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Ball Never Lies: How Guaranteed Contracts Provide NBA Players More Security than NFL Players to Advocate for Social Justice
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Robophobia
Get PDFRobots-machines, algorithms, artificial intelligence-play an increasingly important role in society, often supplementing or even replacing human judgment. Scholars have rightly become concerned with the fairness, accuracy, and humanity of these systems. Indeed, anxiety about machine bias is at a fever pitch. While these concerns are important, they nearly all run in one direction: we worry about robot bias against humans; we rarely worry about human bias against robots.
This is a mistake. Not because robots deserve, in some deontological sense, to be treated fairly-although that may be true-but because our bias against nonhuman deciders is bad for us. For example, it would be a mistake to reject self-driving cars merely because they cause a single fatal accident. Yet all too often this is what we do. We tolerate enormous risk from our fellow humans but almost none from machines. A substantial literature-almost entirely ignored by legal scholars concerned with algorithmic bias-suggests that we routinely prefer worse-performing humans over better-performing robots. We do this on our roads, in our courthouses, in our military, and in our hospitals. Our bias against robots is costly, and it will only get more so as robots become more capable.
This Article catalogs the many different forms of antirobot bias and suggests some reforms to curtail the harmful effects of that bias. The Article\u27s descriptive contribution is to develop a taxonomy of robophobia. Its normative contribution is to offer some reasons to be less biased against robots. The stakes could hardly be higher. We are entering an age when one of the most important policy questions will be how and where to deploy machine decision-makers
Blind Justice: Algorithms and Neutrality in the Case of Redistricting
Get PDFIn several areas of law and public policy, there have been longstanding dreams that computers can secure decision making that takes only some things into account, while remaining demonstrably neutral to other factors. In 2022, the U.S. Supreme Court will consider mandating race-neutrality in multiple domains, notably in college admissions and redistricting. In this piece, we clarify the real and imagined uses of computers in redistricting, considering their application for optimization approaches and, more recently, for representative sampling. The current pitch to the Court for a race-blind Voting Rights Act is discussed at length
Amicus (Spring 2022)
Get PDFIssue at a glance: Features Colorado Law alumni who are making their mark with careers in government Highlights the latest research by Professor Suzette Malveaux Shares Dean Inniss\u27 fundraising priorities for Colorado Law Includes stories of philanthropy by alumni and faculty Recognizes milestones and successes of Colorado Law alumnihttps://scholar.law.colorado.edu/amicus/1000/thumbnail.jp
A Framework for Thinking About the Government’s Speech and the Constitution
Get PDFThis Essay sketches a framework for mapping and navigating the constitutional implications of the government’s speech—and then illustrates this framework’s application to some contemporary constitutional disputes. My hope is that this framework will help us sort through the constitutional puzzles triggered by the government’s expressive choices—puzzles that confront courts and policymakers with increasing frequency. What I call “first-stage government speech questions” require us to determine when the government is speaking itself and when it is instead (or also) regulating others’ speech. This determination matters because the rules that apply to the government as speaker are very different from those that apply to the government as regulator—and necessarily so, as the government must have the power to control its own speech in order to govern. What I call “second stage government speech questions” involve the constitutional questions sometimes raised when the government is simply speaking and not compelling or regulating others’ speech. Here we consider whether and when the government’s speech by itself violates a specific constitutional provision like the Establishment Clause, the Equal Protection Clause, or the Due Process Clause, among others.
The government’s power to express itself is important and valuable. But sometimes governmental parties argue (and sometimes courts agree) that designating contested speech as the government’s is essentially a constitutional get-out-of-jail-free card—even though constitutional limits on the government’s speech remain. One of this Essay’s primary objectives is to make clear that even if we determine that contested speech is the government’s, our constitutional inquiry is by no means complete. Consider, for instance, governmental requirements that nongovernmental parties affirm or spread the government’s message against their will, or the government’s viewpoint-based restriction of private parties’ criticism of the government’s message. Think too of the government’s speech that coerces, endorses, or denigrates religious practice in violation of the Establishment Clause, the government’s speech that encourages or enables private parties’ racial discrimination in violation of the Equal Protection Clause, law enforcement officers’ lies to those in custody about their legal rights in violation of the Due Process Clause, and the government’s speech that violates the Free Speech Clause by threatening its targets for engaging in protected expression.
To be sure, the universe of situations in which the government’s speech, by itself, violates our constitutional rights and liberties is a small subset of the government’s multitudinous expressive choices. But such a universe nevertheless exists. To help us identify this universe, I propose that we consider a series of questions about the effects of, and the motivations underlying, the government’s speech—questions that suggest different ways of thinking about when and why the government’s speech is sometimes constitutionally dangerous
