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Emergent Medical Data: Health Information Inferred by Artificial Intelligence
Get PDFArtificial intelligence (AI) can infer health data from people’s behavior even when their behavior has no apparent connection to their health. AI can monitor one’s location to track the spread of infectious disease, scrutinize retail purchases to identify pregnant customers, and analyze social media to predict who might attempt suicide. These feats are possible because, in modern societies, people continuously interact with internet-enabled software and devices. Smartphones, wearables, and online platforms monitor people’s actions and produce digital traces, the electronic remnants of their behavior.
In their raw form, digital traces might not be very interesting or useful; one’s location, retail purchases, and internet browsing habits are relatively mundane data points. However, AI can enhance the value of digital traces by transforming them into something more useful—emergent medical data (EMD). EMD is health information inferred by artificial intelligence from otherwise trivial digital traces.
This Article describes how EMD-based profiling is increasingly promoted as a solution to public health crises such as the COVID-19 pandemic, gun violence, and the opioid crisis. However, there is little evidence to show that EMD-based profiling works. Even worse, it can cause significant harm, and current privacy and data protection laws contain loopholes that allow public and private entities to mine EMD without people’s knowledge or consent.
After describing the risks and benefits of EMD mining and profiling, the Article proposes six different ways of conceptualizing these practices. It concludes with preliminary recommendations for effective regulation. Potential options include banning or restricting the collection of digital traces, regulating EMD mining algorithms, and restricting how EMD can be used once it is produced
Reimagining American Policing
Get PDFCurrent efforts at police reform focus on heightening the legal accountability of police officers when they engage in questionable behavior. While valuable, such reforms do not address the underlying problems in police organizations that lead to problems with the use of force. This paper highlights the desirability of shifting from a warrior culture, one built around gaining compliance through the threat or use of force, to a guardian- or service-oriented culture, one focused on gaining acceptance by building trust and confidence among people in the community. Beyond changing the dynamics of authority in police-civilian encounters, this new model of policing promotes a climate of reassurance within communities that promotes their social, economic, and political vitality. Instead of focusing on harm reduction via crime control, the police can have a positive role in helping communities develop their way out of crime. Taking up that role requires the police to move from a harm reduction model to a model based upon creating and sustaining public trust
Data as Public Goods or Private Properties?: A Way Out of Conflict Between Data Protection and Free Speech
Get PDFIn this Article, I will review the origins of data protection laws and reestablish the concept of “data surveillance” as the primary evil that data protection laws should try to abate. From this review, I discover a transnational principle that strong data protection laws are must-haves for all jurisdictions wishing to protect privacy for their people, but that data protection laws should not be applied to data that have been made publicly available through legitimate process. I then find legislative examples embodying such principle. Next, I will look at “scientific research” exemptions from data subjects’ control on pseudonymized data, and using GDPR’s exemption as an example, will demonstrate that ownership-like control by data subjects is not absolute. Finally, I will examine the possibility and morality of data socialism whereby data (including personal data) are regulated as public goods or infrastructure like scenery, sunlight, air, etc., and whereby data silos are replaced by a data commons for the benefit of all. “Data socialism” is proposed despite its negative connotation among contemporaries intentionally in order to highlight the libertarian pitfalls of the mechanistic application of data protection law
Misguided at Best, Malevolent at Worst: The International Impact of United States Policy on Reproductive Rights
Get PDFThis Note discusses the effect of U.S. foreign policies on the reproductive rights of women in developing countries. Many international human rights treaties and their progeny have consistently found that reproductive rights are intertwined with basic human rights, such as the right to privacy, the right to health, the right to education, and the right to start a family. Despite considering itself a superpower among all other countries, U.S. policies like the Helms Amendment and the Mexico City Policy fail to adhere to these basic international human rights standards. At the same time the United States recognized the constitutional right of its female citizens to have an abortion, it began restricting that right for women in countries that are dependent on the United States for health aid. U.S. foreign policies go far beyond abortion and affect almost all health services, even those tangentially related to reproductive health services. These policies reinforce the notion that women, especially non-American and impoverished women, should be delegated to a second-class version of citizenship because of their anatomy. In order to prevent this continuing and harmful discrimination against women in developing countries, the United States must immediately repeal these foreign policies, prevent any future iterations from being enacted, and ensure that all subsequent policies are consistent with international human rights standards
What the Access to Justice Crisis Means for Legal Education
Get PDFDespite enormous social, legal, and technological shifts in the last century, the structure of legal education has remained largely unchanged. Part of the reason so little change has occurred is that the current model mostly “works”; it produces a professional class of lawyers to populate the ranks of law firms and government entities. At the same time, for decades, legal education researchers have considered it practically axiomatic that law school has room for improvement.
In this Article, I argue that the access to justice crisis—a deficit of just resolutions to justiciable civil justice problems for everyday people—compels an overdue examination of legal education’s scope and purpose. If we assume that lawyers should have a major role in solving the access to justice crisis, as opposed to simply meeting individual legal needs, law schools must prepare lawyers to serve this role. I point to three categories of improvement that centering access to justice would necessitate: teaching a greater versatility of thinking and problem-solving, imparting a broader understanding of the ecosystem of justiciable problems and lawyers’ place in it, and structuring law school to impart the cognitive cornerstones needed for successful legal practice.
Placing access to justice at the center of legal education would strengthen, not supplant, the traditional model. In addition to equipping lawyers to address everyday Americans’ justice problems, this Article’s proposals would make the legal profession nimbler and more resilient to social, economic, and technological changes, and help overcome some of the profession’s most intractable problems
Investing in Alternatives: Three Logics of Criminal System Replacement
Get PDFWhat logics underlie the call to “defund the police,” and how do those logics matter in policy debate? In the wake of widespread protests after the deaths of George Floyd, Breonna Taylor, and other victims of police violence during the summer of 2020, the Black Lives Matter movement’s call to “defund the police” captured the national imagination. Several municipal governments promised to cut funding and contracts for their respective police departments, with mixed results. Because we expect police defunding and reinvestment to remain a central movement demand, this Article explores the demand’s discursive and normative terrain. It does so by describing and critically engaging three logics of criminal system alternatives that we have observed in activists’ demands and organizing efforts. Specifically, we theorize investments in social welfare, safety production, and racial reparation as deeply connected but distinct logics that might guide decisions about where and how money should be spent as part of defund initiatives, and we discuss some implications of each for transformational change within and beyond policing
American Constitutionalism; Volume I: Structures of Government
Get PDFhttps://scholarship.law.uci.edu/celebration_of_books_2022-2023_book-covers/1010/thumbnail.jp
Judicial Administration
Get PDF“Presidential administration” has been discussed for the last twenty years. However, scholars have not considered whether courts are doing the same thing. Like presidents, courts may oversee the quality of administrative action under authority granted by the Constitution and legislation. And also, like presidents, courts make policy decisions in lieu of the agency that has been delegated policymaking power.
This Article draws on case law and legal scholarship, as well as work from public administration and political science, to construct a paradigm of “judicial administration.” More specifically, it offers a history of and traces the tension between the “overseer” and “decider” approaches to judicial administration. In addition, it explains the implications of these approaches for the constitutionality and efficacy of judicial review today.
First, this Article considers judicial administration as accomplished through the reinforcement of administrative procedure. These efforts were criticized as judicial policymaking by formalists. However, as this Article notes, these decisions focus on reconciling administrative action with constitutional, technical, and rule-of-law norms and are thus rooted in overseer impulses. In other words, the decider dimensions of even the most intrusive judicial review of agency process have been overstated.
Second, and in contrast, this Article notes that the recent call to overturn Chevron constitutes uncritical advocacy for the decider approach to the judicial administration of statutory directives. In the past, courts have limited their role in the administration of legislation to that of overseer. However, today’s formalists seek to implement de novo review wholesale. This effort is, at its core, a push for courts to decide policy in lieu of the agencies to which Congress has delegated policymaking power or to which policymaking power belongs as a matter of executive authority.
This may not trouble functionalists much. But it should trouble the very formalists who denounce Chevron. First, this evinces an inconsistency in their position, given that many have condemned what they identify as judicial policymaking in administrative process. More broadly, as in presidential administration, the decider approach to judicial administration runs the risk of treading on the legislature’s authority to make the law. To the extent this is the case, calls to dismantle the administrative state and instate the judiciary in its place are focused on reimbursing the wrong branch of government.
For those interested in judicial intervention as a means of regulating the administrative state, including the exercise of presidential power, the overseer model of judicial administration is less likely to offend a formal conception of the separation of powers. Furthermore, longstanding paradigms of judiciary as overseer confront the pressing issues—namely, the denigration of administrative due process and corrosion of expertise in service of the President’s agenda—resulting from today’s unsupervised executive branch