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Algorithmic Governance from the Bottom Up
Get PDFArtificial intelligence and machine learning are both a blessing and a curse for governance. In theory, algorithmic governance makes government more efficient, more accurate, and more fair. But the emergence of automation in governance also rests on public-private collaborations that expand both public and private power, aggravate transparency and accountability gaps, and create significant obstacles for those seeking algorithmic justice. In response, a nascent body of law proposes technocratic policy changes to foster algorithmic accountability, ethics, and transparency.This Article examines an alternative vision of algorithmic governance, one advanced primarily by social and labor movements instead of technocrats and firms. The use of algorithmic governance in increasingly high-stakes settings has generated an outpouring of activism, advocacy, and resistance. This mobilization draws on the same concerns that animate budding policy responses. But social and labor movements offer an alternative source of constraints on algorithmic governance: direct resistance from the bottom up. These movements confront head-on the entanglement of economic power, racial hierarchy, and government surveillance. Using three case studies, this Article explores how tech workers and social movements are resisting and mobilizing against technologies that expand surveillance and funnel wealth to the private sector. Each case study illustrates how the intermingling of state and private power has required movements to engage both within and outside firms to counteract the growing appeal of automation. Yet the dominant approaches to regulating the government’s uses of technology continue to afford a privileged role to private firms and elite institutions, sidelining movement demands. The fundamental challenge posed by these movements will be whether—and how—law and policy can accommodate demands for bottom-up control. This Article sketches a new vision for algorithmic accountability, with a more vibrant role for workers and for the public in determining how firms and government institutions work together
Steering Loan Modifications Post-Pandemic
Get PDFAs part of federal and state relief programs created during the COVID-19 pandemic, many American households received pauses on their largest debts, particularly on mortgages and student loans. Others may have come to agreements with their lenders, likewise pausing or altering payment on other debts, such as auto loans and credit cards. This relief allowed households to allocate their savings and income to necessary expenses, like groceries, utilities, and medicine. But forbearance does not equal forgiveness. At the end of the various relief periods and moratoria, people will have to resume paying all their debts, the amounts of which may have increased to account for any missed or reduced payments. Yet in the interim months, people have faced persistent unemployment and dwindling household wealth. Many likely will be unable to resume all debt payments, leading them into formal or informal bankruptcy. Incentivizing lenders to work with people to craft successful loan modifications will stave off a swell of bankruptcy filings and economic loss. The 2008 financial crisis showed how poorly prepared creditors were to offer successful debt workouts. Now is the time for policymakers to plan for the coming crash of needed loan modifications across consumer credit products. This Essay sketches a path for how that should be done
Choices: The Many Routes to Justice and Peace with Dispute Resolution, Ethics, and Feminism
Get PDFAs Yogi Berra once said, “When you come to a fork in the road. . . . take it[!]” Our lives present us all with choices—personal and professional. My professional life has been filled with efforts to create more choices of process and ethical and political commitments to seek a more just world. I began as a poverty and civil rights lawyer and sought effective and creative ways to solve problems, notably when court-based solutions were too “brittle” and binary and did not solve the underlying problem. I have looked at legal problem solving through the lens of interdisciplinary approaches to negotiation, diplomacy, mediation, and litigation, and more hybridized forms of dispute resolution and legal problem solving. I have often and proudly challenged conventional notions of adversarial and assumed competitive processes of negotiation and litigation, and I have often asked how other perspectives (feminist, other excluded voices, socio-legal realist) and other disciplines (e.g., political science, sociology, decision sciences, psychology, anthropology, planning, and community and organizational development) might broaden or even alter the way we first frame and then attempt to solve a problem. I have also always applied an ethical (moral, legal, and practical) filter to those choices we make and how we evaluate them.
I am deeply honored by and appreciative of this retrospective and prospective look at my work and how others relate to it as they apply their own thinking to the issues of justice and peace, especially in these troubled times. In this published version of my keynote talk, I hope to continue this inquiry: What are some of the different methods, approaches, frames, and issues to be used to try to create a better world? We have choices and different processes, substantive and ethical pluralism, and we should be mindful of the many ways we can pursue a variety of goals
Designing for Justice: Pandemic Lessons for Criminal Courts
Get PDFMarch 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all the key players in decision-making. This Article suggests that the criminal courts would have been better able to manage the decision-making process if they had been using Dispute System Design (DSD). DSD is a collaborative, inclusive process that would have given the courts an established process for decision making which could have assisted criminal courts to better adapt to new and changing circumstances and to keep a focus on justice in the decision-making process.
This Article argues that the use of Continuity of Operation Plans (“COOP”), as a planning tool, may have reinforced the lack of collaboration in federal and state courts, and reinforced the failure to consider the impact that operational changes may have had on justice. This article gives examples of a variety of changes that the criminal courts adopted to conduct necessary court processes and questions whether the process for decision-making negatively impacted the system’s ability to adapt to the changes COVID-19 demanded. Finally, this Article offers lessons that courts can use from this unparalleled time. This Article proposes that criminal courts adopt Dispute System Design processes as a regular part of their planning which would facilitate inclusive justice focused decision-making in future crises that will undoubtedly also require operational changes
If Past is Prologue, then the Future is Bleak: Contracts, Covid–19, and the Changed Circumstances Doctrines
Get PDFAt the heart of most of the systemic problems currently confronting individuals and businesses as a result of the COVID–19 pandemic is quite literally a contract. Housing. Insurance. Food. Health care. Child care. Employment. Manufacturing. Construction. Supply chains. You name it. Contracts are implicated everywhere. So make no mistake: How contract law addresses these ostensibly private contracts will have profound social consequences. If the past really is prologue, then the future is indeed bleak. The empirical study conducted for this Article establishes what the conventional wisdom has claimed for the last 70 years. More specifically, the empirical study here shows that the common law’s changed circumstances doctrines (“CCDs”)—namely, impossibility, impracticability of performance, and frustration of purpose—will generally not excuse a party from performing his obligations under a contract, regardless of the changed circumstance he alleges. Contrary to all the CCD literature that addresses this issue, this Article makes the unconventional argument that the CCDs should be more broadly available, meaning they should be more successful in excusing contract performance when triggered by catastrophic circumstances. And unlike the rest of the field, which focuses on the CCDs themselves, this Article argues that to effectively address the allocation of unforeseen risks in general and catastrophic risks like a pandemic in particular, we must reframe the legal approach to contract formation. From there, given that the solution to the changed circumstances problem preferred by courts and commentators is an explicit risk-allocation term in the parties’ contract, the solution proposed in this Article to the risk-allocation problem literally suggests itself. A risk-and-loss-allocation clause should be mandated in most contracts as a part of contract formation. The type of risk-and-loss-allocation clause and how the clause would work would depend on whether the contract is co-drafted or adhesive. Generally, the inclusion of a risk-and-loss-allocation clause would facilitate transactions and encourage contracting by ensuring that contracts remain efficient and predictable. The main difference between the risk-and-loss-allocation clause proposed here and existing contract law, of course, is who ends up bearing all the risk and loss occasioned by the catastrophic changed circumstance. To be clear, if nothing changes and our approach to contract formation remains the same as it is right now, then all of the risk and all of the attendant loss will generally be left to lie where it falls—namely, on the party trying to get out of the contract because of the changed circumstances—and this will be the result regardless of the legal theory used to justify (or demonize) the CCDs or any changes made to the doctrines themselves. But if we finally acknowledge the public aspects of contracts and contract law, namely, that they do in fact produce social consequences that extend beyond the individual contract and contracting parties, then contracts and contract law may well be part of the solutions to some of the most pressing problems currently confronting American society now and into the future
Fintech and Anti-Money Laundering Regulation: Implementing an International Regulatory Hierarchy Premised on Financial Innovation
Get PDFInnovations in financial technology (“fintech”) have rippling effects across global markets. Fintech firms utilizing virtual assets and disintermediating blockchain technology continue to rapidly grow in strength and number. As systemic risk mounts due to the inter-jurisdictional nature of fintech, antimony laundering (“AML”) regulators must search for an international answer to maintain global financial stability and protect consumers against illicit activities. A variety of solutions have appeared within local AML regulatory frameworks. These frameworks tend to function as a hierarchy with three ordered objectives: market integrity, rule clarity, and innovation. However, frameworks often place too much emphasis on market integrity and squeeze out the financial innovation inherent in the fintech sector. This Comment argues for an international AML regulatory hierarchy that places paramount importance on the innovative nature of fintech yet still promotes market integrity.
This Comment examines the efficacy of this proposed hierarchy through the AML regulatory frameworks of several offshore financial centers (“OFCs”): Malta, Gibraltar, and Jersey. While OFCs have often been accused of light-touch regulation, they are championing a push into financial innovation with strong regulatory safeguards that maintain market integrity and guard against systemic risk. These AML regulatory frameworks provide support for the Comment’s central argument. The Comment concludes with an examination of methods by which the proposed hierarchy can be implemented. Ultimately, innovation hubs nurture regulatory learning and allow regulators to employ a conglomeration of initiatives such as regulatory sandboxes and mentorship regimes, which can be macro-produced to attain the desired hierarchical outcome
Biotechnology Patent Law Top Ten Of 2020: Valeant Victorious, Falling Eagle, and Successful Slayback
Get PDFThis Article discusses the Top 10 BioTechnology Patent Cases of 2020. Suffice it to say that biotechnology patent law will continue to vigorously evolve, and we plan to continue our coverage of its evolution beyond the current trilogy of Biotechnology Patent Law Top Tens. As in previous years, we admit it was difficult to choose precisely ten top biotechnology patent law decisions. There are certainly others we did not include that warrant close attention for their reasonings, rules, and future implications. Nevertheless, both we and our readers can count, so we have done our best to select what we consider to be the top ten biotechnology patent law decisions of 2020. We discuss these decisions below
The Truth About Design Patents
Get PDFDesign patents are hot. Scholars and policymakers are increasingly focusing on this once-niche area of law. However, many of the empirical studies in this area—including old ones that still get cited—were methodologically questionable from the start, have become outdated, or both. In this Article, we make two sets of contributions to this important and underdeveloped literature. First, we review the empirical studies of design patents thus far, including those that pre- and post-date the creation of the U.S. Court of Appeals for the Federal Circuit, and we update the findings of those studies. Second, we consider a set of institutional questions that, to our knowledge, the prior literature has not even broached. Beyond the federal courts, we explore design patent enforcement at the U.S. International Trade Commission and the use of administrative procedures to challenge design patents in the Patent Trial and Appeal Board. These contributions contextualize the design patent system within the broader debates about U.S. intellectual property policy
Review: The Dialogical Roots of Deduction: Historical, Cognitive, and Philosophical Perspectives on Reasoning
Get PDFThe balance of this review addresses matters in the book that should be of particular interest to readers in the legal rhetoric and communication community. First, it addresses some concepts central to Dutilh Novaes’ effort. Second, it surveys the book’s organization, identifying some key observations and conclusions that she supports with careful evidence and argumentation. Third, it addresses Dutilh Novaes’ attention to non-European and non-Western research and logical traditions. Finally, it considers some difficult and technical passages, noting those readers should work through because the payoff is worth it and others I believe readers in our field might skip