During the Trump Administration, disturbing images of immigration officials forcibly separating parents from their children at the U.S.–Mexico border have rightly invited an onslaught of criticism. Voices across the political spectrum have called these actions immoral and insisted that this is not who we are. The underlying moral imperative of this critique is correct, but this Essay argues that it rests on a mischaracterization of our immigration...
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Introduction No matter how it begins, a police encounter may end in death, especially when the encounter involves people of color. There is no safe haven. Police-involved shootings happen everywhere—on the street, in a parked car, in a public park, or inside one’s own home. Police violence is a constant, its occurrence so predictable that […]
Index funds own an increasingly large proportion of American public companies. The stewardship decisions of index fund managers—how they monitor, vote, and engage with their portfolio companies—can be expected to have a profound impact on the governance and performance of public companies and the economy. Understanding index fund stewardship, and how policymaking can improve it, is thus critical for corporate law scholarship. In this Article...
Introduction An Estonian team is designing an artificially-intelligent (AI) agent to adjudicate claims of €7,000 or less, with the aim of clearing case backlog. The pilot version will focus on contract disputes: An algorithm will analyze uploaded documents to reach an initial decision, which can then be appealed to a human judge. This is but […]
Many legal scholars have explored how courts can apply legal doctrines, such as procedural due process and equal protection, directly to government actors when those actors deploy artificial intelligence (AI) systems. But very little attention has been given to how courts should hold private vendors of these technologies accountable when the government uses their AI tools in ways that violate the law. This is a concerning gap, given that governments...
Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and...
Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Go. What are the prospects for the displacement of human courts as the centerpiece of legal decisionmaking? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of...
Recent advances in machine learning have reinforced the competitive position of leading online platforms. This Essay identifies two important sources of platform rivalry and proposes ways to maximize their competitive potential under existing antitrust law. A nascent competitor is a threatening new entrant that, in time, might become a full-fledged platform rival. A platform’s acquisition of a nascent competitor should be prohibited as an unlawful...
The increasing prevalence of ever-sophisticated technology permits machines to stand in for or augment humans in a growing number of contexts. The questions of whether, when, and how the so-called actions of machines can and should result in legal liability thus will also become more practically pressing. One important set of questions that the law will inevitably need to confront is whether machines can have mental states, or—at least—something...
A recurrent concern about machine learning algorithms is that they operate as “black boxes,” making it difficult to identify how and why the algorithms reach particular decisions, recommendations, or predictions. Yet judges are confronting machine learning algorithms with increasing frequency, including in criminal, administrative, and civil cases. This Essay argues that judges should demand explanations for these algorithmic outcomes....