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Preemption of Police Reform: A Roadblock to Racial Justice
Get PDFIn 2020, nearly half of the largest U.S. cities reoriented municipal spending priorities by directing money from their police budgets to social services; for many cities, these budgetary changes reversed decades of increases. Cities began implementing additional police reforms as well: New York City became the first municipality to end qualified immunity for police officers while San Francisco shifted to deploying crisis response teams, rather than police officers, to respond to mental health calls.
Instead of supporting these critical reforms, some states targeted cities that prioritized racial justice by preempting those cities’ ability to engage in meaningful change. In the 2021 legislative session, ten states proposed at least twenty-four bills to preempt local governments from reducing their municipal law enforcement budgets, five of which ultimately passed. State leaders were transparent that their aim was to quash police reform and racial justice efforts: when signing House Bill 1 into law, Florida Governor Ron DeSantis stated “[t]his bill actually prevents against [sic] local government defunding law enforcement . . . . We’ll be able to stop it at the state level.” However, these preemption efforts have much broader implications than preventing police reforms: in Florida, as many cities face declining revenue this fiscal year, House Bill 1 allows for the takeover of a local budget if any reduction is made to law enforcement spending, including necessary cost-saving measures such as a voluntary early retirement program to freeze hiring across municipal departments. These new preemption measures bring the state into some of the most fundamental functions of municipal governance.
This wave of police reform preemption is relatively new and still limited in scope but should be cause for great concern. These preemption bills are racially targeted, explicitly aiming to stymie collaboration between racial justice activists and local government. And further, these bills are not sound policy, as they directly interfere with local governments’ ability to respond to constituents and manage a municipal department. Rather, these bills are transparently partisan, placing conservative states’ culture wars above the welfare of communities.
Now is the time to pay attention to this new trend in preemption. Only a handful of states have targeted municipal police reform, but if left unchecked, such preemption strategies will likely spread to other states. And without scrutiny, some states will feel emboldened to encroach further on the municipal ability to control and reform police departments
Fashion Forward: How Luxury Brands, Handbags, and NFTs are Shaping the Future of Trademark Law in the Metaverse and Beyond
Get PDFSystemically Important Platforms
No full textRegulating Big Tech is now a matter of intense public debate. We ask how well Big Tech companies fulfill their role as gatekeepers of the public square. We ponder whether their dominant market positions merit an antitrust response. We assess their culpability and complicity in spreading online misinformation and hate. However, in the many normative debates over how Big Tech should use its power, the source of that power remains largely unexamined.
Big Tech, like Big Tobacco before it, is an industry founded on addiction. Although typically “free” to use, the world’s largest digital platforms exploit users’ dopamine pathways to consume as much of their time and conscious attention as possible. Many of the problems currently gripping the public consciousness would be fundamentally less important if these platforms were not powerfully addictive. They would be private problems—issues to be resolved between the company and its users. A key reason they are significant, public problems that society can no longer ignore is that Big Tech has intentionally addicted billions of people.
The business model of many large technology companies, or significant subsidiaries thereof, is built on maximizing the frequency and duration of use, what the industry refers to as “time on device.” In this, they have been remarkably successful. The average American spends just over 40% of their waking hours online, with that number approaching 60% for American teens. A growing body of research problematizes the “choice” to spend this much time online. Today’s dominant digital platforms are intentionally designed to produce structural and functional changes in various regions of the brain and to trigger the same brain reward pathways as nicotine and other addictive drugs. Thus far, such platforms have managed to almost entirely avoid liability for harms associated with their use.
This Article surveys existing tools that may help to combat Big Tech’s addictive design practices. It finds that existing laws and legal duties fail to protect users from exploitation. Accordingly, this Article proposes designating the largest manipulative technology platforms as “systemically important platforms.” Platforms so designated would be legally required to open their platforms to middleware, a type of software that can modify how data is presented. Such middleware would feature a control panel of tools that would enable users to curate their digital experience. In addition, these platforms would be subject to increased tax burdens and enhanced regulatory scrutiny with the goal of curbing manipulative design practices and providing billions of users with greater agency
Saying What the Law Should Be
No full textRecent years have seen a resurgence of the view that the role of the federal courts is to declare what the law is, not what the law should be. Scholars and judges, including a majority of the current U.S. Supreme Court justices, have expressed this view that the law is fixed at its creation and the function of courts is to declare its meaning. But this view is inaccurate. Descriptively, federal courts often say what the law should be. Judges fashion common law, inject their views into interpretations, and issue opinions that do not merely describe the law but have independent legal authority. Moreover, various legal doctrines—such as Chevron deference and rational basis review—operate on the assumption that the law is not fixed but can be changed by courts and others. The saying is also normatively inaccurate. Federal courts often should make law. For example, the primary role assigned to the Supreme Court is to settle the meaning of unclear law, and often that settlement depends on evaluations of what the law should be rather than merely what it “is.” Persisting with the fiction that the role of the courts is “to say what the law is”—instead of actually acknowledging the lawmaking role of the judiciary— undermines judiciary legitimacy, encumbers the judicial lawmaking process, and unduly shifts accountability to others for judicial decisions
More Money More Problems: Examining the Impact of the Anti-Money Laundering Act of 2020 on Banks and Regulators
Get PDFCollege Campuses as First Amendment Combat Zones and Free-Speech Theaters of the Absurd: The High Price of Protecting Extremist Speakers for Shouting Matches and Insults
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Automated Legal Guidance at Federal Agencies
Get PDFWhen individuals have questions about Federal benefits, services, and legal rules, they are increasingly seeking help from government chatbots, virtual assistants, and other automated tools. Current forms of automated legal guidance platforms include the U.S. Citizenship and Immigration Services’s “Emma,” the U.S. Department of Education’s “Aidan,” and the Internal Revenue Service’s “Interactive Tax Assistant.” Most scholars who have studied artificial intelligence and Federal government agencies have not focused on the government’s use of technology to offer guidance to the public. The absence of scholarly attention to automation as a means of communicating government guidance is an important gap in the literature, given the strong influence that these communications can have on individuals’ decisions about the law.
This Report describes the results of a qualitative study of automated legal guidance across the Federal government, which included semi-structured interviews with both agency technology experts and lawyers. This study was conducted under the auspices of the Administrative Conference of the United States (ACUS). During our study, we reviewed the automated legal guidance activities of all Federal agencies and conducted in-depth research on agencies that are already using well-developed chatbots, virtual assistants, or other related tools to assist the public in understanding or following relevant law. After identifying the agencies that are primary adopters of automated legal guidance, we conducted interviews with multiple individuals from each agency, as well as representatives from the U.S. General Services Administration.
We find that automated legal guidance offers agencies an inexpensive way to help the public navigate through complex legal regimes. However, we also find that automated legal guidance may mislead members of the public about how the law will apply in their individual circumstances. In some cases, agencies exacerbate this problem by, among other things, making guidance seem more personalized than it is, not recognizing how users may rely on the guidance, and not adequately disclosing that the guidance cannot be relied upon as a legal matter. In many respects, this is not a problem of agencies’ own making. Rather, agencies are faced with the difficult task of translating complex statutory and regulatory regimes for a public that has limited capacity to understand them. Agencies also often lack sufficient resources to engage in more personalized outreach. Fundamentally, we identify a tension between agencies’ reasonable desires to promote automated legal guidance and its underappreciated limitations.
In this Report, after exploring these challenges, we chart a path forward. We offer policy recommendations, organized into five categories: transparency; reliance; disclaimers; process; and accessibility, inclusion, and equity. We believe this Report, and the detailed policy recommendations that flow from it, will be critical for evaluating existing, as well as future, development of automated legal guidance by governments