Over the past four decades, people have increasingly turned to reproductive technologies to form their families. As technologies such as egg freezing, in-vitro fertilization, and pre-implantation genetic diagnosis have developed and improved, processes that were once left to chance are now subject to human control. As a result, what were once hopes—for instance, deferring childbearing until some point in the future, or having a male or female child—have transformed into expectations on the part of technology users.
Yet expectations are sometimes dashed because of avoidable human error, like mislabeling a sperm sample or failing to check liquid nitrogen levels in high-capacity freezers. As Dov Fox shows in his comprehensive new book, Birth Rights and Wrongs, courts have largely been unsympathetic to lawsuits stemming from these types of errors. Fox convincingly argues that courts should redress thwarted expectations about reproduction through the tort of reproductive negligence. Continue reading "Reproductive Exceptionalisms"
Deborah Hellman, Sex, Causation and Algorithms: Equal Protection in the Age of Machine Learning
, 98 Wash. L. Rev.
__ (forthcoming, 2020), available at SSRN
States have increasingly resorted to statistically-derived risk algorithms to determine when diversion from prison should occur, whether sentences should be enhanced, and the level of security and treatment a prisoner requires. The federal government has jumped on the bandwagon in a big way with the First Step Act, which mandated that a risk assessment instrument be developed to determine which prisoners can be released early on parole. Policymakers are turning to these algorithms because they are thought to be more accurate and less biased than judges and correctional officials, making them useful tools for reducing prison populations through identification of low risk individuals.
These assumptions about the benefits of risk assessment tools are all contested. But critics also argue that, even if these instruments improve overall accuracy, they are constitutionally suspect. While no instrument explicitly uses race as a “risk factor” (which in any event is probably barred by the Supreme Court’s decision in Buck v. Davis), several do incorporate sex (with maleness increasing the risk score) and many rely on factors that are highly correlated with race or socio-economic status, which is said to violate equal protection principles. Continue reading "Reconciling Risk and Equality"
David Freeman Engstrom & Jonah B. Gelbach, Legal Tech, Civil Procedure, and the Future of Adversarialism
, 169 U. Pa. L. Rev.
__ (forthcoming, 2020), available at SSRN
Myriad examples—from the rise of chief technology officers in law firms to the over $1.6 trillion invested in legal tech start-ups in 2018 to the use of AI-assisted drafting tools by Walmart’s legal department—demonstrate how technology is inexorably changing the American legal profession and courts, despite their small “c” conservative nature. When Chief Justice John Roberts was asked whether “smart machines, driven with artificial intelligences, will assist with courtroom fact finding or, more controversially even, judicial decision making,” he replied, “It’s a day that’s here….” And the legal community’s integration of more mundane—if no less important—technological tools such as videoconferencing into its existing practices has been dramatically hastened by the COVID-19 pandemic. A prominent example of this trend was when the Supreme Court of the United States held its first telephonic hearing in May.
While legal scholars and the popular press frequently comment on these developments, even the most expansive futurist takes about robot judging focus on how lawyers and the judiciary are (or will be) using new technology to do their traditional work. And courts mostly wrestle with how to adapt existing doctrine to specific applications of new tools. Against this context, David Freeman Engstrom and Jonah Gelbach’s Legal Tech, Civil Procedure, and the Future of Adversarialism marks a significant theoretical push forward, identifying and exploring the overarching question of how legal tech and the civil justice system’s procedural rules mutually shape each other. Continue reading "Charting the Interactions of Legal Tech and Civil Procedure"