Online Features


Dirty Data, Bad Predictions: How Civil Rights Violations Impact Police Data, Predictive Policing Systems, and Justice

Rashida Richardson, Jason M. Schultz, Kate Crawford

Law enforcement agencies are increasingly using predictive policing systems to forecast criminal activity and allocate police resources. Yet in numerous jurisdictions, these systems are built on data produced during documented periods of flawed, racially biased, and sometimes unlawful practices and policies (“dirty policing”). These policing practices and policies shape the environment and the methodology by which data is created, which raises the risk of creating inaccurate, skewed, or systemically biased data (“dirty data”). If predictive policing systems are informed by such data, they cannot escape the legacies of the unlawful or biased policing practices that they are built on. Nor do current claims by predictive policing vendors provide sufficient assurances that their systems adequately mitigate or segregate this data.

In our research, we analyze thirteen jurisdictions that have used or developed predictive policing tools while under government commission investigations or federal court monitored settlements, consent decrees, or memoranda of agreement stemming from corrupt, racially biased, or otherwise illegal policing practices. In particular, we examine the link between unlawful and biased police practices and the data available to train or implement these systems. We highlight three case studies: (1) Chicago, an example of where dirty data was ingested directly into the city’s predictive system; (2) New Orleans, an example where the extensive evidence of dirty policing practices and recent litigation suggests an extremely high risk that dirty data was or could be used in predictive policing; and (3) Maricopa County, where despite extensive evidence of dirty policing practices, a lack of public transparency about the details of various predictive policing systems restricts a proper assessment of the risks. The implications of these findings have widespread ramifications for predictive policing writ large. Deploying predictive policing systems in jurisdictions with extensive histories of unlawful police practices presents elevated risks that dirty data will lead to flawed or unlawful predictions, which in turn risk perpetuating additional harm via feedback loops throughout the criminal justice system. The use of predictive policing must be treated with high levels of caution and mechanisms for the public to know, assess, and reject such systems are imperative.

“Avoiding” Judicial Activism: The Supreme Court’s Unconvincing Efforts to Restrict the Scope of the Avoidance Canon

Brian G. Slocum

The canon of constitutional avoidance is jurisprudentially important but poorly constructed. The Supreme Court frequently uses the canon in significant cases to justify second-best interpretations of statutes that avoid serious constitutional questions. Nevertheless, the trigger for the application of the avoidance canon, textual “ambiguity,” has not been coherently developed by the Court and differs in important ways from ambiguity as linguists typically view it. In addition, the Court, in focusing on “ambiguity” as a precondition for the application of the avoidance canon, fails to recognize the different ways in which a statute might be indeterminate. Recently, the Court reaffirmed its conception of the avoidance canon in a case, Jennings v. Rodriguez, involving prolonged immigration detention. In Rodriguez, the Court focused on ambiguity to the exclusion of other types of linguistic indeterminacy and continued to defend an unduly narrow conception of ambiguity that rejects implicit limitations on the scopes of statutes. This Article argues that the Rodriguez case highlights the need for the Court to reassess the avoidance canon. By doing so, the Court can give the avoidance canon a more defensible foundation that is consistent with the ways in which language operates.


Combining Income and Wealth into a Single Instrument: A Review of Taxing Inequality

Jason S. Oh

Ari Glogower’s Taxing Inequality is an ambitious, thought-provoking piece. He makes three major arguments: (1) that the economic power theory justifies taxing wealth in addition to income, (2) that separate taxes on wealth and income are inferior to a combined tax that incorporates both into a single instrument, and (3) that the best way to accomplish this goal is to include in income an amount equal to an annuity-equivalent portion of the taxpayer’s wealth. Although it departs from the structure of the article, I will address (2) before considering (1) and (3) together.

The Silver Tsunami: Employment Law Reform to Protect Family Caregivers of the Aging Population

Lisa P. Wiggin

The imminent aging of the “baby boom” generation will magnify the need for eldercare, much of which will come from family members who also work outside the home. Current laws are inadequate to protect many working family caregivers from family responsibilities discrimination (FRD): the unfair treatment of workers with family caregiving responsibilities. When FRD causes caregivers to leave the workplace, there can be financial penalties for both the caregivers—especially women—and their employers. This Essay proposes that states can resolve these issues by adding family caregivers as a protected class to state antidiscrimination laws and provides examples of such legislative efforts.

Are Universities Schools? The Case for Continuity in the Regulation of Student Speech

Chad Flanders

Are universities schools? The question seems almost silly to ask: of course universities are schools. They have teachers and students, like schools. They have grades, like schools. There are classes and extracurricular activities, also like schools. But recent writings on the issue of “free speech on campus” have raised the improbable specter that universities are less educational institutions than they are public forums like parks and sidewalks, where a free-wheeling exchange of ideas and opinions takes place, unrestricted by any sense of academic mission or school discipline. My short essay has three parts. In the first part, I examine and explain the rhetoric advancing what I call the “break” view of speech at universities, which situates universities as types of institutions that are more similar to traditional public forums than they are to high schools or middle schools. In the second part, I look at how lower courts have applied the principles of the Court’s educational cases (the Tinker line) in contexts other than universities to see how the weighing and balancing of interests proceeds in those cases. In the third part, I argue for the “continuity” view, which advocates for applying the Tinker line of cases to universities in a way that takes seriously the idea that universities are in fact schools and not pure “marketplaces of ideas,” where speech generally goes unregulated, and restrictions on speech can only be made in the face of imminent threats.

The Infrastructure Ratchet Effect

Shlomit Azgad-Tromer

This article identifies a profound and previously overlooked incentive for excessive risk- taking by infrastructure providers. The magnitude and critical nature of infrastructure implies that negative externalities potentially far exceed the net assets of the infrastructure provider. The nonconsensual relationship of infrastructure providers with their stakeholders implies that excessive risks cannot be contracted for and incorporated into price. Shareholders of infrastructure providers thus develop asymmetric preferences towards excessive risk-taking: They could gain from risks if things go well but are shielded by limited liability rules if things do not. The article identifies this moral hazard and terms it “The Infrastructure Ratchet Effect.”

This Article shows that normal market forces and legal mechanisms fail to counter these distorted incentives in infrastructure providers: Regulation, reputation, litigation, and debt pricing all fail to deter excessive risk-taking in infrastructure. Project finance, leverage, executive compensation, and behavioral tendencies exacerbate the problem.

To illustrate the infrastructure ratchet effect, this Article presents the 2017 data breach at Equifax as a case study, arguing that Equifax is a data public utility and should be considered an infrastructure provider. It surveys the events leading to the massive Equifax data breach and shows that despite cataclysmic implications, Equifax eschewed adequate controls to ensure the security of its data. This Article proposes the infrastructure ratchet effect as a possible explanation for this series of events.

In addition to shedding new light on the infrastructure ratchet effect as a potential source of cataclysmic risks caused by infrastructure providers, this Article considers possible tools to tackle these distorted incentives. Insight is drawn from literature surrounding banking-risk regulation, where a similar moral hazard is well understood.

Elements of Judicial Style: A Quantitative Guide to Neil Gorsuch’s Opinion Writing

Nina Varsava

Judicial style and rhetoric are objects of perennial and often intense concern. Innumerable books, scholarly and popular articles, and blog posts are devoted to the topic. Current discussions of judicial writing often feature Neil Gorsuch’s opinions. Despite the fervor around Gorsuch’s style and rhetoric, there have been no attempts to systematically quantify his stylistic proclivities. This Article presents results from a quantitative study of almost all published majority opinions that the Tenth Circuit Court of Appeals issued during Gorsuch’s tenure there. Through analyses of extensive stylistic data, I illuminate Gorsuch’s stylistic fingerprint, revealing, in quantitative terms, how Gorsuch has achieved the stylistic effect that has impressed many observers. Moreover, I analyze Gorsuch’s stylistic drift over the past decade, revealing trends that might give us a sense of what to expect from the Justice’s writing going forward. I find that Gorsuch’s writing style is remarkably informal and unconventional compared to his Tenth Circuit peers. Moreover, Gorsuch’s opinions have a lot in common with short stories. His opinions are often suspenseful, withholding the legal conclusion until the end. He also employs a broad vocabulary and uses the passive voice sparingly. Regardless of the merit of Gorsuch’s writing style, it has captivated many readers, among both the public and the legal community. This Article pinpoints, in kind and degree, some of the properties that make Gorsuch’s writing stand out—properties that have helped form his reputation as a jurist.

The Bounded Independence of the American Courts

Keith E. Whittington

Response to Tara Leigh Grove, The Power of “So-Called Judges”, 93 N.Y.U. L. Rev. Online 14 (2018).

President Trump’s rhetoric has raised fears that the administration might defy a judicial order or take other steps to subvert the authority and independence of the judiciary. Trump’s rhetoric is, to be sure, worrisome. The authority of the American courts to adhere to the rule of law cannot be taken for granted. In moments of extreme conflict between the courts and elected officials, it might be expected that politicians will seek to curb the power of the courts to obstruct their political and policy goals. American courts can now boast hard-won bipartisan support for their authority. Courts can likely weather the storm in a conflict with the President if the broader range of political elites, including those within the Republican Party, continue to see that a powerful and independent judiciary is in their long-term political interest.

Online Symposium

The Aggressive Virtues

Stephen I. Vladeck

Response to Nancy Gertner, The “Lower” Federal Courts: Judging in the Time of Trump, 93 N.Y.U. L. Rev. Online 7 (2018).

Internal Oversight and the Tenuous Protection of Norms

Shirin Sinnar

Response to Aziz Z. Huq, Democratic Erosion and the Courts: Comparative Perspectives, 93 N.Y.U. L. Rev. Online 21 (2018)

Oversight institutions within the executive branch can play an important role in checking executive power. But the independence and efficacy of these institutions depend on unwritten conventions that are now under threat.

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