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Fair-Enough AI
No full textAI is unfair. It can be inaccurate (in several ways), biased (in several ways, and to several groups), disproportionate, exploitable, and opaque. The policy world is awash in AI-governance frameworks, ethical guidelines, and other policy documents, but these lack concrete standards and provide little guidance on how to select between competing versions of (un)fairness. In other words, they abdicate the responsibility of setting priorities among values. At the same time, many of the policy documents harshly criticize AI and algorithmic tools for deficiencies in some particular aspect of fairness without considering whether alternative designs that fix the problem would make the system more “unfair” in other aspects. Ad-hoc criticism is abundant and hard to predict.
This article offers a strategy for AI ethics officers to navigate the “abdication/ad-hoc criticism” problems in the regulatory landscape. After explaining the meaning and sources of the most important forms of AI unfairness, we argue that AI developers should make the inevitable tradeoffs between fairness goals as consciously and intentionally as the context will allow. Beyond that, in the absence of clear legal requirements to prioritize one form of fairness over another, an algorithm that makes well-considered trade-offs between values should be deemed “fair enough.
Book Review: \u3ci\u3eThe Evolving Tax: A Review Essay\u3c/i\u3e
Full text linkReview of: Tax and Government in the Twenty-First Century, Miranda Stewart, Cambridge University Press, 2022, pp. 407
ESG and the Demand for State Tax Incentives
Full text linkThis Article argues that a business which embeds environmental, social, and governance (ESG) considerations in its strategy should consider whether seeking or accepting targeted state and local economic development incentives (which we refer to as “state tax incentives”) is consistent with that strategy. The outcome of that consideration will vary by locality, incentive package, and strategy. But given the demonstrated negative impact of state tax incentives on government finances and the community, most ESG-minded companies should either forgo them or cooperate with the state in crafting incentives that benefit both the company and the community. A well-crafted ESG reporting standard on this topic can help guide companies towards such win-win incentives and help them credibly communicate their approach to investors and other stakeholders. This Article proposes that companies, investors and governments should lobby ESG standard setters to create an effective reporting standard, and we offer some recommendations for its characteristics. We believe this is the first article to examine state tax incentives in the context of ESG and the first to suggest that the demand for state tax incentives can be reduced as more companies (and their investors) realize that taking incentives is inconsistent with their ESG strategies. All prior attempts to curtail state tax incentives have targeted the supply of state tax incentives by seeking to encourage or force states to limit their use. These attempts are essential and must continue. But they have not achieved the hoped-for results, in part, because they relied on persuading political actors to stop taking actions that they believe are in their own self-interest. In contrast, a demand side, company- and investor-driven approach may be more successful because applying an ESG framework requires companies to act in their own interest, while better taking into account long-term costs and benefits. This Article explains the problems that have resulted from state and local tax incentives and the various efforts to curtail them; reviews the emerging concept of ESG; applies the literature on tax avoidance and corporate social responsibility to state tax incentives; provides a basic outline for a state tax incentive ESG reporting standard; highlights the strategic benefits that will accrue to a company that takes a more deliberate approach to deciding whether to seek and accept state tax incentives; and identifies issues at the intersection of ESG and state tax incentives that are ripe for future research
Tax Law Enforcement and Redistributive Politics
Full text linkThe Inflation Reduction Act signed by President Biden on August 16, 2022, allocated $80 billion in additional funding for the IRS. While Democrats unanimously supported the bill, not a single Republican voted in favor of it. The first legislation advanced by the new Republican majority in 2023 was to repeal this increase in IRS funding. Given the diminished state of IRS enforcement capacity, increasing the resources devoted to tax enforcement seems like an obvious imperative without a clear partisan valence. One might think that political and ideological battles would be fought over what the tax law is, not whether the IRS has the resources to enforce it. But IRS funding has become a major political point of contention. Why is tax law enforcement such a partisan issue? In this Article we propose an answer. We argue that the income tax is the primary instrument for income redistribution, and so the efficacy of tax enforcement shapes people’s support for redistribution. When the IRS makes sure people pay their taxes, support for income redistribution increases. And when the IRS is unable to enforce the nation’s tax laws, support for income redistribution decreases. Thus, for political progressives increasing tax enforcement generates a double dividend. It both provides more funds for redistribution and also increases political support for redistribution, which can then be translated into redistributive changes to the tax law. For symmetric reasons, reducing tax enforcement generates a double dividend for those who disfavor income redistribution. To support our theory, we use unique data from the General Social Survey on perceptions of tax law enforcement. We show that perceptions of tax enforcement are strongly correlated with redistributive preferences. Specifically, people who think that tax law is underenforced are less likely to support income redistribution. We find similar results when looking at specific redistributive welfare programs. To disentangle causation from correlation, we administered a national representative survey which specifically asked about the effects of increased tax law enforcement on support for redistribution. Thus, tax law enforcement does not only determine the amount of tax revenue we collect; it also shapes our redistributive preferences which in turn affects our redistributive polices. This means that as long as our political parties are divided about the desirability of income redistribution, the political battles around IRS funding and enforcement are not likely to wane
Acquiring Ethical AI
Full text linkArtificial intelligence (AI) is transforming how the federal government operates. Under the right conditions, AI systems can solve complex problems, reduce administrative burdens, improve human decisions, and optimize resources. Under the wrong conditions, AI systems can lead to widespread discrimination, invasions of privacy, and the erosion of democratic norms. A burgeoning literature has emerged to square algorithmic governance with the precepts of constitutional and administrative law. Federal procurement law, however, remains a dangerous blind spot in the reformist agenda. This Article pivots into that neglected space and emerges with comprehensive framework for acquiring ethical AI. Toward that end, the Article makes three main contributions. First, it provides an original account that yokes the ambitions of algorithmic governance, the imperative of ethical AI, and the levers of procurement law. Second, this Article argues that the procurement system is uniquely situated to check and enable algorithmic governance in ways that other legal frameworks miss. Third, the Article prescribes a set of concrete regulatory reforms to instantiate ethical AI throughout the procurement process: from acquisition planning to market solicitation, bid evaluation, source selection, and contract performance. Procurement law will not solve all the challenges of algorithmic governance. Just as surely, those challenges cannot be solved without procurement law
Domesticating Foreign Finance
Full text linkMore than a decade after the 2008 financial crisis, U.S. policymakers still have not adequately addressed one of the primary causes of the crash: foreign banks. When foreign banks first entered the United States fifty years ago, they specialized in traditional banking products like loans and deposit accounts. Over time, however, many foreign banks shifted to a riskier strategy focused on speculative capital markets investments and fueled by volatile short-term debt. This novel business model created vulnerabilities for the U.S. financial system, as became clear when Deutsche Bank, Barclays, UBS, and other foreign banks accelerated the 2008 crisis. This Article contends that while foreign banks’ role in the U.S. financial system has evolved over time, the U.S. regulatory framework has not kept pace. After the financial crisis, policymakers tried to rein in foreign banks by regulating some of their U.S. offices directly, rather than deferring to home-country authorities. Some foreign banks, however, have evaded these reforms by shifting billions of dollars in assets to lightly regulated U.S. branches—a classic case of regulatory arbitrage. This Article asserts that foreign banks continue to pose risks to the U.S. financial system, threatening a recurrence of the Great Recession. Accordingly, this Article recommends an alternative regulatory approach—namely, mandatory subsidiarization of large foreign bank branches—that would better safeguard foreign banks’ U.S. operations while remaining consistent with longstanding international regulatory norms
Plurality Decisions and the Ambiguity of Precedential Authority
Full text linkThe Supreme Court sometimes decides cases without reaching a majority-supported agreement on a rule that explains the outcome. Determining the precedential effect of such plurality decisions is a task that has long confounded both the Supreme Court and the lower courts. But while academic commenters have proposed a variety of frameworks for addressing the problem of plurality precedent, little existing commentary has focused on a deeper and more fundamental question—namely, what makes plurality precedent so confusing? Answering this question is not only critical to developing a more coherent and administrable doctrine of plurality precedent but is also a useful prism through which to examine our shared understanding of precedential authority more generally. This Article argues that plurality decisions are so confusing because they expose a latent ambiguity in our law of precedent. Looking to the debates surrounding plurality precedent reveals at least three distinct—and to some extent, mutually inconsistent—models of precedential authority. The first of these models, the “judgment model,” is closely connected to the traditional common law view, which grounds the precedential authority of judicial statements in the ability of those statements to explain the particular judgment issued by the court in the case before it. The second model, the “prediction model,” views the holding of a case as the rule that best predicts the future behavior of the court based on the expressed views of the participating judges. Finally, the “pronouncement model” focuses on the judiciary’s law declaration function, viewing all majority-endorsed legal rules as entitled to precedential force regardless of their connectedness to the court’s judgment or their capacity to predict the court’s future behavior. Exposing the ambiguities inherent in plurality precedent does not provide a clear answer to how the conflict among the competing models should be resolved. But doing so may help eliminate some of the conceptual confusion that has grown up around plurality precedent. In particular, focusing on the underlying theories of precedential authority that drive the various approaches to plurality precedent suggests that some of the most widely accepted approaches that have been embraced by lower court judges may lack a coherent justification in any plausible model of precedential authority. Recognizing the underlying ambiguity can also help to expose potential connections to other, seemingly unrelated doctrinal areas that may be affected by changes to the doctrine surrounding plurality precedent
Religious Covenants
Full text linkWhen religious institutions alienate property, they often include religiously motivated deed restrictions that bind future owners, sometimes in perpetuity. These “religious covenants” serve different purposes and advance different goals. Some prohibit land uses that the alienating faith communities consider illicit; others seek to ensure continuity of faith commitments; still, others signal public disaffiliation with the new owners and their successors. Some religious covenants are required by theological mandates, but many are not. This Article examines the phenomenon of religious covenants as both a private law and public law problem. This Article concludes that most, but not all, of the religious covenants are likely enforceable, and furthermore, that traditional private law rules governing covenant enforcement represent a bigger impediment to their enforcement than public law principles
Children\u27s Rights Debates, Revisited
Full text linkA Dunwody distinguished lecture in law that reflects on children\u27s rights