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Why are so many political leaders unethical and what can we do about it?
Get PDFRepublicans wonder how New Yorkers could have ever supported disgraced New York Gov. Andrew Cuomo, amazed that his polling among state voters remained so high throughout almost the entirety of the scandals of 2020-21. Meanwhile, Democrats are flabbergasted at the strong levels of support former President Donald Trump continues to receive from conservative voters, despite his numerous moral miscues. The rise and fall of these politicians (as well as that of countless others) offers fascinating evidence on the ethics of our elected officials, and other things that don\u27t exist
Aldiama Anthony reflects on the article, Institutional Economics and Chock-Full Employment by Charles J. Whalen
Get PDFThe “Right to Work” movement is a well-known guiding concept in the United States that affirms every American’s right to work for a living without being compelled to belong to a union and pay fees. However, the term, the right to work, originally referred to a progressive call for the right to employment. A recent study conducted by Charles J. Whalen, Baldy Center Research Fellow, examines the calls for a job guarantee and then explains the need to reclaim the “right to work” as a cornerstone of progressive capitalism. This blog contains the critical takeaway points from Whelan\u27s article, “Institutional Economics and Chock-Full Employment: Reclaiming the “Right to Work” as a Cornerstone of Progressive Capitalism.
David Herzberg discusses repeated waves of addiction to pharmaceutical opioids and other medicines in the U.S.
No full textEpisode 20 features David Herzberg, PhD, Associate Professor, Department of History, University at Buffalo. Herzberg discusses repeated waves of addiction to pharmaceutical opioids and other medicines in the 20th and 21st century U.S. Among other things, he examines how the predominantly white consumers labeled as “patients” were understood as innocent victims when they became addicted, while consumers who became addicted outside of medical channels were portrayed as dangerous criminals. Herzberg is the author of a history of addictive pharmaceuticals titled White Market Drugs: Big Pharma and the Hidden History of Addiction, and co-author of a forthcoming book with Helena Hansen and Jules Netherland about how the politics of whiteness has shaped the history of opioids, opioid addiction, and drug policy in the United States
AI, on the Law of the Elephant: Toward Understanding Artificial Intelligence
Get PDFMachine learning and other artificial intelligence (AI) systems are changing our world in profound, exponentially rapid, and likely irreversible ways.3 Although AI may be harnessed for great good, it is capable of and is doing great harm at scale to people, communities, societies, and democratic institutions. The dearth of AI governance leaves unchecked AI’s potentially existential risks. Whether sounding urgent alarm or merely jumping on the bandwagon, law scholars, law students, and lawyers at bar are contributing volumes of AI policy and legislative proposals, commentaries, doctrinal theories, and calls to corporate and international organizations for ethical AI leadership. Unfortunately, erroneous, incomplete, and overly simplistic treatments of AI technology undermine the utility of a significant portion of that literature. Moreover, many of those treatments are piecemeal, and those gaps produce barriers to the proper legal understanding of AI.
Profound concerns exist about AI and the actual and potential crises of societal, democratic, and individual harm that it causes or may cause in future. On the whole, the legal community is not currently equal to the task of addressing those concerns, lacking sufficient AI knowledge and technological competence, despite ethical mandates for diligence and competence. As a result, law and policy debates and subsequent actions may be fundamentally flawed or produce devastating unintended consequences because they relied upon erroneous, uninformed, or misconceived understandings of AI technologies, inputs, and processes. Like the elephant in the ancient Jain parable, the wise ones may conceive of only a fraction of the AI creature and some more or less blindly.
Now more than ever, lawyers need to be able to see around critically important corners. The general lack of understanding about AI technology robs the legal profession of that foresight. This state of affairs also raises significant ethical concerns. Worse, it undermines lawyers’ power, authority, and legitimacy to bring forward truly valid, meaningful ideas and solutions to prevent AI from becoming humanity’s apex predator.
This Article responds with several descriptive and theoretical contributions. As to its descriptive contributions, it aims to correct and augment the record about AI, particularly machine learning and its underlying technologies and processes. It endeavors to present a concisely and accessibly stated foundational, but sufficiently comprehensive, single-source explanation. The Article draws extensively from the scientific and technical literatures and undertakes an important interdisciplinary translational process by which to map the AI technical lexicon to legal terms of art and constructions in patent and other cases. Because their understanding is foundational, the Article drills down on three principal AI inputs: data, including data curation; statistical models; and algorithms. It then engages in illustrative issue-spotting within these AI factual frames, sketching out some of the many legal implications associated with those vital understandings.
Toward its theoretical contributions, the Article presents two conceptual sortings of AI and introduces a systems- and process-engineering-inspired taxonomy of AI. First, it categorizes AI by the degree of human involvement in and, conversely, the degree of AI autonomy in AI-mediated decision-making. Second, it conceptualizes AI as being static or dynamic. Those distinctions are vital to AI’s potential for harm, meaningful accountability, and, ultimately, the proper prioritization of AI governance efforts. Third, the Article briefly introduces a taxonomy that conceptualizes AI as a human-machine enterprise made up of series of processes. By perceiving “the whole of the AI elephant,” the role of human decision-making and its limits may be understood, and the human-machine enterprise that is AI and its constituent processes may be deconstructed, comprehended, and framed for subsequent scholarship, doctrinal and procedural analyses, and law and policy developments. With these, the Article hopes to help inform and empower lawyers to improve the security, justness, and well-being of people in the increasingly algorithmic world
Judicial Populism
Get PDFPopulism has taken center stage in discussions of contemporary politics. This Article details a judicial populism that resonates with political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists there are clear, correct answers to complex, debatable problems, treating reasonable disagreement as illegitimate. It disparages the institutions that mediate divergent interests in a republican democracy, claiming special access to the law’s clear objective meaning. And it imagines a pure, unified people locked in battle with a subversive elite.
While commentators have recognized political populism as fundamentally undemocratic, judicial populism has largely escaped recognition and even become entrenched in legal thought. We show how textualism, originalism, and unitary executive theory share political populism’s anti-pluralist, anti-institutional, Manichean tendencies. We elucidate judicial populism’s rhetorical tropes and stock stories, explaining how their frequently syllogistic format suggests indisputable truth even when their premises are faulty and conclusions unsupported. And we detail how judicial populism claims the mantle of the passive virtue tradition while undermining its aims.
Judicial populism’s rhetorical success has put proponents of other approaches on the defensive. Revealing its inner workings, we argue for the opposite result. Judicial populist rhetoric contradicts and undermines the commitments of republican democracy—a presumed pluralism of views and interests mediated through institutions that allow for ongoing negotiation about both means and ends among people who both compete and collaborate. Rather than ceding judicial populism the moral high ground, we should pursue a legal theory fit for a republican democracy. We end by outlining what such democratic judging entails
Edward A. Purcell, Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon
Get PDFThe Ostensible (and, at Times, Actual) Virtue of Deference
Get PDFIn Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it condemns) and judicial understandings of expertise as a “professional technology” (which it applauds). This conceptual framework fails to capture a simple and well-grounded intuition that reformers should accommodate: while it may be an error for judges to treat expertise as an inherent virtue, it may in certain contexts be virtuous of them to defer to expertise
An Ethical Gap in Agency Adjudication
Get PDFThere is an ongoing crisis of confidence in American government. Accusations of incompetence and political self-dealing dominate news cycles as public institutions seek to combat—with varying degrees of success—the public health and economic consequences of a global pandemic. Highlighted in this struggle is the larger issue of the importance of integrity to the efficacy and legitimacy of administrative government. This is especially true for agency adjudication, as it is the form of agency action that most directly impacts individuals. Recusal—the process by which an adjudicator is removed, voluntarily or involuntarily, from a specific proceeding—is a time-honored way of protecting the agency adjudication. Yet the existing landscape of agency recusal standards exhibits gaps in coverage that potentially threaten the efficacy of, and public confidence in, that adjudication. This Article, which is based on a report for the Administrative Conference of the United States, is the first to identify the full range of recusal standards that impact agency adjudicators and to evaluate their effectiveness in light of recusal’s dual purposes of promoting fairness to litigants and public confidence in the integrity of the proceedings. It concludes that the best way to fill the ethical gap in agency adjudication is through agency-specific recusal regulations that seek to preserve both the reliability and effectiveness of agency adjudication
Protecting Our Spaces of Memory: Rediscovering the Seneca Nation Settlement Act Through Archives
Get PDFArchival spaces act as collective memory, and the need to preserve and protect those spaces is critical for understanding historical events. To illustrate the idea of archival space as a space of memory, this article looks at the Seneca Nation Settlement Act, which is more fully understood through the use and interpretation of archival materials
