Article
In 2019, Facebook announced that it had begun using machine-learning
algorithms to preemptively screen uploads for nonconsensual pornography.
Although the use of screening algorithms has become commonplace, this seemingly
minor move from reactive to preemptive legal analysis–based prevention—this
Article argues—is part of a groundbreaking shift in the meaning and effect of
algorithmic screening, with potentially far-reaching implications for legal discourse
and development.
by Daniel Maggen
Article
For more than a decade, employment discrimination causation law has been a confusing, often overly restrictive quagmire that has contributed substantially to the paltry success rate of plaintiffs in employment discrimination cases. Most of these cases are dismissed pretrial, all too often based on a failure of causation. A key reason traces back to loose and misleading language—centered on a single word—in a 2009 Supreme Court opinion involving the but-for causation standard that applies in most discrimination cases. The Court said that the discriminatory motive must be “the” but-for cause of the employer’s action when it should have said “a” but-for cause. This language incorrectly implies that the discriminatory motive must be the sole cause—“the” cause—of the employer’s action, and though the sole-causation standard is demonstrably wrong, many courts nevertheless have required such a showing.
by D’Andra Millsap Shu
Article
Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys)to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.
by Jonathan P. Feingold
Article
Technologies such as social media, autonomous vehicles, and “big data” analytics generate enormous benefits for society, but they also create substantial harms. Many of these effects take the form of externalities—external benefits and harms that a decisionmaker (such as an inventor) imposes on third parties without charge or compensation. Considering negative externalities, for example, social media networks spread misinformation throughout the electorate, autonomous vehicles threaten the jobs of millions of professional drivers, and predictive policing based on big data can lead to unreasonable searches and seizures. Externalities can cause inefficient resource allocation, and the classic remedy is to “internalize” externalities by ensuring that decisionmakers consider the external benefits and costs of their actions. Patents, which confer exclusive rights on new inventions, enable inventors to internalize a share of the positive externalities from technology, thus shoring up incentives to invent. However, inventions also produce harms, and how patents treat negative externalities from new technologies has been largely overlooked. This Article is the first to extensively examine this issue. It argues that while patents internalize positive externalities associated with innovation, they do surprisingly little to internalize negative externalities. This Article refers to this underappreciated dynamic as patent law’s externality asymmetry.
by Peter Lee
Student Note
On the day of his inauguration, President Biden fired former
National Labor Relations Board (Board) General Counsel Peter Robb.
President Biden eventually replaced Robb with General Counsel
Jennifer Abruzzo, who in August 2021 released a list of Board
dispositions made during the Trump Administration that she wanted
to revisit. Included in that list was General Motors, a July 2020 Board
decision which some cheered as a step to making the workplace safer
and more civil, and which others derided as yet another unnecessary
concession to employers by the Trump Board. Pronouncing the end of
what it termed “setting-specific” standards, the General Motors Board
held that the only standard for determining when employers violated Section 8(a)(3) of the National Labor Relations Act (the Act) by
disciplining abusive worker conduct would be drawn from its old and
reliable Wright Line test.
by Kurt Stumpo
Student Note
Nick Rhoades was diagnosed with human immunodeficiency virus
(HIV) in 1998. By 2008, an antiretroviral treatment had lowered Rhoades’s viral load to an undetectable level, meaning that he was
incapable of transmitting HIV to sexual partners. In 2008, Rhoades
engaged in consensual oral and anal sex with a condom and without
informing his partner that he was HIV positive. Rhoades’s partner
“understood Rhoades to be HIV negative, in part because Rhoades’s
online profile listed him as HIV negative.” Rhoades’s partner later
found out that Rhoades was living with HIV, and he contacted the
police. Rhoades was charged under an Iowa law that criminalized
transmission of HIV, even though his partner never tested positive for
HIV.
by Bryan Olert
Student Note
The COVID-19 pandemic has created especially risky
environments in state and federal prisons where, due to mass
incarceration and overcrowding, social distancing is nearly impossible
and incarcerated persons are not provided proper protective
equipment, such as face masks and gloves. There has been an increase in claims filed by incarcerated people seeking release and other
injunctive remedies due to prison conditions that place them at a higher
risk of contracting COVID-19. Under the Prison Litigation Reform
Act, all incarcerated people who file claims regarding prison conditions
under § 1983, or other federal law, must satisfy an exhaustion
requirement that requires complete exhaustion of all administrative
remedies prior to litigation. Administrative remedies are often
grievances filed with the prison administration, which must be
processed and responded to by administrative officials. Due to this
exhaustion requirement, many district courts are rejecting these claims,
even though exhaustion can take 75 to 105 days to complete, which can
be detrimental in the context of a highly contagious disease.
by Hannah E. Mirzoeff
