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Forthcoming

Volume 78:2

Technological Tethereds: Potential Impact of Untrustworthy Artificial Intelligence in Criminal Justice Risk Assessment Instruments
Author: Sonia M. Gipson Rankin

Abstract:

Issues of racial inequality and violence are front, and center today, as are issues surrounding artificial intelligence (AI).  This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, and Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform.  Myths about Black crime and criminals are embedded in the data collected by AI and do not tell the truth about race and crime. However, the number of Black people harmed by hacked and rogue AI will dwarf all historical records, and the gravity of harm is incomprehensible.

The lack of technical transparency and legal accountability leaves wrongfully convicted defendants without legal remedies if they are unlawfully detained based on a cyberattack, faulty or hacked data, or rogue AI. Scholars and engineers acknowledge that the artificial intelligence that is giving recommendations to law enforcement, prosecutors, judges, and parole boards lacks the common sense of an 18-month-old child. This Article reviews the ways AI is used in the legal system and the courts’ response to this use.  It outlines the design schemes of proprietary risk assessment instruments used in the criminal justice system, outlines potential legal theories for victims, and provides recommendations for legal and technical remedies to victims of hacked data in criminal justice risk assessment instruments. It concludes that, with proper oversight, AI can increase fairness in the criminal justice system, but without this oversight, AI-based products will further exacerbate the extinguishment of liberty interests enshrined in the Constitution.

According to anti-lynching advocate Ida B. Wells-Barnett, “The way to right wrongs is to turn the light of truth upon them.” Thus, transparency is vital to safeguarding equity through AI design and must be the first step.  The Article seeks ways to provide that transparency, for the benefit of all America, but particularly persons of color who are far more likely to be impacted by AI deficiencies.  It also suggests legal reforms that will help plaintiffs recover when AI goes rogue.


Congressional Enforcement of the Reconstruction Amendments & Judicial Review
Author: Alexander Tsesis

Abstract:

This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme Court and Congress in achieving aspirations of the Second Founding. The framework that emerges requires the judiciary to defer to legitimate legislative functions in enforcing racial equality, dignitary justice, and access to the ballot box. Congress’s discretion extends to safeguards for fundamental rights, civil liberties, and political representation. Rational basis review is appropriate when Congress advances autonomy, equality, and franchise. However, when courts safeguard equal enjoyment of fundamental rights against legislative encroachments, those three amendments require heightened judicial scrutiny of adverse state actions.


The Litigation Landscape of Fraternity and Sorority Hazing: Defenses, Evidence, and Damages
Author: Gregory S. Parks & Elizabeth Grindell

Abstract:

In recent years, there has been increasing public and media attention to hazing, especially within collegiate fraternities and sororities. Whether it is the deaths, major injuries, or litigation—both criminal and civil—these organizations have, and this organization has, received increased scrutiny. In this Article, we explore a range of tactical considerations that lawyers must consider—from defenses to evidentiary concerns. We also explore how damages are contemplated within the context of hazing litigation.


Pretrial Custody & Miranda
Author: Kit Kinports

Abstract:

In two recent opinions, Maryland v. Shatzer and Howes v. Fields, the Supreme Court concluded that inmates serving prison sentences were not in custody for purposes of Miranda, in Shatzer’s case while he was living among the general prison population and in Fields’ case while he was undergoing police interrogation.  The question addressed in this Article is one that has divided the lower courts in the wake of those two decisions:  the impact of the Court’s rulings on the hundreds of thousands of pretrial detainees in this country, many of whom are poor, Black, and Brown.

The Article maintains that the Court’s language and reasoning in Shatzer and Fields, as well as the relevant policy considerations, call for limiting the reach of those opinions to prisoners serving time.  The Article therefore concludes that pretrial detainees should be deemed to be in Miranda custody for the duration of their confinement prior to trial.  Any other result would allow gamesmanship on the part of prosecutors in making charging decisions and bail recommendations and would enable law enforcement to trade on the coerciveness of pretrial detention to elicit unwarned confessions from suspects who are especially susceptible to the threats and promises that are a leading cause of false confessions and who disproportionately represent communities of color and financially vulnerable populations.


The Surprising Significance of De Minimis Tax Rules
Authors: Leigh Osofsky & Kathleen DeLaney Thomas

Abstract:

De minimis tax rules—rules that eliminate tax burdens for low-income taxpayers or low-dollar transactions—abound in the tax law. Despite the prevalence of such rules, legal scholarship has treated them as—well—de minimis, or as mere rounding errors that do not merit sustained attention. This perspective is understandable. If de minimis rules address insignificant taxpayers or tax liabilities, aren’t the rules themselves likely to be insignificant?

Recent tax law developments have revealed that this conception of de minimis tax rules is deeply misguided. Major allocations of tax law liability, as well as accompanying questions about the fairness, efficiency, and administrability of the tax system, turn on the existence and design of de minimis tax rules. In the wake of the recent Tax Cuts and Jobs Act, for example, astute industry players successfully lobbied the Treasury Department to create de minimis tax rules, thereby scoring significant monetary victories. De minimis tax rules like these not only serve as low-salience giveaways, but are also poorly designed in a way that undermines the integrity of the tax system.

The lack of scholarly attention to de minimis tax rules has left this lobbying largely unchecked. There is no scholarly framework evaluating existing de minimis tax rules. There is no policy framework to help lawmakers decide why, when, or how such rules should be made. And there is no separation-of-powers framework analyzing when the Treasury Department has the authority to create de minimis tax rules without express Congressional authorization. This Article seeks to fill this gap by analyzing de minimis tax rules along all of these dimensions. It provides a framework for considering when de minimis tax rules are preferable to other policy options and offers important design considerations. Scholars can apply this analysis to the de minimis tax rules that already pervade the Code and policymakers can use it to guide the many more they will consider in the future.

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