractors are in privity with the government, not the public. This scholarship does not take up the implications of service contracting for rulemaking, the primary mode of executive branch lawmaking, nor does it delineate between types of contracting arrangements, which vary dramatically.
This Article takes variation in rulemaking contracting arrangements seriously. We define three types: ministerial contractors, who perform administrative work; expertise contractors, who provide discrete scientific and technical inputs; and regulatory body shops, which are embedded into agencies and function like staff. We argue that while the former two arrangements pose minimal risks to an agency, regulatory body shops are a different story. Not only do they open the door to conflicts of interest that are not adequately addressed under current law, they also threaten the quality of agency reasoning and have the potential to hollow out an agency’s rulemaking apparatus over the long run. Reliance on regulatory body shops has the potential to put an agency’s rules in legal jeopardy by violating the Administrative Procedure Act and diminishing an agency’s claim to Chevron deference. These various risks, which pose challenges for the quality of public decision-making, sit in tension with the reality that some agencies lack adequate resources to staff their rulemakings and turn to regulatory body shops as a pragmatic matter. The Article concludes with reforms to help agencies responsibly manage the risks posed by regulatory body shops
Unintentional Algorithmic Discrimination: How Artificial Intelligence Undermines Disparate Impact Jurisprudence
Get PDFArtificial intelligence holds the capacity to revolutionize the economy by capturing efficiencies. These benefits, ostensibly, should pass down to consumers, thereby benefitting the general public. But the immense complexity of AI systems is bound to introduce legal hurdles for plaintiffs and frustrate our disparate impact jurisprudence. Specifically, demonstrating causation and proffering a less discriminatory alternative are herculean tasks for a plaintiff seeking to prove a disparate impact upon which legal relief may be granted. The courts have already begun to wrestle with these issues, primarily in the housing and employment sectors. With the rapid surge of AI systems, courts should expect further inquiry into how these programs interfere with our established antidiscrimination framework. This Note outlines how each step of a plaintiff’s successful disparate impact analysis is hindered by the opaque ways in which AI operates. This Note then proposes several policy reforms to mitigate these consequences
False Accuracy in Criminal Trials: The Limits and Costs of Cross Examination
Get PDFAccording to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an opportunity for in-person questioning suffices to ensure the reliability of testimony. Confidence in the value of demeanor evidence endures despite extensive social science on the garbled signals that nonverbal cues send. That misplaced trust can lead to the admission of problematic evidence that has not otherwise been substantively tested. Reliance on cross-examination also precludes development of broader potential meanings of defendants’ Sixth Amendment right to confront the government’s case, which could require access to the reports and resources necessary to conduct effective questioning. In addition, appellate courts often point to cross-examination when they decline to consider trial errors or to evaluate the deficiencies of defense counsel. This Essay challenges conventional wisdom about the purposes of cross-examination. It suggests that a clearer view of its role could lead to deeper evaluation of the reliability of testimony, broader challenges to prosecution evidence, and more complete review for error
Facial Recognition AI: Alaska Is an Ideal Forum for Introducing Regulation
Get PDFAs artificial intelligence becomes increasingly commonplace, we are all exposed to shockingly dystopian forms of surveillance. This Note details the unique danger of facial recognition technologies powered by artificial intelligence. First, this Note examines the rise of facial recognition technologies in both the public and the private sector. It illustrates this phenomenon by highlighting a few key players in both the development and implementation of facial recognition. Second, it proceeds by examining the current privacy landscape in Alaska. Alaska\u27s unique focus on privacy rights makes the State a promising forum for regulation. Finally, it provides possible statutory and judicial solutions to stop the spread of these technologies and secure the privacy rights of Alaskan citizens and visitors
Critical Wage Theory: Why Wage Justice Is Racial Justice
No full textIn this highly original and personal book, Ruben J. Garcia argues forcefully that we must center the minimum wage as a tool for fighting structural racism. Employing the lessons of critical race theory to show how low minimum wages and underenforcement of workplace laws have always been features of our racially stratified society, Garcia explains why we must follow the leadership of social movements by treating increases in minimum wage levels and enforcement as matters of racial justice. Offering solutions that would benefit all workers, especially the immigrants and people of color most often made victims of wage theft, Critical Wage Theory is essential reading for anyone who seeks a more just future for the working class.https://scholarship.law.duke.edu/justin_miller_awards_books/1001/thumbnail.jp
The Collective-Action Constitution
No full textThe United States Constitution was established primarily because of the widely recognized failures of its predecessor, the Articles of Confederation, to adequately address collective-action problems facing the states. These problems included funding the national government, regulating foreign and interstate commerce, and defending the nation from attack. Meeting such challenges required the states to cooperate or coordinate their behavior, but they often struggled to do so both inside and outside the Confederation Congress. By empowering Congress to solve collective-action problems, and by creating a national executive and judiciary to enforce federal law, the Constitution promised a substantially more effective federal government.
An important read for scholars, lawyers, judges, and students alike, Neil Siegel\u27s The Collective-Action Constitution addresses how the U.S. Constitution is, in a fundamental sense, the Collective-Action Constitution. Any faithful account of what the Constitution is for and how it should be interpreted must include the primary structural purpose of empowering the federal government to solve collective-action problems for the states and preventing them from causing such problems. This book offers a thorough examination of the collective-action principles animating the structure of the Constitution and how they should be applied to meet many of the most daunting challenges facing American society today.https://scholarship.law.duke.edu/justin_miller_awards_books/1008/thumbnail.jp
Specialist Directors
Get PDFWhat determines the effectiveness of corporate boards? Corporate legal scholars usually approach this question by focusing on directors’ incentives, such as counting how many directors are independent or whether the roles of the CEO and Chair are separated. Yet on the ground, the focus has been shifting to directors’ skill sets and experience. Investors, regulators, and courts are now pressuring companies to appoint directors with specific types of expertise. In response, more and more companies are adding what we term “specialist directors”: a DEI director, a climate director, a cyber director, and so on. These changes in board composition could reshape corporate governance and impact broader societal issues such as data privacy and environmental degradation. This Article examines the ongoing shift in board expertise and makes the following three contributions.
First, the Article presents evidence on the scope and magnitude of the changes in board expertise. We hand-collect and hand-code data from the proxy statements of S&P 500 (large cap) and S&P 600 (small cap) companies over the 2016–2022 period. We find that over the past few years companies have not only significantly increased their emphasis on expertise disclosure, but also added hundreds of directors with narrower, ESG-related expertise.
Second, the Article analyzes how these shifts in board expertise could affect corporate behavior, and whether they are likely to prove overall desirable from a societal perspective. It is intuitive to think of board expertise as an unalloyed good. But we merge insights from interviews with nomination committee members with insights from the literature on group decision-making, to highlight five realistic concerns arising from the current trend. The injection of new, narrow types of expertise could distort board Specialist Directors dynamics, create “authority bias,” overly increase the size of boards, hinder efforts to promote board diversity, and result in “board washing” whereby human capital disclosure camouflages the company’s actual behavior.
Finally, the Article generates concrete policy implications. For regulators, the main lessons concern rethinking the desirability of legal intervention and ensuring more credible and comparable expertise disclosure. For courts, the main lessons revolve around how to assess board behavior in oversight-duty litigation and what to consider when approving derivative settlements