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Standing for Elections in State Courts
No full textLitigation has become a fixture of electoral contests. Litigants today often challenge every step of an election, from the results themselves to picayune aspects of administration. In response to this deluge, some courts have rejected election lawsuits on standing grounds. Such rulings may be unsurprising in federal court, given the tension between the federal standing doctrine\u27s injury requirements and the generalized nature of many election disputes. But most recent election cases take place in state court, where neither Article III nor the premises animating federal standing doctrine apply. State courts need election justiciability theories of their own.
This Article explores the role of standing doctrine in the future of state-court election litigation. Building on existing state practices and state constitutional principles, we defend a presumptively broad approach to state-court standing in election law cases, which we term simply election standing. We find that most state courts already relax standing to some extent in election cases--an approach that reflects both the flexible power of state courts and state constitutions\u27 commitment to democracy. State courts may be the best (and only) fora able to resolve pressing election-related disputes and, in turn, to foster certainty, finality, and confidence in election outcomes.
To be sure, rising election litigation is problematic, and opening the courthouse doors has downsides. The Article attends to these concerns. For one, election standing is rebuttable, not boundless, and courts need not hear duplicative or non-redressable claims. The Article also highlights tools other than standing doctrine that can help courts mitigate election litigation burdens. In the end, election seasons may continue to be unfortunately litigious times--but state courts generally fulfill their judicial role by resolving rather than avoiding election cases
AI Malpractice
No full textShould AI modelers be held to a professional standard of care? Recent scholarship has argued that those who build AI systems owe special duties to the public to promote values such as safety, fairness, transparency, and accountability. Yet, there is little agreement as to what the content of those duties should be. Nor is there a framework for how conflicting views should be resolved as a matter of law.
This Article builds on prior work applying professional malpractice law to conventional software development work, and extends it to AI work. The malpractice doctrine establishes an alternate standard of care—the customary care standard—that substitutes for the ordinary reasonable care standard. That substitution is needed in areas like medicine or law where the service is essential, the risk of harm is severe, and a uniform duty of care cannot be defined. The customary care standard offers a more flexible approach that tolerates a range of professional practices above a minimum expectation of competence. This approach is especially apt for occupations like software development where the science of the field is hotly contested or is rapidly evolving.
Although it is tempting to treat AI liability as a simple extension of software liability, there are key differences. First, AI work has not yet become essential to the social fabric the way software services have. The risk of underproviding AI services is less troublesome than it is for conventional professional services. Second, modern deep-learning AI techniques differ significantly from conventional software development practices, in ways that will likely facilitate greater convergence and uniformity in expert knowledge.
Those distinguishing features suggest that the law of AI liability will chart a different path than the law of software liability. For the immediate term, the interloper status of AI indicates a strict liability approach is most appropriate, given the other factors. In the longer term, as AI work becomes integrated into ordinary society, courts should expect to transition away from strict liability. For aspects that elude expert consensus and require exercise of discretionary judgment, courts should favor the professional malpractice standard. However, if there are broad swaths of AI work where experts can come to agreement on baseline standards, then courts can revert to the default of ordinary reasonable care
Climate Change and Voter Outreach: The IRS\u27s Prohibition on Political Campaign Activity and Climate Nonprofits
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Estate to State: Pay-to-Stay Statutes and the Problematic Seizure of Inherited Property
Get PDFPay-to-stay statutes allow states to recover their incarceration-related expenditures from those who are currently or have formerly been incarcerated. Mass incarceration is expensive, and states have aimed to shift this financial burden from their taxpayers and government coffers to the individuals who experience incarceration. Although pay-to-stay laws take many forms, in general, they authorize the government to seek recompense for an individual’s incarceration costs from the currently or formerly incarcerated person’s assets and income. Many states permit the seizure of inherited property to satisfy this legal financial obligation. Pay-to-stay laws have survived constitutional challenges thus far, but some state legislatures have recently faced public
pressure to abolish or limit the scope of their pay-to-stay regimes. This Article criticizes pay-to-stay statutes generally while addressing the special concerns arising when states use these laws to take inherited property as reimbursement. In particular, when states seize inherited property to satisfy the costs of incarceration, the states interfere with the decedent’s freedom to choose their beneficiaries as well as the beneficiary’s freedom to inherit. As a practical matter, these statutes apply inequitably by disparately impacting people without substantial wealth and people from communities that have historically been systemically excluded from intergenerational wealth. More broadly, this Article considers the implications of this practice on America’s carceral state. First, authorizing the government to seek reimbursement for incarceration costs from a broad range of sources reduces the government’s sense of urgency to decarcerate. Put simply, if incarceration is “user-funded” rather than taxpayer-funded, lawmakers are disincentivized from meaningfully addressing mass incarceration. Second, when private prisons administer the incarceration, a for-profit entity yields a profit beyond the costs of incarceration. This is unconscionable generally but is especially so when the assets seized are inherited property. Third, pay-to-stay perpetuates a cycle of poverty that is known to be counterproductively criminogenic. The families and communities of the affected persons experience the harms of this poverty cycle. This Article concludes by proposing the abolition of pay-to-stay statutes generally. At the very least, these statutes should not permit the state to intercept inheritances
Valuing Social Data
Get PDFSocial data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that companies follow to build up and leverage prediction value and explains their normative and legal ramifications.
Through the examples of tax and data privacy law, the Article applies these descriptive contributions to demonstrate how legal regimes fail to effectively regulate social data value creation. Tax law demonstrates how legal regimes historically tasked with regulating value creation struggle with this new form of value creation. Data privacy law shows how legal regimes that have historically regulated social data struggle with regulating data’s role in value creation.
The Article argues that separately analyzing data’s prediction value and its exchange value is helpful to understanding the challenges the law faces in governing social data production and its surrounding political economy. This improved understanding will equip legal scholars to better confront the harms of law’s failures in the digital economy, reduce legal arbitrage by powerful actors, and facilitate opportunities to maximize the beneficial potential of social data value