AI/ML clinical decision support (CDS) tools are a large and important category of medical software at the core of the AI-driven transformation of traditional health care delivery. CDS tools offer recommendations to health care professionals on how to diagnose and treat a patient’s disease. A growing body of scientific literature finds that AI/ML CDS tools exhibit biases that cause them perform more reliably for white male patients than for women, transgender patients, people of color, and persons experiencing economic disadvantages. A celebrated achievement of 21st-century medicine – AI/ML CDS software – threatens to become a new source of invidious discrimination in health care. The problem of bias is widely attributed – and with a large measure of truth – to structural and systemic inequities in U.S. health care. That may not be the entire story, though, and other contributing factors are at work. In particular, the ethical and legal norms with which a society governs access to data for use in training, validating, and regulating AI/ML CDS tools influence how reliable – and how equitably reliable – its recommendations will be.This article marks the 25th anniversary of the Health Insurance Portability and Accountability Act (HIPAA) by exploring whether its major medical privacy regulation, the HIPAA Privacy Rule, may offer a useful set of legal pathways for addressing the problem of bias in CDS tools. The article identifies five legal pathways, available under the Privacy Rule, that could enhance access to diverse, inclusive data sets to train a new generation of more-equitable AI/ML CDS tools. It explores why, 25 years after HIPAA’s inception, these data access pathways continue to be underutilized, contributing to the observed pattern of bias in CDS tools. The Privacy Rule enables data-acquisition practices that could enhance health equity while affording stronger privacy protections than patients enjoy today, yet health data gatekeepers hesitate to embrace these practices amid lingering concern about gaps in the Privacy Rule’s privacy framework. The article concludes that these concerns are valid and proposes specific measures to address them.
Machine learning techniques are transforming the manner in which much of the legal system works, and criminal justice is the area which will be most fundamentally changed. Given the fundamental rights and interests at stake in the criminal justice system, this is also the field where the unthinking application of artificial intelligence (AI) is most troubling, and where there is the greatest threat to individual rights and the likelihood of unanticipated damage to the rule of law. These problems will occur (and are occurring) throughout the criminal justice system: from data-driven predictive policing systems in the criminal investigation process, through to recidivism prediction for parole applications and sentencing recommendation systems post-trial. The risks presented by Al to the proper functioning of the criminal justice system will be exacerbated by commercial pressures on law enforcement and the criminal justice system, partisan political interests, and a lack of technological understanding by the judiciary and the legal profession more generally. Notwithstanding this dystopian vision, there is an opportunity to use AI techniques to improve the detection of crime, prosecute and sentence criminal offenders, help uncover discrimination, ensure parity of treatment across the system, and identify unfair and unjust treatment. The thoughtful and appropriate use of ethical Al systems can greatly assist in the administration of justice and the rule of law. In this Article, we propose a framework for systematically implementing Al into the criminal justice system in order to ensure that the system operates in a normatively enhanced and more effective and efficient manner. In proposing this framework we grapple with the reality that humans have an intrinsic emotional dislike of computers making decisions that have an important impact on peoples' lives.
Over the last decade increased emphasis has been placed on the role that artificial intelligence (AI) will play in disrupting the practice of law. Although considerable attention has been given to the practical task of designing a computer to ‘think like a lawyer’, a number of related issues merit further inquiry. Of these, the risks that AI presents to the constitutionally protected procedural and substantive dimensions of justice deserve particular attention. In this paper, we consider the public and private application of AI in the administration of justice and the provision of legal services. We observe that the imposition of AI in certain legal contexts and settings has the potential to silence discourse between actors and agents, subvert the rule of law, and directly and indirectly threaten constitutional rights. In substantiating these observations, in Part I we begin by contextualizing recent developments in legal technology. Tracing the evolution of rule-based AI approaches through to modern data-driven techniques, in Part II we explore how AI systems have sought to represent law, drawing on the domains of: (a) judicial interpretation and reasoning; (b) bargaining and transacting, and; (c) enforcement and compliance, and we illustrate how these representations have been constrained by the AI approach used. In Part III we assess the use of AI in legal services, focusing specifically on implications that are posed in respect of the protection of constitutional rights and adherence to the rule of law. Finally, in Part IV we examine the pragmatic challenges that arise in balancing the risks and rewards of AI technologies in the legal domain, and we consider the issues that should shape and that are likely to shape use. We conclude by proposing the development of a ‘rule of legal AI’ designed to solidify the shared values that ought to govern future development in the field.
The United States’ election administration system is hyper-decentralized, often overseen by partisan officials, lacks meaningful federal oversight, and is frequently litigated in eleventh-hour disputes before busy federal courts. This imperfect structure does not have to remain this way. Between 1870 and 1894, the federal government regulated elections in an unprecedented fashion. Though riddled with inadequacies, these Enforcement Acts rooted out racially motivated voter suppression and urban voter and election fraud with varying degrees of success. These nineteenth century laws can help inform future pathways of electoral reform. This Article examines how the federal government can constitutionally take a more proactive role in election administration by harnessing the expansive authority the Constitution grants Congress in the Elections Clause and the Fifteenth Amendment. Through the lens of a Modern Enforcement Act (“MEA”) and a Federal Election Administration Agency (“FEAA”), this Article envisions a centralized federal election agency, administrative adjudication of election administration disputes, and citizen-initiated federal election oversight. To varying degrees, these proposals have historical antecedents. Even more, they are constitutional and may provide antidotes to today’s hyperpartisan era of election administration.
Almost one hundred years after announcing that regulations could go too far by confiscating economically viable use, the Supreme Court still faces significant questions about the regulatory takings doctrine. Long before the development of the doctrine, courts mixed narratives of substantive due process and physical takings to evaluate claims of confiscatory regulatory practices. The Court’s 2017 decision in Murr v. Wisconsin adds to the confusion, sending mixed messages and heightening interest in the scope of the doctrine. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to a physical taking, important differences between physical and regulatory takings should be treated as limitations to the degree of equivalence possible and therefore to the scope of the doctrine. The inherent limitations of the regulatory takings doctrine need to be recognized if the doctrine is to remain a viable concept for protecting property rights under the Takings Clause.
2019 marks the silver anniversary of the WTO TRIPS Agreement. Policymakers and commentators remain deeply divided about the strengths and limitations of this agreement. On the hand, they marvel at its success in establishing international minimum standards for the protection and enforcement of intellectual property rights. On the other hand, they widely criticize the agreement for imposing high one size fits all standards upon developing countries. Regardless of one's perspective, the harmonization project advanced by the TRIPS Agreement, and continued through TRIPS-plus bilateral, regional and plurilateral agreements, has been at the forefront of the international intellectual property debate. While this article is interested in exploring this continuously controversial project, the discussion will focus on a topic that international intellectual property scholars have underexplored: the limits to TRIPS harmonization. To help examine these limits, this article focuses on the protection of undisclosed test or other data for pharmaceutical and agrochemical products. It begins by discussing issues on which the TRIPS negotiating parties had achieved consensus or had failed to do so. The article then examines the negotiation of new international minimum standards under the TPP Agreement, the proposed RCEP Agreement and the recently completed United States–Mexico–Canada Agreement (USMCA). The article continues to identify three sets of additional complications that have affected the efforts to develop international minimum standards at both the multilateral and nonmultilateral levels. Specifically, the article examines the arrival of new technologies, new politics and new regimes. It concludes by drawing six distinct lessons regarding the TRIPS harmonization project.
Eight percent — that is the percentage of women who serve on the boards of directors of private high technology companies. Private companies, particularly high technology companies, have transformed citizens’ daily lives, while the unprecedented availability of private capital has allowed those companies to remain private longer. This rise, however, has also obscured some of the weaknesses of private companies, which are not subject to public disclosure and regulatory oversight: rampant sexual harassment, the lack of women leaders in technology companies, the relative absence of female venture capitalists, and the dearth of female board members, to name a few. Yet thus far, legal scholarship on gender diversity on corporate boards has focused almost exclusively on public companies, overlooking the stark lack of women in the vastly wealthy and influential sector of private capital. This Article documents the exclusion of women from the boards of nearly all the major private high technology companies currently influencing American business, and it explains why this male-only hegemony matters. It then offers a new paradigm, the innovation imperative, for creating a business culture in which people of all genders can make valued contributions. This Article analyzes two potential arenas for change: the legal and business realms. It concludes that a combination of legal and business reforms, such as adding inclusion riders to contracts and rethinking certain hiring and networking practices, would pave the way for progress in getting more women on boards.
The Supreme Court concluded in 1909 that a corporation, like an individual, can be held criminally responsible for its misconduct. Yet even now, corporate-criminal liability has yet to overcome the same skeptical argument it faced then — and, for that matter, for centuries prior. The skeptic’s challenge appears as simple as it is persistent: Lacking a mind distinct and independent from its constitutive stakeholders, a corporation cannot produce the sorts of intentional attitudes needed to satisfy the law’s mens rea component. In other words, a corporation is straightforwardly incapable of satisfying one of criminal law’s most basic requirements. Accordingly, to the skeptic the very idea of corporate-criminal liability is, and always has been, pure nonsense. Though it presents as a simple, common-sense challenge to a corporation’s ability to intend — criminally or otherwise — unpacking the skeptic’s critique quickly implicates profound considerations regarding the nature of personhood and proper methods of attribution. Animating the dispute between skeptics and proponents of corporate-criminal liability is a disagreement over how to evaluate personhood, and further how one’s conception of personhood licenses attributions of actions, attitudes, and ultimately responsibility to the entity in question. This brand of disagreement is nothing new: These themes recur throughout Western thought and extend far beyond corporate law, from Plato’s Phaedo to Boethius and Bartolus of Sassoferato, from Thomas Hobbes to John Locke. Given the intellectual lineage behind what is otherwise an ordinary policy disagreement, perhaps it should not be terribly surprising that skepticism about corporate-criminal liability was never put to rest. I don’t expect that we can break this conceptual stalemate all at once, if at all, to solve the challenge facing corporate crime. More to the point, we don’t need to. As it turns out, in taking up this very dispute at the turn of the 20th century, courts and legislature sided with the proponents of corporate crime in a way that the skeptic cannot, or at least should not want to, unwind. The proponents of corporate-criminal liability did not just win the policy fight; they did so in a way that rendered the skeptic’s position incompatible with broader theoretical commitments that are now instrumental to the modern corporation.This Article offers two contributions to the debate over corporate-criminal liability: one conceptual, and one practical. First, the same argument embraced by today’s skeptics was tried but rejected in the late 1800s, when the practice of holding corporations responsible first developed. Courts previously receptive to the skeptic’s reasoning abandoned the view — and more importantly, the relationship between personhood and attribution underwriting it — as increasingly untenable amidst a changing economic environment in which commercial corporations transformed from tiny, narrowly constrained, quasi-state entities to sprawling, sophisticated, dominant participants in the national marketplace. Meanwhile, the gradual embrace of corporate liability, both in tort and crime, is intimately connected to the simultaneous demotion of corporate law as a regulatory tool. The turn towards corporate-criminal liability thus reflects a broader abandonment both of a long-dominant conception of personhood and of an approach to corporate regulation rendered ineffective by the development of what has become the basis for our modern corporate law. In a slogan, corporations today are persons under the criminal law not because they have always been eligible, but rather because they became eligible.Second, a clear theoretical understanding of how and why courts first held corporations criminally responsible has profound consequences for how and why we continue to hold them responsible today. Most directly, recognizing the conditions under which corporations became persons for the purposes of criminal law removes from contemporary debates one complaint with modern practice, and does so without having to resolve some deep metaphysical truth about the ultimate nature of personhood. Today’s skeptic of corporate capacities presupposes an outdated premise about how capacities should be attributed to a person, the abandonment of which is pivotal to creating and maintaining modern corporate law and today’s commercial corporation. Taking seriously the skeptic’s position, on this discovery, threatens to undermine the conceptual foundation integral to a regulatory framework making commercial corporations what they are today. In addition, taking seriously courts’ actual reasoning in holding corporations criminally responsible unearths both a method and rationale for continuing to do so, which is rooted in a constellation of fairness considerations towards individuals that, although mostly lost to history, nevertheless applies more strongly today than ever before. Commitment to this qualified anti-discrimination norm applies at least as powerfully today as it did a century ago: Far from being a once-excusably incoherent, now-superfluous practice, corporate-criminal liability has as much reason to exist today as it did upon inception.
Thousands of persons with severe brain injury who are minimally conscious or “locked in” are wrongly treated as if they are unconscious. Such individuals are unable to advocate for themselves and are typically segregated from society in hospitals or nursing homes. As a result, they constitute a class of persons who often lack access to adequate medical care, rehabilitation, and assistive devices that could aid them in communication and recovery. While this problem is often approached from a medical or scientific point of view, here we frame it as a legal issue amenable to legal remedies. This Article comprehensively explores and analyzes sources of federal, state, and international human rights law that can be leveraged — both in traditional and novel ways — to improve the lives and protect the rights of persons with severe brain injury. We argue that state laws may be the most promising basis for legal action to ameliorate the clinical marginalization and societal neglect faced by persons with severe brain injury, and to promote their recovery and reintegration into their communities.
The common law of contract is an intellectual and political triumph. In its mature form, it enables judges whose ideological goals may differ to apply doctrines that provide the right to make enforceable promises; with legislation, the common law also provides proper limits on that right. Lately, scholars have produced a flood of contract law theory that enriches our thinking about and grounding for contract law norms. But the real work of common law development has always occurred in the trenches — in judicial decisions. In those trenches and on the framework built there, some decisions matter far more than others, and jurists, scholars, and teachers draw on these key decisions to do their work. In the following collection of essays, scholars deeply familiar with judicial opinion in the common law of contract — twenty authors who have a collective 497 years writing, teaching, and thinking about contract law — identify the best and worst of contracts cases. Many of the cases are staple examples for practical and theoretical contracts scholarship. Many are taught to thousands of students each year. Many are routinely cited by courts. The essays explain, rebuke, extol, entertain, and inspire. They are brief but substantive. They set a basis for future commentary and establish a collective standard against which contracts decisions may be judged. They are vital study for contract law adjudication, scholarship, and teaching.
Scholars have recently noted the paucity of scholarship on administrative licenses as especially significant given the prevalence — indeed ubiquity — of administrative licenses today. This Article contributes to filling that void by tackling an aspect of administrative licensing that has received especially little attention and, as a result, has been a source of serious confusion: license renewals. As this Article details, administrative license renewal practices raise interesting and important questions about administrative law and procedural due process. Does one have a property interest in a license after that license expires by its terms? Is an agency’s decision not to renew a license more akin to denying an initial license application or to suspending or revoking an active license? This Article answers these questions and then applies those answers to one particular context — the federal Animal Welfare Act (AWA). Our nation’s most important animal protection law, the AWA governs more than 2.5 million animals held by nearly eleven thousand locations. And yet, by all accounts, it is woefully underenforced. As this Article discusses, that underenforcement is seriously aggravated by the practice of automatically renewing AWA licenses, even in the face of egregious violations. After analyzing recent litigation that has tried to challenge this practice, the Article concludes with policy proposals to address the automatic renewal problem while also assuring fairness.
