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Process as Suffering: How U.S. Immigration Court Process and Culture Prevent Substantive Justice
Get PDFIn this article, we argue that there is a form of double punishment unique to the immigration court system that attorneys and their noncitizen clients must navigate throughout changing political contexts. The first form of punishment is the court process during removal proceedings, and the second form of punishment is removal from the United States. Our interviews with removal defense attorneys in the U.S. Upper Midwest illustrate how these punishments intersect with one another and push attorneys to adopt strategies that may not lead to winning a case, but intend to protect their clients by losing as slowly as possible. These strategies reaffirm how the severity of deportation can be so harsh that non-citizens are willing to risk more exacerbated forms of punishment via extended contact with the court process to avoid removal from the United States. Focusing on the process-as-punishment, we explore what limitations there may be to past understandings of how legal stakeholders—i.e., defense attorneys, judges, and prosecutors—mete out and negotiate “just” punishment in U.S. courts
How Privilege Undermines Cybersecurity
Get PDFIn recent years, cyberattacks have cost firms countless billions of dollars, undermined consumer privacy, distorted world geopolitics, and even resulted in death and bodily harm. Rapidly accelerating cyberattacks have not, however, been bad news for many lawyers. On the contrary, lawyers that specialize in coordinating all elements of victims’ incident-response efforts are increasingly in demand. Lawyers’ dominant role in cyber-incident response is driven in part by their purported capacity to ensure that information produced during the breach response process remains confidential, particularly in any subsequent lawsuit. By interposing themselves between their clients and any third party consultants involved in incident response, lawyers can often shield any materials produced after a breach from discovery under either attorney-client privilege or work-product immunity. Moreover, by limiting and shaping the documentation produced by breached firms’ personnel and third-party consultants in the wake of a cyberattack, attorneys can limit the availability of potentially damaging information to plaintiffs’ attorneys, regulators, or media, even if their attorney-client privilege and work-product immunity arguments falter.
Relying on over sixty interviews with a broad range of actors in the cybersecurity landscape — including lawyers, forensic investigators, insurers, and regulators — this Article shows how, in their efforts to preserve the confidentiality of incident-response efforts, lawyers may undermine the long-term cybersecurity of both their clients and society more broadly. We find that lawyers often direct forensic providers to refrain from making recommendations to clients about how to enhance their cyber defenses, restrict direct communications between cybersecurity firms and clients, insist upon hiring cybersecurity firms with limited familiarity with the client’s networks or internal processes, and strictly limit dissemination of the cybersecurity firm’s conclusions to the client’s internal personnel. To ensure their clients do not inadvertently waive any legal confidentiality protections, lawyers also frequently refuse to share any written documentation regarding a breach with third parties like insurers, regulators, and law enforcement. Even worse, we find that law firms overseeing breach investigations increasingly instruct cybersecurity firms not to craft any final report regarding a breach whatsoever.
These practices, we find, may impair the ability of breached firms to learn from cybersecurity incidents and implement long-term remediation measures. Furthermore, such efforts to protect confidentiality inhibit insurers’ capacity to understand the efficacy of different security countermeasures and regulators’ power to investigate cybersecurity incidents. To reverse these trends, the Article suggests that materials produced during incident response should be entitled to confidentiality protections that are untethered from the provision of legal services. But such protections should be coupled with new requirements that firms impacted by a cyberattack disclose specific forensic evidence and analysis. By disentangling the incident-response process from the production of information that can hold firms accountable for failing to take appropriate and required precautions, the Article aims to remove barriers to effective incident response while preserving incentives for firms to take cybersecurity seriously
Artificial Intelligence and the Administrative State: Regulating the Government Use of Decision-Making Technology
Get PDFBurdens of Proof in Establishing Negligence: A Comparative Law and Economics Analysis
Get PDFInherent in any judicial system is the need to allocate the burden of proof on one party. Within the realm of negligence torts, that burden is traditionally placed on the plaintiff, meaning that the plaintiff must bring forth sufficient evidence to establish negligence by the defendant. In effect, this is a legal presumption of non-negligence in favor of the defendant. In some jurisdictions for specific torts, defendants are, instead, presumed negligent, therefore requiring defendants to come forth with sufficient evidence to prove their due diligence. In this paper, we discuss the legal origins and effects of these differences in a comparative law and economics perspective. We explore the interesting interaction between evidence and substantive tort rules in the creation of care and activity level incentives and discuss the ideal scope of application of alternative legal presumptions under modern-age evidentiary technology
Deepfake 2024: Will Citizens United and Artificial Intelligence Together Destroy Representative Democracy?
Get PDFDeepfakes – computer generated counterfeit videos and audios of people saying and doing things they never said or did – are proliferating on social media and increasingly will be used to target candidates in elections. Citizens United v. FEC, and cases decided in its aftermath, have opened the floodgates of dark money funded electioneering communications, and some of this money will be spent on deepfakes made and disseminated by persons unknown. Some deepfakes may originate outside the United States, as they become a new instrument for foreign interference in U.S. elections.
The Federal Election Commission (FEC) has been asked by public interest organizations and members of Congress to do something about deepfakes but has deadlocked on whether to act. Bills are pending in Congress to address the problem, but some of these bills are overbroad and rely on criminal sanctions, exacerbating constitutional problems. No bill addressing deepfakes in elections has passed either house.
Dark money in politics, foreign interference in U.S. elections, and the rise of AI-generated deepfake political ads will become an issue of increasing concern. And, with Congress and the FEC currently deadlocked on pending legislation that could address the problem, the future of U.S. elections remains in jeopardy. However, steps can be taken now to circumvent government inaction. Deepfake political ads could be flagged by publicly or privately funded Deepfake Warnings with a FEC sponsored Deepfake Alert System that could respond quickly to deepfake electioneering communications by identifying them as such in the same social media platforms where they emerge, and other media platforms as well. Enforcement of new regulations prohibiting deepfakes in elections will be hampered by practical and constitutional problems, whereas public and private investment in timely public education about fake video and audio recordings could help reorient voters back toward the real world
State Responsibility for Human Rights Violations Perpetrated in the Name of International Counter-Terrorism Financing Obligations
Get PDFThis Essay responds to the increasing adoption by States across continents of repressive, over-reaching laws, regulations, and policies aimed at countering the financing of terrorism. It documents the immense international pressure to adopt counter-terrorism financing measures, coupled with the seeming marginalization of concurrent international human rights law obligations. The Essay first sets out the applicable legal framework and rapid normative developments in international counter-terrorism financing law. Second, the Essay provides a snapshot of existing allegations of human rights violations committed in the name of international counter-terrorism financing obligations, including judicial harassment and undue surveillance of human rights defenders and civil society organization dissolutions. The Essay concludes by proposing several viable avenues for holding States responsible for such abuses, including before international human rights mechanisms, the, International Court of justice, arbitral tribunals, and national courts
