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Biometrics and an AI Bill of Rights
Get PDFThis Article contends that an informed discussion on an AI Bill of Rights requires grappling with biometric data collection and its integration into emerging AI systems. Biometric AI systems serve a wide range of governmental purposes, including policing, border security and immigration enforcement, and biometric cyberintelligence and biometric-enabled warfare. These systems are increasingly categorized as high-risk when deployed in ways that may impact fundamental constitutional rights and human rights. There is growing recognition that high-risk biometric AI systems, such as facial recognition identification, can pose unprecedented challenges to criminal procedure rights. This Article concludes that a failure to recognize these challenges will lead to an underappreciation of the constitutional threats posed by emerging biometric AI systems and the need for an AI Bill of Rights
Abandoned and Derelict Vessels in the Commonwealth: How to Improve Virginia\u27s ADV Program
Get PDFVessels abandoned or lost by their owners can get stuck on a shoreline or in a marsh, aimlessly float adrift, or sink in a waterway. As the number of ADVs [abandoned and derelict vessels] increases, efforts to address them similarly intensify. Typically, state government agencies handle most ADVs, and their approaches to ADV control and removal vary widely across jurisdictions. Virginia faces an increasing number of ADVs and can learn from other states to improve its approach. This paper examines the current Virginia ADV program and considers how it can be amended to make it more effective. It then identifies policies from other states’ ADV programs and recommends how some of these policies can be implemented in Virginia to improve its ADV program.
This abstract has been adapted from the author\u27s introduction
Fundamental Criminal Procedure (2022 edition)
Get PDFFundamental Criminal Procedure explores American criminal procedure in a format ultimately destined for electronic publication. Because many students devote a great deal of their class time to taking notes, often at the expense of creative analysis, the text is intended to supply all of the necessary “black letter law” needed for mastery of the subject. The materials are, however, far more than a “study aid.” They emphasize where appropriate the crucial philosophical and policy questions and issues inherent in the subject. Periodic “Review Questions” require understanding application of academic material in a pragmatic context. “Legal Briefs” require the student to prepare to brief legislators on a wide variety of critical public policy questions inherent in criminal procedure. This text began and largely remains in outline format for ease of student use. As time permits, I am transitioning the text to a slightly more traditional form. Contrary to the Bluebook, I mix memorandum and formal writing citation style for purposes of easy reading.
Part One of the text deals with search and seizure, interrogations, eye-witness identification, and the right to counsel. Parts Two through Five deal with the remaining topics, the process by which a person is arrested, charged, adjudicated, and sanctioned and the aftermath. Accordingly, Fundamental Criminal Procedure includes sentencing, appeal, and collateral relief.
This abstract has been taken from the author\u27s preface
Frontiers in Regulating Building Emissions: An Agenda for Cities
Get PDFRecent developments in Congress and the Supreme Court have highlighted the folly of relying solely on the federal government to contain global climate change. If the United States is to help rein in the climate crisis, state and local governments will need to accelerate their efforts to reduce greenhouse gas emissions. In many urban areas, where most Americans now live, the most important step that local governments can take to curtail these emissions is to reduce energy use in buildings. Recognizing this, a number of American cities have adopted building performance standards (“BPSs”) in recent years, which limit the annual amount of energy a building can use or emissions it can release. With an eye toward encouraging the proliferation of BPSs, this Article surveys the key decisions that a city must make in designing a BPS and argues that future laws must do more to integrate resilience goals. As the climate crisis accelerates, local lawmakers must develop policies that simultaneously reduce emissions and protect their constituencies from the climate impacts that we can no longer fend off
Title IX\u27s Trans Panic
Get PDFSport has long been a site of struggle over competing conceptions of social justice, with no cultural flashpoint more contested than gender. A key site of contention has been the meaning and application of Title IX. With June of 2022 marking the law’s fiftieth anniversary, Title IX has been lauded as the law that launched girls’ and women’s sports from the shadows to their present, more celebrated posture. As these anniversary tributes often emphasize, female athletic participation has soared to new heights in all levels of sports. But Title IX also houses tensions and dilemmas for gender justice that were baked into the law from the beginning. A pragmatic mix of feminisms make up the logic and rationales behind Title IX’s legal framework, some with the potential to transform conventionally conservative understandings of gender but others that reinforce the salience of those conventional categories along with their limitations. Title IX’s three-part test for equal athletic opportunity, for example, has made sports participation for girls a normal part of growing up, breaking down gender stereotypes and opening new paths to empowerment for girls and women. By prioritizing participation growth with separate teams for girls and women, instead of merely formally opening up all-male teams to female athletes, Title IX has dramatically increased both the numbers of girls and women who compete in sports and the stature of women’s athletics. But this model has always been rife with dilemmas and costs—as is any legal framework that attempts to address social inequality among groups that are differently situated. Even as the law created unprecedented opportunities for girls and women to compete in athletics, it participated in constructing the very categories and hierarchies that contribute to the second-class status of girls’ and women’s sports. This is because the model of sex-separate sports—and the assertion of a Title IX right to equal treatment to demand equality across separation—implicitly reifies and reinforces the significance of sex as a gatekeeper to opportunity.
This Article begins by discussing the spate of state legislative efforts to exclude transgender girls from girls’ sports and the feminist-sounding discourses behind them that have split the women’s sports community. The Article’s main contention is that, when viewed against the backdrop of a broader anti-transgender movement, these measures must be understood as a moral panic. The rhetoric behind the panic explicitly draws on the themes of girls’ empowerment and Title IX. The Article goes on to explain the key features of a moral panic and explores why such a panic has taken hold in sports.
The Article then steps back and analyzes Title IX’s rationales for sex separation in sports. This part argues that the trans exclusion movement has seized on one singular rationale for sex-separate athletics—biological sex difference—while ignoring the alternative, less problematic rationales Title IX has embraced. The argument for excluding trans girls distorts and overstates the biological case for sex separation, eliding the nuance and uncertainty surrounding the linkage between male biology and athletic performance. At the same time, the trans exclusion movement opportunistically overstates the extent to which Title IX locks in sex-separation as its governing framework. Title IX’s unstable and contested meaning for transgender inclusion in sex-separate school programs and facilities is also explored. In the wake of the Department of Education’s seesawing positions during the past three presidential administrations and the Supreme Court’s groundbreaking 2020 decision recognizing gender identity and sexual orientation discrimination as a species of sex discrimination, Title IX’s requirements for accommodating transgender athletes in sport are in flux and unsettled.
The final section of the Article identifies and elaborates three ways in which the trans exclusion movement undermines Title IX’s promise of gender equality in sport. First, it promotes a biological essentialism that is at odds with the logic of Title IX as a sex equality law. Policing the binary sex line in sport is a losing proposition for women’s athletic equality and is inherently rife with racial and gender bias. Second, these trans exclusion legislative efforts are based on a model of sport that places winning above the educational and participatory benefits of sport, again, in tension with the logic of Title IX. Finally, trans exclusion in sport ignores the lessons of intersectionality by centering a privileged group of cisgender women while further marginalizing women with already-marginalized identities. Race maps onto this dividing line because what culturally codes as unfeminine, in bodies and behaviors in girls’ and women’s sport, is implicitly racialized. The Article concludes with some thoughts on how transgender inclusion can be reconciled with Title IX’s baseline of sex separation in sports. However the particulars of transgender girls’ and women’s athletic participation are sorted out, supporters of girls’ and women’s sports should unite in resisting the anti-trans movement’s efforts to co-opt Title IX in service of a conservative and exclusionary gender agenda.
This abstract has been adapted from the author\u27s introduction
Misinformation and Elections
Get PDFSelections from the collection on elections and misinformation.
On display in the Wolf Law Library November 2022.
Curated by Michael Umberger and Devan Orr.https://scholarship.law.wm.edu/libdisplays/1001/thumbnail.jp
Debiasing Criminal Justice
Get PDFThe killing of George Floyd by police officers in Minnesota inspired a summer of protests in 2020, followed by a call for racial reckoning and a professed commitment to reform criminal justice. Many have condemned the “systemic racism” reflected in countless demographic measures. From killings of unarmed men by the police at the front end of the criminal justice system to incarceration rates at the back end, the statistics show stark disparities along racial lines. These disparities are held up as evidence of racial bias in the system.
Statements about racial bias may be intended as an indictment of a “racist” criminal justice system. Others have disputed these accusations and argued that the evidence does not support a finding of systemic racism in policing. Understandably, the law enforcement establishment may hear complaints about racial bias or other forms of bias as a condemnation. If racism is “systemic” then it necessarily implies that the people who operate the system are racists, or at least they act in a manner that has racist results. Others, including law enforcement leaders, counter that any systemic racism does not likely flow from conscious behavior intended to mistreat minorities but from unconscious biases. A burgeoning literature has addressed implicit racial bias, which refers to biased views that a person may harbor unconsciously. This research demonstrates that people can act in a racially biased way without realizing it. However, to ascribe disparities in the system to unconscious bias does not much soften the perceived condemnation.
This Article calls for a change in perspective. Rather than view bias as an accusation or moral flaw, criminal justice officials should instead consider it as scientists do—as an inevitable source of error to be minimized so as to produce outcomes that better reflect objective truth. Many types of bias can threaten the validity of basic scientific research, such as drug testing, and biases can introduce unwarranted disparities in the clinical practice of medicine as well. Scientists strive to identify possible sources of bias and then to find demonstrably effective methods for reducing those biases. Minimizing bias in scientific endeavors is simply a form of quality control. The practice of medicine also provides a highly relevant parallel for the legal profession in that wide racial and ethnic disparities have plagued the health care system, such as in the area of pain treatment. This Article explores the data on racial and ethnic disparities and the various interventions recommended both for medical professionals at the micro level as well as systemic reforms at the macro level.
Next, this Article highlights recent guidance from the National Council of State Courts regarding those intervention techniques that it found to be most effective in reducing implicit bias in criminal justice. We also briefly summarize proposals made by legal scholars calling for the use of blinding and other techniques at various key points in the criminal justice process. Finally, this Article describes the efforts of two California District Attorneys’ offices to employ artificial intelligence blinding technology to reduce implicit bias in prosecutorial charging decisions. Our survey of the studies and pilot projects applying scientifically developed strategies for reducing implicit bias demonstrates that leaders in the criminal justice arena have only begun the search for effective remedies, but much work remains to be done if we ever hope to reduce unwarranted disparities and achieve true justice.
This abstract has been adapted from the author\u27s introduction
What Does the Alex Jones Case Mean for the First Amendment and Disinformation? Leading Scholars, Lawyers Provide Analysis
Get PDFOld Age as the Hidden Sentencing Factor
Get PDFImagine two doctors who illegally sold opioids in exchange for cash. Both doctors sold roughly the same quantity of pills, had no prior criminal convictions, and accordingly faced the same sentencing guidelines range. The major difference was that one doctor was in his sixties and considerably older than the other doctor. The Federal Sentencing Guidelines provide that judges should consider a defendant\u27s age only in atypical cases. Yet, this Article demonstrates that older defendants received sentencing discounts far more often than younger defendants convicted of the same crime.
This Article gathers sentencing data for almost 130 doctors convicted in federal court of illegally selling opioids. These defendants all committed the same crime--drug dealing--and often sold similar quantities of drugs. Yet, the older defendants fared much better. When a guidelines sentence would have kept a defendant in prison past the age of sixty-five, judges sentenced below the guidelines in eighty-one percent of cases. By contrast, younger doctors received below-guideline sentences in only fifty-five percent of cases, which is consistent with sentencing data for all crimes. Older defendants not only received more frequent sentence reductions, but larger sentence reductions.
Most startling, this Article documents how some judges based their sentencing decisions not on the Federal Sentencing Guidelines, but instead, on the defendants\u27 likely age of death. Judges appear to start with an age of release in mind--often in the defendant\u27s mid-seventies--and work backward from there to compute the sentence. These judges seem focused on ensuring that older defendants will be released in time to live some of their remaining years outside of prison