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Situating Structural Challenges to Agency Authority Within the Framework of the Finality Principle
Get PDFRacializing Algorithms
Get PDFThere is widespread recognition that algorithms in criminal law’s administration can impose negative racial and social effects. Scholars tend to offer two ways to address this concern through law—tinkering around the tools or abolishing the tools through law and policy. This Article contends that these paradigmatic interventions, though they may center racial disparities, legitimate the way race functions to structure society through the intersection of technology and law. In adopting a theoretical lens centered on racism and the law, it reveals deeply embedded social assumptions about race that propel algorithms as criminal legal reform in response to mass incarceration. It further explains how these same assumptions normalize the socially and historically contingent process of producing race and racial hierarchy in society through law. Normatively, this Article rejects the notion that tinkering around or facilitating the abolition of algorithms present the only viable solutions in law. Rather, it calls upon legal scholars to consider directly how to use the law to challenge the production of racial hierarchy at the intersection of technology and society. This Article proposes shifting the legal discourse on algorithms as criminal legal reform to critically center racism as an important step in this larger project moving forward
The Incongruence Principle of Evidence
Get PDFEvidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.
In this article, I draw on fields outside of law—including Bayesian inference and cognitive psychology—to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make inferences and judgments. I apply this model to derive a principle that I refer to as the incongruence principle of evidence. It states that the informational value of evidence at trial is not equal to the informational value of the same evidence in the real world. I show that, contrary to standard assumptions in evidence law, the trial setting degrades the value of evidence. It does this, on the one hand, by magnifying the influence of a juror’s priors—including biases based on the race, gender, appearance, and other background characteristics of trial participants—and on the other hand, by employing a unique decisional framework that is susceptible to an inferential problem called “overfitting,” which can lead to false-positive judgments when combined with biased and influential priors.
Finally, I show that the incongruence principle carries important implications for evidence law, including for the rule against character evidence, the hearsay rule, and impeachment evidence. I argue that recognizing the role of the incongruence principle in a juror’s interpretation of evidence can help lawmakers to structure evidence law in a way that better achieves the goals of accuracy and equality
The Undemocratic Class Action
Get PDFClass actions can have profound effects. But theorists, policymakers, and judges have long worried that attorneys can use them for their own advantage, reaping generous rewards for themselves while class members receive next to nothing. Unlike citizens or shareholders, members of a class cannot exercise democratic control over the attorney that nominally works on their behalf. I label this the democratic critique of class actions, and it has been the dominant framework for understanding class actions, shaping both case law and reform proposals.
The democratic critique is based on a false premise, though, because it does not take into account the downsides of democratic control. Drawing insight from the political economy literature, I show that there is an inevitable trade-off between control and expertise: if class members had control, they would lose the specialized knowledge that the attorney brings to the table. In other words, voting over litigation decisions would actually make class members worse off. Strategic features of the relationship make it hard for them to accept even well-meaning advice from their attorney: the mere possibility that the attorney might mislead them prevents information from being conveyed. Perversely, honest advice actually leads class members to make especially bad decisions. Given the choice, class members would rather delegate matters to the attorney instead of exercising class action democracy.
By blunting the dominant critique of class actions, this Article goes a long way to reestablishing their legitimacy. It also suggests better ways to protect class members’ interests. Rather than looking to institute democratic procedures in class actions or find some substitute for them, judges should engage in careful scrutiny of attorney fee arrangements and the structure of settlements. Class action law should ensure that the attorney does well if and only if their client, the class, does
The Child Vanishes: Justice Scalia\u27s Approach to the Role of Psychology in Determining Children\u27s Rights and Responsibilities
Get PDFThis Article explores how Justice Antonin Scalia’s hostility to psychology, antipathy to granting children autonomous rights, and dismissiveness of children’s interior lives both affected his jurisprudence and was a natural outgrowth of it. Justice Scalia expressed a skeptical, one might even say hostile, attitude towards psychology and its practitioners. Justice Scalia’s cynicism about the discipline and the therapists who practice it is particularly interesting regarding legal and policy arguments concerning children. His love of tradition and his rigid and unempathetic approach to children clash with modern notions of child psychology. Justice Scalia’s attitude towards psychology helps to explain his jurisprudence, but more importantly, illustrates how his dedication to tradition, history, and originalism leads to his attitudes towards children and psychology, and raises interesting questions about the role of psychology in legal opinions. The use of children as “posterchildren”—sympathetic representatives of liberal causes—for abolishing the death penalty and curtailing public-sponsored prayer clearly irked Justice Scalia. Additionally, Justice Scalia’s attitudes toward psychology present a fascinating lens for assessing how judicial philosophy and personal proclivity reinforce each other. More broadly, this Article explores how judges should use brain science, social psychology, and clinical psychology in their legal analyses
Deals in the Heartland: Renewable Energy Projects, Local Resistance, and How Law Can Help
Get PDFInformed by original empirical research conducted in the Midwestern United States, this Article provides a rich and textured understanding of the rapidly emerging opposition to renewable energy projects. Beyond the Article’s urgent practical contributions, it also examines the importance of formalism and formality in contracts and complicates current understandings.Rural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level commitments to achieving renewable energy targets in the face of the mounting climate crisis. This Article analyzes why and how communities, using county ordinances, township regulations, and electoral processes, mobilize against renewable energy companies and repel commercial wind projects. It describes the surprising and complex interplay of national, state, and municipal law governing the transition to renewable energy, and provides tangible reform proposals that can address this emerging policy crisis.This Article also advances theoretical understandings of contractual governance and contractual relations, as well as the role of informal law and institutions in tight-knit communities. The field work at the heart of this Article provides evidence that the importance of government in contracts is currently underappreciated. This is particularly so in the context of the transition to renewable energy, where national and state governments have articulated ambitious policy objectives. Governments can add value to the deals between companies and communities, by incentivizing the deals ex ante and by stabilizing the resulting legal relationships ex post. The Article thus concludes that the trend restricting governmental presence in contracts also limits governments’ ability to achieve articulated public goals. The Article also illustrates the importance of contract formality, especially in tight-knit communities. In such local contexts, transparent, clearly articulated deals and deal-making can inspire trust, serving as the pivot point in local decisions about whether to allow renewable energy projects. Because formality opens possibilities for durable relationships in tight-knit communities it can serve as a catalyst for renewable energy projects in America’s heartland
Introduction: Digital Transformation of Government: Towards a Digital Leviathan?
Get PDFA warm welcome to you all. It is a great pleasure to be able to participate in this exciting collaboration between Universidad Carlos III de Madrid (UC3M) and Indiana University—a conference that the Indiana Journal of Global Legal Studies is publishing in celebration of its thirtieth issue. This is a milestone for us, and we could not be happier to celebrate it in this way. Let me begin with a few words about the nature of this journal and its scholarly goals over the years
Trust in Artificial Intelligence: Analysis of the European Commission Proposal for a Regulation of Artificial Intelligence
No full textI shall start by reflecting on the importance that trust has for society (section 2). From there, I will define what is to be understood in this paper by trust (section 3). I shall then review the basis of trust (section 4) and shall make a reference to the main sources of evidence on trust (like, surveys and laboratory experiments), and to some of the results that these sources reveal on interpersonal and institutional trust (section 5). In the next section (section 6), I shall go on to analyse specifically the issue of trust in AI, will refer to the existing evidence on the matter, and will review some of the most recent literature on this topic. In the remaining sections (sections 7 and 8), I will describe and analyse the European Commission’s proposal for a regulation of AI, and in particular, the part of that proposal that deals with trust in AI. In the last section of this article, I will wrap up the whole argument of this paper and make some conclusions (section 9). The main argument that will be developed in this paper is that it is inconsequential to speak of trust in AI systems