Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Go. What are the prospects for the displacement of human courts as the centerpiece of legal decisionmaking? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of...
Essay
Recent advances in machine learning have reinforced the competitive position of leading online platforms. This Essay identifies two important sources of platform rivalry and proposes ways to maximize their competitive potential under existing antitrust law. A nascent competitor is a threatening new entrant that, in time, might become a full-fledged platform rival. A platform’s acquisition of a nascent competitor should be prohibited as an unlawful...
The increasing prevalence of ever-sophisticated technology permits machines to stand in for or augment humans in a growing number of contexts. The questions of whether, when, and how the so-called actions of machines can and should result in legal liability thus will also become more practically pressing. One important set of questions that the law will inevitably need to confront is whether machines can have mental states, or—at least—something...
A recurrent concern about machine learning algorithms is that they operate as “black boxes,” making it difficult to identify how and why the algorithms reach particular decisions, recommendations, or preÂdictions. Yet judges are confronting machine learning algorithms with inÂcreasing frequency, including in criminal, administrative, and civil cases. This Essay argues that judges should demand explanations for these algorithmic outcomes....
Complex machine learning models derived from personal data are increasingly used in making decisions important to peoples’ lives. These automated decision tools are controversial, in part because their operaÂtion is difficult for humans to grasp or explain. While scholars and policyÂmakers have begun grappling with these explainability concerns, the debate has focused on explanations to decision subjects. This Essay arÂgues that explainability...
How will we assess the morality of decisions made by artificial intelliÂgence—and will our judgments be swayed by what the law says? Focusing on a moral dilemma in which a driverless car chooses to sacrifice its passenger to save more people, this study offers evidence that our moral intuitions can be influenced by the presence of the law.
Sex robots are here. Created specifically to allow individuals to simulate erotic and romantic experiences with a seemingly alive and present human being, sex robots will soon force lawmakers to address the rise of digisexuality and the human–robot relationship. The extent to which intimacy between a human and robot can be regulated depends on how we characterize sex with robots—as a masturbatory act, an inÂtimate relationship, or nonconsensual...
For more than fifty years, the problems endemic to municipal policing in the United States—brutality, racial discrimination, corruption, and opacity—have remained remarkably constant. This has occurred notwithstanding the advent of modern constitutional criminal procedure and countless judicial opinions applying it to the police. The municipal police can evade criminal procedure’s legality-based paradigm through formal and informal means....
The constitutionally mandated decennial enumeration of the U.S. population is indispensable to the equitable distribution of political and economic resources. As we approach the 2020 Census, however, several factors converge that both undermine how we count change in commuÂnities of color and conflict with shifting demographics and power dynamics, making accurate accounting especially urgent. Among these, perhaps most notable is the threatened...
In early 2018, the federal government announced that it would ask every person in the country about their citizenship status on the 2020 Census. Controversy immediately followed. The Constitution makes the decennial census the federal government’s very first express responsibility; it drove existential questions about represenÂtation and funding in 1790 and has become no less important in the centuries since. Many observers, including several...