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Full-Text Articles in Law

The Auditing Imperative For Automated Hiring, Ifeoma Ajunwa Mar 2021

The Auditing Imperative For Automated Hiring, Ifeoma Ajunwa

AI-DR Collection

The high bar of proof to demonstrate either a disparate treatment or disparate impact cause of action under Title VII of the Civil Rights Act, coupled with the “black box” nature of many automated hiring systems, renders the detection and redress of bias in such algorithmic systems difficult. This Article, with contributions at the intersection of administrative law, employment & labor law, and law & technology, makes the central claim that the automation of hiring both facilitates and obfuscates employment discrimination. That phenomenon and the deployment of intellectual property law as a shield against the scrutiny of automated systems combine to form ...


The Invisible Web At Work: Artificial Intelligence And Electronic Surveillance In The Workplace, Richard A. Bales, Katherine Vw Stone Oct 2020

The Invisible Web At Work: Artificial Intelligence And Electronic Surveillance In The Workplace, Richard A. Bales, Katherine Vw Stone

AI-DR Collection

Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. These tools enable employers to record their workers’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (A-I) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well ...


The Paradox Of Automation As Anti-Bias Intervention, Ifeoma Ajunwa Sep 2020

The Paradox Of Automation As Anti-Bias Intervention, Ifeoma Ajunwa

AI-DR Collection

A received wisdom is that automated decision-making serves as an anti-bias intervention. The conceit is that removing humans from the decision-making process will also eliminate human bias. The paradox, however, is that in some instances, automated decision-making has served to replicate and amplify bias. With a case study of the algorithmic capture of hiring as heuristic device, this Article provides a taxonomy of problematic features associated with algorithmic decision-making as anti-bias intervention and argues that those features are at odds with the fundamental principle of equal opportunity in employment. To examine these problematic features within the context of algorithmic hiring ...


Is Algorithmic Affirmative Action Legal?, Jason R. Bent Apr 2020

Is Algorithmic Affirmative Action Legal?, Jason R. Bent

AI-DR Collection

This Article is the first to comprehensively explore whether algorithmic affirmative action is lawful. It concludes that both statutory and constitutional antidiscrimination law leave room for race-aware affirmative action in the design of fair algorithms. Along the way, the Article recommends some clarifications of current doctrine and proposes the pursuit of formally race-neutral methods to achieve the admittedly race-conscious goals of algorithmic affirmative action.

The Article proceeds as follows. Part I introduces algorithmic affirmative action. It begins with a brief review of the bias problem in machine learning and then identifies multiple design options for algorithmic fairness. These designs are ...


Treating Professionals Professionally: Requiring Security Of Position For All Skills-Focused Faculty Under Aba Accreditation Standard 405(C) And Eliminating 405(D), J. Lyn Entrikin, Lucy Jewel, Susie Salmon, Craig T. Smith, Kristen K. Tiscoine, Melissa H. Weresh Jan 2020

Treating Professionals Professionally: Requiring Security Of Position For All Skills-Focused Faculty Under Aba Accreditation Standard 405(C) And Eliminating 405(D), J. Lyn Entrikin, Lucy Jewel, Susie Salmon, Craig T. Smith, Kristen K. Tiscoine, Melissa H. Weresh

Faculty Publications

No abstract provided.


The Value Of An Academic Law Library In The 21st Century, Anne Klinefelter Jan 2020

The Value Of An Academic Law Library In The 21st Century, Anne Klinefelter

Faculty Publications

Law school deans and university provosts may ask how law libraries can deliver value as new technologies, practices, and economic pressures inspire reassessment of legal education and of higher education more generally. The proliferation of information delivery systems, trends towards centralized management of higher education infrastructure, and changes in the law practice market suggest that the traditional law library may not meet current needs. But law libraries have the potential and opportunity to deliver strong value in this environment due largely to the sophistication of today's law librarians. The law library can be a center for expertise that can ...


The Ends And Means Of Decarbonization: The Green New Deal In Context, Jonas J. Monast Jan 2020

The Ends And Means Of Decarbonization: The Green New Deal In Context, Jonas J. Monast

Faculty Publications

Disputes about climate policy involve much more than whether or not to reduce greenhouse gas emissions. There is general agreement among proponents of climate policy that strategies should be cost effective, address distributional impacts, and incentivize investments in low-carbon technologies. Yet disagreements abound regarding additional goals of climate policy design.

Decarbonizing the economy means changing the sources of energy we use, how we transport people and products, how we produce food, and which resources we consume. Yet even among proponents of federal climate legislation there is strong disagreement regarding policy instruments. Recent proposals for a revenue-neutral carbon tax and a ...


Picking Prosecutors, Carissa Byrne Hessick, Michael Morse Jan 2020

Picking Prosecutors, Carissa Byrne Hessick, Michael Morse

Faculty Publications

The conventional academic wisdom is that prosecutor elections are little more than empty exercises. Using a new, national survey of local prosecutor elections — the first of its kind — this Article offers a more complete account of the legal and empirical landscape. It confirms that incumbents are rarely contested and almost always win. But it moves beyond extant work to consider the nature of local political conflict, including how often local prosecutors face any contestation or any degree of competition. It also demonstrates a significant difference in the degree of incumbent entrenchment based on time in office. Most importantly, it reveals ...


The Paradox Of Automation As Anti-Bias Intervention, Ifeoma Ajunwa Jan 2020

The Paradox Of Automation As Anti-Bias Intervention, Ifeoma Ajunwa

Faculty Publications

A received wisdom is that automated decision-making serves as an anti-bias intervention. The conceit is that removing humans from the decision-making process will also eliminate human bias. The paradox, however, is that in some instances, automated decision-making has served to replicate and amplify bias. With a case study of the algorithmic capture of hiring as a heuristic device, this Article provides a taxonomy of problematic features associated with algorithmic decision-making as anti-bias intervention and argues that those features are at odds with the fundamental principle of equal opportunity in employment. To examine these problematic features within the context of algorithmic ...


Protecting The Role Of The Press In Times Of Crisis, Mary-Rose Papandrea Jan 2020

Protecting The Role Of The Press In Times Of Crisis, Mary-Rose Papandrea

Faculty Publications

Part I of this Article will discuss defamation law with a focus on the Court’s decision in New York Times Co. v. Sullivan. This decision “constitutionalized” the common law tort of defamation and dealt a death blow to a series of lawsuits by southern government officials aimed at silencing the publication.14 The decision has since provided an essential foundation for press freedom for over fifty years. At the same time, because the decision did not grant the press (or the public generally) absolute immunity for the publication of defamatory information about matters of public concern, speakers potentially face ...


Legal Writing's Harmful Psyche, Kevin Bennardo Jan 2020

Legal Writing's Harmful Psyche, Kevin Bennardo

Faculty Publications

This essay proceeds in four parts. It first supports the descriptive claim that many in the legal writing discipline perceive themselves as victims of unfair treatment within legal academia. Second, it explores the consequences of that self-perception, including the norm of protectionism that has developed within the discipline. The narrative that legal writing professors are mistreated by those outside the discipline has resulted in an internal culture in which many members of the discipline support their own no matter what.

Third, the essay explores how such protectionism is harmful to the development of the legal writing discipline. An academic discipline ...


Bot Contracts, Deborah R. Gerhardt, David Thaw Jan 2020

Bot Contracts, Deborah R. Gerhardt, David Thaw

Faculty Publications

In this Article, we explain why the transactions commonly known as “smart contracts” are better understood as “bot contracts.” Taking an interdisciplinary approach, we show why the “smart contracts” moniker is misdescriptive in two important ways. First, these transactions are automated, not smart. Second, they do not afford parties many enforcement rights and defenses that one expects from common law contractual relationships. To fully understand these transactions, it is important to appreciate how the term “smart contracts” differs from what the technology delivers.

Our review of the technology explains that these transactions have tremendous practical utility in reducing risk and ...


Internet Service Provider Liability For Disseminating False Information About Voting Requirments And Procedures, William P. Marshall Jan 2020

Internet Service Provider Liability For Disseminating False Information About Voting Requirments And Procedures, William P. Marshall

Faculty Publications

This Article will examine the constitutionality of deceptive campaign practices acts under the First Amendment. It will also take the analysis one step further by analyzing whether Internet service providers may be held liable for the deceptive campaign messages posted by their customers and users, similar to the way that providers can be held liable for instances of copyright infringement posted by their customers and users.


Legal Calculators And The Tax System, Joshua D. Blank, Leigh Z. Osofsky Jan 2020

Legal Calculators And The Tax System, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

Legal calculators often embody a characteristic that can be termed “simplexity.” As we have theorized, simplexity occurs when the government presents clear and simple explanations of the law without highlighting its underlying complexity or reducing this complexity through formal legal changes. In earlier work, we have argued that some elements of IRS publications (plain language summaries of the law for the general public) present contested tax law as clear tax rules, add administrative gloss to the tax law, and fail to fully explain the tax law.

In this Article, we show that simplexity also occurs when the government offers legal ...


The First Anti-Sanctuary Law: Proposition 187 And The Transformation Of Immigration Enforcement, Rick Su Jan 2020

The First Anti-Sanctuary Law: Proposition 187 And The Transformation Of Immigration Enforcement, Rick Su

Faculty Publications

Anti-sanctuary efforts are sweeping the country, as the federal government and a growing number of states impose stringent restrictions on the ability of cities and other localities to limit their involvement in federal immigration enforcement. Many are now wondering how far this movement will go. But where and how did this movement begin? This Essay argues that the roots of the contemporary anti-sanctuary movement can be traced to Proposition 187, a ballot initiative adopted by California voters in 1994. As the nation’s first anti-sanctuary law, Proposition 187 established the basic provisions featured in nearly every anti-sanctuary measure enacted since ...


Korematzu, Hirabayashi, And The Second Monster, Eric L. Muller Jan 2020

Korematzu, Hirabayashi, And The Second Monster, Eric L. Muller

Faculty Publications

It is a trope at least as old as Beowulf: the unexpected second monster. Beowulf arrives in Heorot to take on Grendel, the demon who has been terrorizing the Ring-Danes’ mead-hall. He bests the monster in battle and Grendel slinks off, one-armed and bloodied, to die. The Ring-Danes honor Beowulf with a great banquet; he has slaughtered their nemesis and there is much to celebrate. Full of mead and a newfound sense of safety, the revelers drift off to sleep. That is when a terrible new monster bursts upon the scene—Grendel’s mother, the beast that brought Grendel into ...


Agency Legislative Fixes, Leigh Z. Osofsky Jan 2020

Agency Legislative Fixes, Leigh Z. Osofsky

Faculty Publications

Legislative drafting mistakes can upset statutory schemes. The Affordable Care Act was nearly undone by such mistakes. The recent Tax Cuts and Jobs Act is rife with them. Traditional legal scholarship has examined whether courts should help resolve Congress’ mistakes. But courts have remained stubbornly resistant to implementing fixes.

In the face of legislative error and judicial inaction, administrative agencies have taken it upon themselves to fix legislative drafting mistakes.

This Article provides the first comprehensive analysis of these “agency legislative fixes.” It identifies features and complexities of such fixes that existing scholarship does not capture. It also describes the ...


The Great Unfulfilled Promise Of Tinker, Mary-Rose Papandrea Dec 2019

The Great Unfulfilled Promise Of Tinker, Mary-Rose Papandrea

Faculty Publications

The most famous line from Tinker v. Des Moines Independent School District is that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 393 U.S. 503, 506. People who know only this line from Tinker—and the victory it gave to the Vietnam-war protesting students—likely think of it as an incredibly speech-protective decision. It turns out that although Tinker contains lofty language about the importance of student speech rights, it sowed the seeds for the erosion of those very same rights. In ...


"Surviving Through Together": Hunger, Poverty And Persistence In High Point, North Carolina, Heather Hunt, Gene R. Nichol Oct 2019

"Surviving Through Together": Hunger, Poverty And Persistence In High Point, North Carolina, Heather Hunt, Gene R. Nichol

Faculty Publications

No abstract provided.


(Under)Enforcement Of Poor Tenants' Rights, Kathryn A. Sabbeth Oct 2019

(Under)Enforcement Of Poor Tenants' Rights, Kathryn A. Sabbeth

Faculty Publications

Millions of tenants in the United States reside in substandard housing conditions ranging from toxic mold to the absence of heat, running water, or electricity. These conditions constitute blatant violations of law. The failure to maintain housing in habitable condition can violate the warranty of habitability, common law torts, and, in some cases, consumer protection and antidiscrimination statutes. Well-settled doctrine allows for tenants’ private rights of action and government enforcement. Yet the laws remain underenforced.

This Article demonstrates that the reason for the underenforcement is that the tenants are poor. While the right to safe housing extends to all tenants ...


The Myth Of Common Law Crimes, Carissa Byrne Hessick Sep 2019

The Myth Of Common Law Crimes, Carissa Byrne Hessick

Faculty Publications

Conventional wisdom tells us that, after the United States was founded, we replaced our system of common law crimes with criminal statutes and that this shift from common law to codification vindicated important rule-of-law values. But this origin story is false on both counts. The common law continues to play an important role in modern American criminal law, and to the extent that it has been displaced by statutes, our justice system has not improved. Criminal statutes regularly delegate questions about the scope of criminal law to prosecutors, and judges have failed to serve as a check on that power ...


Future Work, Jeffrey M. Hirsch Jul 2019

Future Work, Jeffrey M. Hirsch

AI-DR Collection

The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains ...


Algorithms At Work: Productivity Monitoring Applications And Wearable Technology As The New Data-Centric Research Agenda For Employment And Labor Law, Ifeoma Ajunwa Jul 2019

Algorithms At Work: Productivity Monitoring Applications And Wearable Technology As The New Data-Centric Research Agenda For Employment And Labor Law, Ifeoma Ajunwa

AI-DR Collection

Recent work technology advancements such as productivity monitoring platforms and wearable technology have given rise to new organizational behavior regarding the management of employees and also prompt new legal questions regarding the protection of workers’ privacy rights. In this Essay, I argue that the proliferation of productivity monitoring applications and wearable technologies will lead to new legal controversies for employment and labor law. In Part I, I assert that productivity monitoring applications will prompt a new reckoning of the balance between the employer’s pecuniary interests in monitoring productivity and the employees’ privacy interests. Ironically, such applications may also be ...


Bias In, Bias Out, Sandra G. Mason Jun 2019

Bias In, Bias Out, Sandra G. Mason

AI-DR Collection

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment ...


Communication Addressing North Carolina’S Role In The Cia’S Extraordinary Rendition And Torture Program And Request For Coordinated Measures Including State Visit, Investigations, And International Condemnation, Deborah M. Weissman Jun 2019

Communication Addressing North Carolina’S Role In The Cia’S Extraordinary Rendition And Torture Program And Request For Coordinated Measures Including State Visit, Investigations, And International Condemnation, Deborah M. Weissman

Faculty Publications

No abstract provided.


The Prosecutors And Politics Project Study Of Campaign Contributions In Prosecutorial Elections, Carissa B. Hessick, Prosecutors And Politics Project Jun 2019

The Prosecutors And Politics Project Study Of Campaign Contributions In Prosecutorial Elections, Carissa B. Hessick, Prosecutors And Politics Project

Faculty Publications

The Prosecutors and Politics Project has compiled a database that identifies who contributed to prosecutor elections and the amount of their donations. Campaign contribution information is often publicly available, but the format of that information varies from state to state, the information is often scattered across multiple sources and the information is sometimes incomplete. The Project has compiled this fragmented data into a single nationwide database that will allow sustained study about who contributes to prosecutor campaigns and the amount of contributions.

This report summarizes and analyzes some of the data from the database. The report will be updated as ...


Owning Colors, Deborah R. Gerhardt, John Mcclanahan Lee Jun 2019

Owning Colors, Deborah R. Gerhardt, John Mcclanahan Lee

Faculty Publications

Part I of this article explores how different disciplines have contended with understanding color as a signifier of embodied and referential meaning. As a path towards understanding embodied meaning, we summarize what scientific literature teaches about the process behind color vision and biological responses to different color wavelengths. We then turn to the referential or learned meaning of colors. The scholarly literature from psychology, art, religious history, marketing, political science, and behavioral economics overwhelmingly supports the proposition that color sends varied and contradictory expressive signals that are elastic over time and cultural context. Given the many possible and contradictory messages ...


Report On Reparations For Victims Of Extraordinary Rendition And Torture, Deborah M. Weissman Jun 2019

Report On Reparations For Victims Of Extraordinary Rendition And Torture, Deborah M. Weissman

Faculty Publications

No abstract provided.


Quasi-Sovereign Standing, F. Andrew Hessick May 2019

Quasi-Sovereign Standing, F. Andrew Hessick

Faculty Publications

This essay proceeds in five Parts. Part I describes the three strands of state standing. It focuses particularly on parens patriae standing to assert quasi-sovereign interests. Part II criticizes the parens patriae framework. It argues that states hold quasi-sovereign interests and accordingly should have direct standing to assert them. Part III argues that states should be able to assert these interests against the United States because of the unique role that states play in our federal system. Part IV argues that recognizing state standing to bring these suits is consistent with the separation of powers theories underlying standing doctrine. Part ...


The Interior Structure Of Immigration Enforcement, Eisha Jain May 2019

The Interior Structure Of Immigration Enforcement, Eisha Jain

Faculty Publications

Deportation dominates immigration policy debates, yet it amounts to a fraction of the work the immigration enforcement system does. This Article maps the interior structure of immigration enforcement, and it seeks to show how attention to its structure offers both practical and conceptual payoffs for contemporary enforcement debates. First, deportation should not be conceptualized as synonymous with immigration enforcement; rather, it is merely the tip of a much larger enforcement pyramid. At the pyramid’s base, immigration enforcement operates through a host of initiatives that build immigration screening into common interactions, such as with police and employers. Second, this enforcement ...