8145 research outputs found
Sort by
The Targeting of Underseas Communications Cables: Armed Conflict, Developing States, and the Need for a TWAIL Approach
Get PDFTo Save Democracy from Juristocracy: J.B. Thayer and Congressional Power After the Civil War
Get PDFAs many Americans once again worry that their democracy is hostage to judicial power, this Article is an archival reconstruction of how famed Harvard law professor James Bradley Thayer set out on a mission to stave off the syndrome before it stuck—though he failed in the end. The Article shows how Thayer (1831–1902) arrived at his epoch-making theory of judicial deference to safeguard Congress’s power after the democratic revolutions of the Civil War and Reconstruction. Indeed, he hoped to see America transformed in the direction of British legislative supremacy, in which Parliament—and not the courts—reigned supreme.Scandalized by growing ventures to weaponize the federal judiciary so as to preempt the newly federalized American democracy, Thayer bet on something new in global history: mass democracy on a national scale, understood as an experiment in collective learning. The Article thereby provides a new periodization and transatlantic contextualization of the struggles over judicial fiat routinely associated with the Supreme Court’s defense of laissez-faire in the early twentieth century. And yet, as this Article emphasizes, Thayer failed in the long run. His democratizing fix, judicial self-restraint under the “clear error standard”—which this Article shows had the same English roots as his democratic and parliamentary theory—has tragically misled reform. It embroiled Americans in a never ending debate on judicial “restraint,” even as Thayer proposed a doctrinal prescription encouraging judges to limit their power themselves. He therefore postponed an institutional remedy for an institutional syndrome. For this reason, his mission, in spite of its partial implementation after his death, now has to be rescued in its own right. Judicial self-restraint has not prevented the continuation and even the intensification of the very juristocratic syndrome Thayer rightly found so troubling. If Americans still remain with him at the dawn of our commitment to democracy, they will have to save it from judges in a new way all their own
Civil Rights Liability for Bad Hiring
Get PDFSuppose that a municipality hires a police officer, teacher, corrections officer, or other official with an extensive record of past misconduct—someone the municipality should have known better than to hire. When such an employee causes a violation of constitutional rights, the injured party often brings a civil rights suit under 42 U.S.C. § 1983, arguing that the municipality failed to screen the wrongdoer prior to hiring. Yet little is known about how such lawsuits play out on the ground.
In the first empirical study of municipal liability for bad hiring, this Article demonstrates that municipalities enjoy de facto immunity for failing to screen employees with poor records. Only one federal appellate court in the past twenty-five years has upheld § 1983 liability against a municipality for its deficient hiring practices. Analysis of hundreds of district court dockets tells the same story: among all § 1983 cases initiated in 2019, just three courts nationwide ruled in favor of a plaintiff when presented with a bad hiring claim on a motion, and no plaintiff won a final judgment against a municipality for bad hiring. The reasons for plaintiffs’ lack of success include both the demanding doctrinal standards applicable to municipal liability claims and the surprisingly poor quality of lawyering in these municipal liability cases.
Because liability for bad hiring is so rare, municipalities have little incentive to screen employees carefully. These lackluster screening practices result in dubious hiring decisions and enable the serial job-hopping of municipal employees who are fired or resign under threat of termination for misconduct. The result is that the public is endangered by powerful officials who likely should not have been hired in the first place. But all is not lost for civil rights advocates: this Article concludes with a suite of interventions both within and beyond litigation that can combat the problem of bad hiring
The Algorithmic Explainability Bait and Switch
Get PDFExplainability in artificial intelligence and machine learning (AI/ML) is emerging as a leading area of academic research and a topic of significant regulatory concern. Increasingly, academics, governments, and civil society groups are moving toward a consensus that AI/ML must be explainable. In this Article, we challenge this prevailing trend. We argue that for explainability to be a moral requirement—and even more so for it to be a legal requirement—it should satisfy certain desiderata which it often currently does not, and possibly cannot. In particular, this Article argues that the currently prevailing approaches to explainable AI/ML are often (1) incapable of guiding our action and planning, (2) incapable of making transparent the actual reasons underlying an automated decision, and (3) incapable of underwriting normative (moral and legal) judgments, such as blame and resentment. This stems from the post hoc nature of the explanations offered by prevailing explainability algorithms. As the Article explains, these algorithms are “insincere-by-design,” so to speak. This often renders them of very little value to legislators or policymakers who are interested in (the laudable goal of) transparency in automated decision-making. There is, however, an alternative—interpretable AI/ML—which the Article will distinguish from explainable AI/ML. Interpretable AI/ML can be useful where it is appropriate, but presents real trade-offs as to algorithmic performance, and in some instances (in medicine and elsewhere) adopting an interpretable AI/ML may mean adopting a less accurate AI/ML. This Article argues that it is better to face those trade-offs head on, rather than embrace the fool’s gold of explainable AI/ML
Americans, Beyond States and Territories
Get PDFFor over a century, the law has systemically marginalized over three million Americans living in the unincorporated Territories of the United States. The law has long defined the Territories homogenously and subserviently to States. It has segregated the rights and privileges of citizenship between those living in States and those living in Territories. Americans living in States receive all the rights and privileges of citizenship, while Americans living in Territories are dispossessed of their right to vote, meaningful political representation, and various federal benefits. This pernicious legal dualism between States and Territories has grounded over a century’s worth of public policy, scholarly inquiries, courtroom challenges, and political advocacy. While straightforward, this framework is too limiting and fundamentally incorrect. By allocating so much attention and resources to the differences between Territories and States, not enough focus and capital has been paid to the differences among the Territories themselves. By defining, for so long, the Territories through a legal framework of segregated subservience to States, pragmatic solutions have been overlooked—to the detriment of millions of Americans. This Article is about this faulty legal framework, its constraints, and a normative and practical move beyond States and Territories towards a more diverse and inclusive conception of American citizenship. It begins with an overview of each Territory and examines their shared struggles of political disenfranchisement, economic destitution, racial discrimination, and climate change. Next, the Article examines their distinct despairs—focusing on Puerto Rico exceptionalism, military occupation, geographic divergences, and disparate federal benefits—to highlight key differences. Finally, turning from afflictions to solutions, this Article introduces a new territorial diversity framework as an alternative to the traditional States/Territories legal construct. It aims to unlock tangible, overlooked solutions for the Territories in the near term through executive orders, legislative earmarks, and agency action while larger legal questions remain unresolved. Ultimately, this Article aspires to offer an original, pragmatic framework for advocating and acting anew with greater creativity and urgency for our fellow Americans in the Territories
Public Law, Private Platforms
Get PDFOur law—both our constitutional law and much of our statutory law—has long drawn a fraught distinction between public and private domains. Indeed, debates about the public/private distinction date as far back as liberalism itself. But today’s private digital platforms strain that distinction to a new degree. Platforms have become our public spaces, but because they are privately owned and “merely” coordinate private ordering, they operate without the guardrails of many of our most important laws. For example, anti-discrimination law once covered nearly all short-term bookings at inns and hotels; today, nearly a quarter of the hospitality market is controlled by Airbnb, where the majority of bookings are in owner-occupied homes that are exempt from anti-discrimination law’s reach. The First Amendment once protected against the gravest threats to free speech; today, scholars question whether it is fit to handle the novel speech problems presented by social media. The Fourth Amendment once prevented the police from gaining warrantless access to our most private information; today, the police simply buy that data on the open market. The list goes on. While criminal law and speech scholars have noticed the state action problem in constitutional law, and civil rights scholars have discussed the private carveouts in anti-discrimination law, there is little scholarship moving beyond these silos to explore how these different regulatory puzzles stem from the same fundamental problem. Recognizing that the public/private distinction is the core of the platform problem has a number of implications. It helps explain the platforms’ persistent ability to evade meaningful regulation and it suggests a new way forward—a more suitable remedy than using blunt antitrust tools to address our biggest social ills. Specifically, courts and legislators should revive and expand the legal doctrines that recognize the imperfect nature of our law’s distinction between public and private. These private-but-public doctrines—like public accommodations, the public policy doctrine in contract, the public trust doctrine in property, and more—have long recognized the limits to private ordering in the public interest. It is time to update them for the digital age
The Public Administration of Justice
Get PDFAdjudicatory agencies decide who receives social-welfare benefits, which inventions deserve patents, and which noncitizens get to remain in the United States. Scholars have argued that agency adjudication lacks sufficient structural and procedural protections to ensure unbiased decision-making. Yet these critiques miss a key problem with agency adjudication: the lack of adjudicatory capacity. This Article argues that low-capacity agencies cannot satisfy the Due Process Clause\u27s demand for accurate decision-making. To produce accurate decisions, adjudicatory agencies need sufficient levels of capacity: (1) material resources, (2) expert adjudicators, and (3) support staff When agencies lack these resources, their adjudicators rely on various coping mechanisms to manage their workloads. They shorten hearings, make assumptions about respondents\u27 claims based on appearance, or take other steps to reduce the cognitive burdens associated with a high workload. Yet these coping mechanisms introduce errors into the decision-making process. Often, these errors are not random and, instead, are biased against one party to the dispute.
This Article uses the Immigration Courts as a case study of this phenomenon. The Executive Office of Immigration Review (EOIR)-the agency charged with adjudicating the removal of noncitizens from the United States-suffers from severe understaffing and has amassed a backlog of over two million cases. Analyzing over 1.5 million removal proceedings and 32,000 personnel records, this Article uses causal and statistical methods to examine the effect that one element of adjudicatory capacity (i.e., law clerks) has on outcomes in the Immigration Courts. This analysis finds that providing an Immigration Judge (IJ) with one law clerk decreases the likelihood of removal by 5.2 percentage points and increases the likelihood of an asylum grant by 4.4 percentage points. These effects are significant and exceed the effect sizes of other known contributors to bias, such as the IJ\u27s prior employment and appointing President.
Why do adjudicatory agencies, like EOIR, appear starved for resources? This Article argues that neither Congress nor the President has sufficient electoral incentives to invest in these agencies. As a result, adjudicatory agencies will continue to make systematic errors without intervention. However, the Due Process Clause demands accurate systems of agency adjudication. If Congress and the President will not uphold their duty to build capacity within these agencies, then courts must reform administrative law doctrine to promote due process. By reimagining the law of agency adjudication from a public-administration perspective, courts can provide agencies with the flexibility they need to manage their workloads while protecting the due process rights of the respondents who appear before agency adjudicators
The Court’s Morality Play: The Punishment Lens, Sex, and Abortion
Get PDFThis Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped—and will continue to shape—the abortion debate. The Court has historically used a “punishment lens” to allow the evolution of moral expression in the public square, without enmeshing the Court itself in the underlying values debate. The punishment lens allows a court to redirect attention by focusing on the penalty rather than the potentially inflammatory subject for which the penalty is being imposed, regardless of whether the subject is contraception, abortion, Medicaid expansion, or pretrial detention.
This Article is unique in discussing the circumstances in which the Court has simultaneously concluded that the state could regulate but could not punish, even if that means redefining a sanction as not punitive. By making visible this framework, we offer the Court and the states a potential off-ramp from the continuation of an ugly and litigious future on abortion access. If the Supreme Court seeks to deflect the outrage over Dobbs, the simplest way to do so would be to take seriously the statement that all it has to do is to return the issue to the states. In that case, the Court’s focus should be, as Justice Kavanaugh suggested in his concurrence, on the impermissibility of punishment that infringes on established rights, independent of a right to abortion, such as the right to travel, the First Amendment right to communicate accurate information about abortion availability, or doctors’ efforts to perform therapeutic abortions necessary to preserve a pregnant person’s health. The Court would not pass judgment on the permissibility of abortion, and it could affirm the propriety of state bans, but still strike down heavy-handed prosecutions and ill-defined prohibitions that impose undue penalties.
After Dobbs v. Jackson Women’s Health Organization, this Article is particularly important for three reasons. First, this Article examines the ways in which the Court has used considerations of punishment to deflect irreconcilable values clashes. Second, a focus on punishment often illuminates the “dark side” of government action, justifying limits on such actions. Third, a focus on “punishment” often illustrates the consequences of government actions, consequences that may be an indirect result of statutes or regulations but that have disproportionate effects on marginalized communities. Understanding how the Court has used this elusive concept in the past may thus help shape the response to Dobbs
