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The Input Fallacy
Get PDFAlgorithmic credit pricing threatens to discriminate against protected groups. Traditionally, fair lending law has addressed such threats by scrutinizing inputs. But input scrutiny has become a fallacy in the world of algorithms. Using a rich dataset of mortgages, I simulate algorithmic credit pricing and demonstrate that input scrutiny fails to address discrimination concerns and threatens to create an algorithmic myth of colorblindness. The ubiquity of correlations in big data combined with the flexibility and complexity of machine learning means that one cannot rule out the consideration of protected characteristics, such as race, even when one formally excludes them. Moreover, using inputs that include protected characteristics can in fact reduce disparate outcomes. Nevertheless, the leading approaches to discrimination law in the algorithmic age continue to commit the input fallacy. These approaches suggest that we exclude protected characteristics and their proxies and limit algorithms to pre-approved inputs. Using my simulation exercise, I consider these approaches. I demonstrate that they fail on their own terms, are unfeasible, and overlook the benefits of accurate prediction. These failures are particularly harmful to marginalized groups and individuals because they threaten to perpetuate their historical exclusion from credit and, thus, from a central avenue to greater prosperity and equality. I argue that fair lending law must shift to outcome-focused analysis. When it is no longer possible to scrutinize inputs, outcome analysis provides the only way to evaluate whether a pricing method leads to impermissible disparities. This is true not only under the legal doctrine of disparate impact, which has always cared about outcomes, but also under the doctrine of disparate treatment, which has historically avoided examining disparate outcomes. Now, disparate treatment too can no longer rely on input scrutiny and must be considered through the lens of outcomes. I propose a new framework that regulatory agencies, such as the Consumer Financial Protection Bureau, can adopt to measure disparities and fight discrimination. This proposal charts an empirical course for antidiscrimination law in fair lending and also carries promise for other algorithmic contexts, such as criminal justice and employment
Lifting Labor’s Voice: A Principled Path Toward Greater Worker Voice and Power Within American Corporate Governance
Get PDFIn view of the decline in gainsharing by corporations with American workers over the last forty years, advocates for American workers have expressed growing interest in allowing workers to elect representatives to corporate boards. Board level representation rights have gained appeal because they are a highly visible part of codetermination regimes that operate in several successful European economies, including Germany’s, in which workers have fared better. But board level representation is just one part of the comprehensive codetermination regulatory strategy as it is practiced abroad. Without a coherent supporting framework that includes representation from the ground up, as is provided for by works councils in the European Union, representation from the top down is unlikely to be successful. This Article begins the work of fleshing out a principled and contextually fitting approach to reform that would allow for greater worker voice within the American corporate structure. After establishing the basics of how codetermination operates in the EU, the Article addresses the challenges facing even a minimal codetermination regime in the United States, tackling issues that reformers have not yet addressed. It then suggests a broader set of reforms that would increase worker voice and improve worker wellbeing now, while facilitating the eventual adoption of an effective and efficient system of board level representation for American workers
Size Matters (Even If the Treasury Insists It Doesn’t): Why Small Taxpayers Should Receive a De Minimis Exemption from the GILTI Regime
Get PDFThe Tax Cuts & Jobs Act drastically altered the U.S. international tax landscape. Among its most significant changes is the implementation of the Global Intangible Low-Taxed Income (GILTI) regime. GILTI attempts to increase the U.S. tax base by preventing both the offshoring of intangible assets and the avoidance of U.S. tax. Though aimed at large multinational corporations, GILTI also applies to small businesses. Through inordinately complex methods, GILTI mandates controlled foreign corporations to artificially reverse engineer their intangible income, and it requires the U.S. shareholders of those corporations to include that artificial amount in gross income. GILTI also imposes new, onerous reporting requirements that are applicable from the first dollar of income. When the Treasury proposed its GILTI regulations, small taxpayers asked for relief. But the Treasury balked, using loopholes within the Regulatory Flexibility Act to avoid legally mandated analysis on the effects of its regulations on small businesses. This Note discusses the incongruity of the GILTI regime’s purposes with its effects on U.S. citizens who reside abroad and own a business. It argues that either Congress or the Treasury should implement a de minimis exception to render GILTI a better reflection of its purpose. And it makes two main contributions to the literature on statutory interpretation of the tax code, the literature on emigrant taxation, and the literature on the Tax Cuts & Jobs Act. First, it contextualizes the GILTI regime from conception to present day and grounds calls for a de minimis exception within the statutory interpretation landscape. Second, this Note proposes an analytical framework for the application of de minimis exceptions in the regulatory and legislative context
Nonpartisan Supreme Court Reform and the Biden Commission
Get PDFPrior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars and lawyers, the Commission was charged with drafting a report that would describe and analyze historical and current debates about reforming the Court. The eventual report seemed to make few observers happy. It reached few firm conclusions on the legality of any reform proposals and even fewer conclusions on any reform’s merits. It was hard to imagine that any commission could deliver recommendations that would persuade political actors of both parties of the need for major reforms. But was the idea behind the Biden Commission wrong-headed? That is, is the very notion of nonpartisan Supreme Court reform mistaken? This Essay tries to answer this question. Building on my testimony before the Commission, I try to develop a plausible nonpartisan argument for reforming the Supreme Court: an argument why one could conclude that the current structure of the Court is flawed and needs to be changed, without regard to the current partisan balance of power on the Court. I briefly categorize and describe possible responses to that problem. I then discuss the Commission’s efforts—and failures—to build bipartisan support for Supreme Court reform. Finally, I use the Commission as a springboard for discussing the difficult obstacles for nonpartisan structural reform of the Court in our polarized system
You\u27re Fired : Criminal Use of Presidential Removal Power
Get PDFIf Donald Trump wins the 2024 election, his first order of business would be to use his power as president to halt the criminal investigations against him. In the case of federal indictments, he would likely begin by removing the special counsel, and then proceeding to remove anyone else who had control over the investigations or prosecutions. Such removal would likely constitute the crime of obstruction of justice. May a President do this? This Article addresses a narrow but critically important aspect of presidential authority: the intersection between the President’s power to remove executive branch officers and criminal laws that are generally applicable to both officeholders and non-officeholders alike. The Article asks whether a President can freely exercise his removal power under Article II, even when in so doing he commits a crime. The core case is the situation described above, namely that of a President under investigation who exercises his removal power to fire the special counsel or federal prosecutor in charge of that investigation. Can the President be charged with obstruction of justice under such circumstances? Can the President remove an appointee who refuses to work on behalf of his reelection campaign, even though it is a crime for anyone—including a President—to order or coerce a federal employee to engage in partisan politics? Can a President remove Department of Justice officials who refuse to declare him the winner of a legally valid election he in fact lost? Can he remove military officers who refuse to obey illegal orders to seize ballot boxes to overturn the election, replacing them with officers who will? These are all felonies under federal law: obstruction of justice, coercion of political activity, using the military to interfere with federal elections, seditious conspiracy, and more. But a President who argues that he truly has unlimited power to remove federal officers will say that criminal statutes are subordinate to a President’s powers under Article II of the U.S. Constitution, and that this includes the power to fire federal officers who refuse to comply with his orders, including those conducting investigations into presidential misconduct. This Article examines the presumed theoretical and constitutional basis for such an expansive approach to presidential removal powers. It also addresses the separate but related question of whether a President’s removal of a federal officer is void if the removal is performed in furtherance of a crime
A Moral and Legal Imperative to Act: The Bail Bond Industry, Consumer Protection, and Public Enforcers
Get PDFBail is not a fine, and it is not a punishment. In theory, bail serves a simple goal: it ensures an accused defendant will appear at their criminal hearings. Yet, as practiced, the American bail system is insidious. Bail bond agencies exploit their grossly unequal bargaining power, depress consumer access to comparative information, employ contracts with terms unreasonably favorable to the company’s interests, and conceal extreme contract terms in confusing legal jargon. As a result, common bail industry practices trap consumers in debt cycles under unconscionable bail bond contracts simply because families cannot afford the cash bail payment needed to maintain their loved ones’ pretrial freedom. For decades, the bail industry’s forceful lobbying tactics have largely blocked legislation seeking to regulate the industry or eradicate it entirely. The industry’s well-financed lobbying campaigns succeed by framing and distorting public perception to ensure harmed consumers are viewed narrowly as dangerous or likely guilty “bad guys” while bail agencies are viewed as “heroes” or scrappy small businesses surviving on thin margins in service of greater civic and public safety aims. It is under this enduring narrative that the for-profit bail bond industry has marched itself into its current reality: an underregulated and nearly risk proof industry which amasses an estimated $2 billion in profits annually by subjecting American consumers to physical, emotional, and financial harm. This Note argues state laws prohibiting unfair or deceptive acts or practices provide a powerful path to curb bail industry abuses; however, private litigation alone is an incomplete solution. Public enforcers like state attorneys general are well-suited to bolster recent private litigation efforts to regulate and control bail industry abuses at a systemic level. This Note concludes state attorneys general hold both a moral imperative and the legal authority to investigate and litigate consumer abuses perpetuated by bail bond companies under a consumer protection legal theory