20395 research outputs found
Sort by
Artificial Intelligence and the Anti-Authoritarian Fourth Amendment
No full textAI-enabled surveillance and policing technologies facilitate authoritarian drift. That is, the systems of observation, detection, and enforcement that AI makes possible tend to reduce structural checks on executive authority and to concentrate power among fewer and fewer people. In the wrong hands, they can help authorities detect subversive behavior and discourage or punish dissent, while enabling corruption, selective enforcement, and other abuses. These effects, although subtle in today’s relatively primitive AI-enabled systems, will become increasingly significant as AI technology improves.
Today, the most influential branch of Fourth Amendment scholarship conceives of the Fourth Amendment’s central purpose as preserving citizen privacy against intrusive government observation. Another, less prominent line of scholarship emphasizes the Fourth Amendment’s role in preventing government authoritarianism, focusing on concepts like power, security, and citizen autonomy. The insights of this latter branch of Fourth Amendment theory are likely to be increasingly relevant as artificial intelligence (AI) comes to play a larger role in surveillance and law enforcement.
The pro-authoritarian nature of AI law enforcement should influence how courts assess such law enforcement under the Fourth Amendment. This symposium Essay examines the role that Fourth Amendment law can play in regulating AI-enabled enforcement and preventing authoritarianism. It contends that, among other things, courts assessing whether networked camera or other sensor systems implicate the Fourth Amendment should account for the risks of unregulated, permeating surveillance by AI agents. Judges evaluating the reasonable use of force by police robots should consider the dangers of allowing AI systems to monopolize the use of force in a jurisdiction and the diminished justifications for self-defense. Likewise, courts can incorporate factors specific to the AI context into their totality of the circumstances analyses of Fourth Amendment reasonableness. Whether there is a “human in the loop” during enforcement encounters, and whether there is meaningful civilian oversight over AI-enabled enforcement programs, should play a substantial role in assessing the reasonableness of AI- centered police practices. By adopting the principles of the anti-authoritarian Fourth Amendment to the new frontier of AI law enforcement, legal actors can restrain the pro- authoritarian effects of emerging law enforcement technologie
How National Narratives Shape the Sovereignty of Nation-States
No full textThis Article is broadly about the relationship between narratives and international legal behavior. It is specifically about the relationship between narratives about the nation-state, and how individuals think about sovereignty. In the main discussion, I introduce a cross-disciplinary theory which brings into view the national narrative’s role in shaping sovereignty thinking. To illustrate the narrative theory, I discuss the phenomenon of Chinese diasporic sovereignty, denoting the tendency of some PRC officials to ascribe to the nation-state some measure of sovereignty authority over the overseas Chinese, including non-nationals. I argue Chinese diasporic sovereignty, constituting a departure from norms of territoriality and nationality, is informed by modern narratives of what it means to be “Chinese.” The theory more broadly suggests international law can be viewed as a process driven by actors who are situated, introspective, and shaped by the stories they tell themselves. This bears theoretical and practical lessons, not least for conventional understandings of international legal behavior
Restraining ‘Theft by the State’
No full textIn it\u27s 2023 decision on home equity theft, the Supreme Court showed property rights aren\u27t only for the rich
Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefit
Full text linkCriminal law distinguishes itself from other bodies of law by focusing on conduct the community sees as sufficiently condemnable to deserve stigmatization and punishment. Unfortunately, a number of recent practices serve to effectively decriminalize conduct even though the community sees it as criminally condemnable. This Article examines this understudied phenomenon, with an assessment of the societal costs and benefits from such decriminalizations. Decriminalization can occur through a variety of mechanisms. Prosecutors or other local officials rejecting legislative criminalization decisions can effectively decriminalize by prohibiting arrest or prosecution of certain offenses – e.g., drug possession, lower-level theft, domestic violence, immigration offenses – or of offenses committed by certain groups – e.g., rioters or statue vandals motivated by a cause the officials support. State legislators and even voters in state referendums can (often unknowingly) effectively decriminalize conduct that the community sees as criminally condemnable – e.g., supporting a public referendum to reduce the grade of lower-level theft without realizing that, because of other provisions, it effectively decriminalizes the conduct. The Article identifies four common motivations for such decriminalizations. First, the decriminalization may come from an anti-justice motivation, where the decriminalizer believes that crime ought to be dealt with as a medical, mental health, or social services issue, rather than through the justice system. Second, the decriminalization may be motivated by a desire to reduce the sanctions that would otherwise be imposed upon a group seen as “oppressed.” Third, many decriminalizers see themselves as having superior moral judgment about what should and should not be seen as criminally condemnable. Finally, some decriminalizers believe that their locale, rather than the larger jurisdiction, ought to have criminalization-decriminalization power even though the state or federal constitution allocates that authority otherwise. Decriminalizers may be motivated by any one or combination of these motivations. After reviewing the societal benefits that are claimed to follow from the various justifications for decriminalizing what the community sees as condemnable, the Article examines the societal costs, including the loss of deterrence from the announced policy, the loss of incapacitation of repeat offenders, the reduction in the criminal law’s moral credibility by refusing to treat as criminal conduct that the community sees as criminally condemnable, and the reduction in the criminal justice system’s legitimacy when ideological bias is seen as influencing prosecution decisions. Perhaps the most unfortunate societal cost is that the resulting increases in crime are disproportionately borne by vulnerable minority communities, even though many decriminalizers claim to be motivated by a desire to help those same communities. On the other hand, the societal costs of such decriminalizations also apply in reverse situations of over-criminalization. To avoid those societal costs, the criminal law must enlarge its current justification and excuse defenses, as well as mitigations, to reflect the greater breadth that empirical research shows that ordinary community members would support, which in many instances provides defenses even broader than the common modern formulations taken from the Model Penal Code. However, that expansion of defenses ought not extend to ideologically driven excuses like “rotten social background,” as some have advocated, usually for the same motivations that drive improper decriminalizations. This same societal cost-benefit analysis also means that just as criminally condemnable conduct should not be decriminalized, conduct that is no longer criminally condemnable should be decriminalized if the criminal law is to maintain its moral credibility and legitimacy. For example, adultery ought to be officially decriminalized where it remains an offense, and, of more immediate relevance, private marijuana use ought to be decriminalized as soon as community views have shifted to the point that it is no longer seen as criminally condemnable, a shift that has already occurred in much of the country. Ensuring that the criminal law tracks society’s criminalization-decriminalization judgements should not be controversial in a democratic society, and this Article argues for a fair and consistent application of that principle to all areas of criminal law. Keywords: Decriminalization, nonprosecution, anti-justice movement, anti-prison movement, social justice, progressive prosecutors, deterrence, moral credibility, legitimacy, community views, gun offenses, drug offense, rehabilitation, intuitions of justice, crime as a public health issue, George Floyd rioter
A review of public comments submitted to the Centers for Medicare and Medicaid Services in response to the 2022 National Coverage Decision on treatment for Alzheimer\u27s disease
No full textAlzheimer’s disease (AD) is a neurodegenerative disease with devastating personal and social consequences. In June 2021, the U.S. Food and Drug Administration (FDA) granted accelerated approval to aducanumab (Aduhelm; Biogen), a first-in-class monoclonal antibody (mAb) for treatment of AD. In July 2021, responding to the significant controversy sparked by aducanumab’s approval, the Centers for Medicare and Medicaid Services (CMS) opened a National Coverage Determination (NCD) analysis for mAbs intended for the treatment of AD. CMS received a record number of public comments on the proposed NCD, which included a proposal for coverage with evidence development (CED). We undertook an in-depth qualitative analysis of those comments. Broad themes included: the appropriateness of FDA’s approval of aducanumab; the nature of the relationship between CMS and FDA; anticipated downstream effects of CED on innovation and health equity; aducanumab’s cost, value, and affordability; and whether aducanumab offered patients hope. The aducanumab controversy occurred at the intersection of multiple contentious issues; in the discussion, we contextualize our findings within these broader debates. Though Biogen pulled aducanumab from the market in early 2024, the effects of the public discourse surrounding its approval and coverage have been long-lasting and far-reaching, affecting health law, policy, and clinical practice
From Presidents to Influencers: In Support of Actual Malice in the Internet Age
Full text linkThis paper defends the continued relevance of the actual malice standard in defamation law, arguing that it is essential to preserving First Amendment values in the modern media environment. Derived from New York Times Co. v. Sullivan , the actual malice standard protects the spread of information, open debate, and individual freedom of expression—principles that are even more important in an era defined by social media and internet-created public figures. The actual malice standard has faced increased scrutiny from politicians, academics, and the bench, with many arguing that its requirement is outdated and unfair, especially in light of the internet and social media. This paper argues the opposite: as more individuals are thrust into public status through online platforms, defamation law must continue to distinguish between harmful falsehoods and protected, good-faith speech, and the actual malice standard accomplishes this. By analyzing the First Amendment justifications for the doctrine and recent case law involving both traditional and digital-age public figures, this paper shows that the actual malice standard is not an insurmountable bar to recovery. Instead, it remains a necessary safeguard for democratic discourse, allowing room for error and opinion while still providing remedies for truly defamatory speech
An Autopsy of the Appellate Body: International Legal Theory on the Demise of the Rule of Law at the WTO
No full textOnce the “crown jewel” of the World Trade Organization (“WTO”), the Appellate Body wielded compulsory jurisdiction over more countries and more agreements than any other international tribunal in history. But it met its demise in 2019, after the United States (“U.S.”) blocked all new judicial appointments and left the Body without a quorum. This Article conducts an autopsy of the Appellate Body, using the tools of international legal theory to better understand its demise, and the demise of the rule of law at the WTO more generally. I examine the Body’s death through five different legal theories: the Rationalist theories of Realism, Liberalism, and Regime Theory; and the Constructivist theories of Managerialism and Transnational Legal Process. I find that no one theory provides a full explanation for the Appellate Body’s downfall, but that by considering various theories together we can develop a more complete understanding of the U.S.’s motive and the Body’s true cause of death. As this Article elaborates, Realism and Liberalism suggest that the U.S. attacked the Appellate Body because domestic, international, and legal developments made the U.S.’s compliance with the Body’s decisions untenable—politically and geopolitically. Regime Theory suggests that the U.S. chose its method of attack because it judged it would suffer fewer reputational costs from destroying the Body than from defying it. And Transnational Legal Process suggests that the reason the U.S. made that remarkable judgment was that WTO members had been acculturated to value formal compliance with the rules of the game more than the cooperative diplomacy that stands behind them. This novel account of the Appellate Body’s demise leads to a host of insights into international law and international trade law. Above all, it highlights the power and limitations of international law, the complementary nature of international legal theories, the highly formalistic culture of international trade law, and the productive and destructive force of legal formalism. I draw on those insights to offer three strategies for enhancing the resilience of our international institutions during this era of great upheaval, and for, perhaps, reviving WTO dispute settlement in the next