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Introduction: Three Responses to Rewritten Opinions in \u3cem\u3eCritical Race Judgments\u3c/em\u3e
Get PDFA Review of Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig
Who Owns Data? Understanding the Rights & Duties of Platform Stakeholders
Get PDFWhile mindlessly scrolling Facebook, Instagram, or TikTok, users often forget that a complicated web of personal data ownership lies under the screen. This Note analyzes the legal interactions of users, platforms, and third-parties regarding this personal data. Hohfeldian analysis of rights and reciprocal duties in the context of California’s various data privacy statutes and common law doctrines provides a powerful tool for understanding the rocky legal landscape data stakeholders navigate. Courts add further definition to this landscape when adjudicating conflicts between these stakeholders. Legal scholars have also proposed frameworks to simplify the rules of engagement for these stakeholders. Data privacy is an area that has enjoyed historically little top-down examination. This Note hopes to unwind the complicated web that is personal data privacy law
Assessing Visions of Democracy in Regulatory Policymaking
No full textMotivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both
Relentless Atrocities: the Persecution of Hazaras
Get PDFAs one of the main ethnic groups in Afghanistan, Hazaras are Farsi-speaking and mostly Shi’a Muslims in a predominantly Sunni Muslim country. They are also distinguishable by their Asiatic appearance. Throughout Afghanistan’s history, Hazaras have suffered considerably under different regimes, enduring recurring massacres, enslavement, and forced displacement. Despite Afghanistan’s accession to the Rome Statute in 2003, the plight of Hazaras has not improved. Indeed, the assaults on Hazaras have only intensified in recent years, impacting virtually every aspect of their lives.
This article argues that the recent and ongoing attacks against Hazaras constitute a crime against humanity. In particular, I show, element by element, that there is a reasonable basis to believe that the assaults on Hazaras amount to persecution based on ethnic and religious grounds pursuant to article 7(1)(h) of the Rome Statute. Accordingly, the International Criminal Court and the global community must take urgent actions to investigate the relentless atrocities against Hazaras and to hold the perpetrators accountable. Failure to do so, as warned by the U.S. Holocaust Memorial Museum, may lead to a full-blown genocide
Equitable Ecosystem: A Two-Pronged Approach to Equity in Artificial Intelligence
Get PDFLawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining which innovations will scale, we argue that influencing how these firms allocate the capital in their funds can ensure that issues of equity are top of mind for development teams. To shift the flow of investment dollars, we propose a two-pronged approach that will address two core drivers of the flow of investment: intellectual property (IP) and diversity. Our current IP system incentivizes a lack of transparency in the AI space frustrating attempts by third parties to assess whether AI- powered products and services are inequitable. And the current demographic makeup of VC firms and companies within the AI investment environment are out of sync with the general population, which can have negative downstream effects in terms of bias in AI. To change the existing dynamic, we argue for 1. creating a fifth category of IP for data and AI that would exchange ownership for compliance with a human rights framework and 2. establishing a tax incentive for VC firms graded favorably on our commitment index. Our approach is designed to create an equitable ecosystem of sorts, one that both necessitates and encourages equitable AI from conception to implementation
Error Aversions and Due Process
Get PDFWilliam Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.
Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority view false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and are more conviction-prone than the minority of potential jurors who agree with Blackstone.
These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not inclined to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pretrial screening of criminal cases and stricter limits on prosecution evidence. Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support
Legal Guardrails for a Unicorn Crackdown
Get PDFThe Securities and Exchange Commission (SEC) is undertaking a historic effort to redraw the boundary between public and private companies. After years of watching—and sometimes encouraging—the explosive growth in less tightly regulated private markets and the proliferation of so-called “unicorns,” the agency is now reasserting its authority.
A key arrow in the agency’s regulatory quiver is its authority under section 12(g) of the Securities Exchange Act of 1934 (Exchange Act) to force private companies to “go public” when they reach a certain size. The provision requires any company whose shares are “held of record” by more than 2,000 persons to take on the obligations imposed by federal securities regulations on public companies, including extensive disclosure. But today, this 2,000 shareholder trigger has no real constraining effect; because a single holder “of record” can easily (and often does) stand in for tens, hundreds, or even thousands of real beneficial owners, private companies can easily raise endless amounts of capital without tripping the threshold.
Now, the SEC wants to close this loophole by mandating a “look-through” to the beneficial owners of the securities for purposes of the shareholder count. The details remain to be seen, but the agency is apparently eager to significantly curtail the ability of private companies to grow outside of the regulatory scrutiny that accompanies public company status.
This paper proceeds in five Parts. Part I provides a brief background on the rise of private markets and the SEC’s budding efforts to reassert its authority in this domain. Part II examines the text and legislative history of section 12(g) and shows how Congress limited the agency’s authority to mandate a look-through for purposes of the shareholder count. Part III considers various possible interpretations of the SEC’s authority to mandate a look-through and shows that the more limited interpretations of this authority are the most reasonable. Part IV shows that the limited interpretations presented in Part III are also consistent with the small number of look-throughs previously authorized by the agency. Part V shows how these limited interpretations might significantly restrict the agency’s ability to fundamentally redraw the lines between public and private companies
Aerial Trespass and the Fourth Amendment
Get PDFSince 1973, courts have analyzed aerial surveillance under the Fourth Amendment by applying the test from Katz v. United States, which states that a search triggers the Fourth Amendment when a government actor violates a person’s “reasonable expectation of privacy.” The Supreme Court applied Katz to aerial surveillance three times throughout the 1980s, yet this area of the law remains unsettled and outcomes are unpredictable. In 2012, the Supreme Court recognized an alternative to the Katz test in Jones v. United States, which held that a search triggers the Fourth Amendment when a government actor physically intrudes into a constitutionally protected space with the intent to obtain information. Courts have largely avoided applying the Jones intrusion test to aerial surveillance. This Note explores the intersection of the Fourth Amendment, aerial property rights, and government use of drones. It argues that the Jones intrusion test can be a useful doctrinal tool for analyzing aerial surveillance under the Fourth Amendment. This issue will only grow in importance as law enforcement expands its use of use of drone technology
De-Nazifying by De-Cartelizing
No full textIn 1945, a group of zealous American trustbusters, freshly groomed in the Brandeisian tradition of “anti- Bigness,” descended on the smoldering ruins of Germany, eager to identify and then nullify the culprits behind Hitler’s rise to power. Their eyes were fixed on the enormous industrial combines and cartel organizations that had sprung up in the German economy since the time of Bismarck, grown exponentially during the Weimar era, and then served as the economic infrastructure of the Third Reich. To the trustbusters in the Office of Military Government US (“OMGUS”) Decartelization Branch, the monopolies and trusts were the prime culprits and their elimination was of paramount importance to Germany’s peaceable future. The trustbusters understood their mission as not just economic reordering, but as training in democracy. According to their mission statement, the Decartelization Branch must “teach the German people that political democracy cannot long survive the disappearance of economic democracy.