Duke Law Journal

Articles

Racial Equity in Algorithmic Criminal Justice
Aziz Z. Huq
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Algorithmic tools for predicting violence and criminality are increasingly deployed in policing, bail, and sentencing. Scholarly attention to date has focused on these tools’ procedural due process implications. This Article considers their interaction with the enduring racial dimensions of the criminal justice system. I consider two alternative lenses for evaluating the racial effects of algorithmic criminal justice: constitutional doctrine and emerging technical standards of “algorithmic fairness.” I argue first that constitutional doctrine is poorly suited to the task. It often fails to capture the full spectrum of racial issues that can arise in the use of algorithmic tools in criminal justice. Emerging technical standards of algorithmic fairness are at least attentive to the specifics of the relevant technology. But the technical literature has failed to grapple with how, or whether, various technical conceptions of fairness track policy-significant consequences. Drawing on the technical literature, I propose a reformulated metric for considering racial equity concerns in algorithmic design: Rather than asking about abstract definitions of fairness, a criminal justice algorithm should be evaluated in terms of its long-term, dynamic effects on racial stratification. The metric of nondiscrimination for an algorithmically assigned form of state coercion should focus on the net burden thereby placed on a racial minority.

Chief Justice Robots
Eugene Volokh
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Say an AI program someday passes a Turing test, because it can con-verse in a way indistinguishable from a human. And say that its develop-ers can then teach it to converse—and even present an extended persua-sive argument—in a way indistinguishable from the sort of human we call a “lawyer.” The program could thus become an AI brief-writer, ca-pable of regularly winning brief-writing competitions against human lawyers.

Once that happens (if it ever happens), this Essay argues, the same technology can be used to create AI judges, judges that we should accept as no less reliable (and more cost-effective) than human judges. If the software can create persuasive opinions, capable of regularly winning opinion-writing competitions against human judges—and if it can be adequately protected against hacking and similar attacks—we should in principle accept it as a judge, even if the opinions do not stem from human judgment.

Notes

Making Forum Non Conveniens Convenient Again: Finality and Convenience for Transnational Litigation in U.S. Federal Courts
Matthew J. Eible
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The forum non conveniens (“FNC”) doctrine allows a federal court to dismiss a case from the U.S. legal system in favor of a more convenient foreign jurisdiction. When a party moving for dismissal under the FNC doctrine succeeds, the losing party may immediately appeal that decision as of right to an appellate court. But if the motion to dismiss for FNC is denied, the right to an appeal is unavailable until after a final judgment is issued in the case.

This dichotomy in appellate review results from Van Cauwenberghe v. Biard , where the Supreme Court held that motions to dismiss for FNC do not fall within the collateral order exception to the final judgment rule in federal courts.

Yet motions to dismiss for FNC by definition deal with transnational disputes, and the Supreme Court has recently been limiting the ability for transnational litigation to proceed in U.S. courts. This Note argues that the values underpinning the Supreme Court’s recent jurisprudence restrictive of transnational litigation—separation of powers, comity, fairness, and efficiency—similarly support the Supreme Court altering the appellate regime for denied motions to dismiss for FNC to allow for immediate appeals as of right.

Currently, there are some limited, case-by-case opportunities to seek interlocutory review of FNC denials. But these mechanisms have proven to be ineffective. Overruling Biard is the best way to alter the appellate framework for denied motions to dismiss for FNC. Doing so would strengthen the utility of the FNC doctrine and serve the Supreme Court’s interest in limiting the volume of transnational litigation heard in U.S. federal courts.

Congress’s War Powers and the Political Question Doctrine After Smith v. Obama
Samuel R. Howe
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More than seventeen years after the attacks of September 11, 2001, the United States continues to battle terrorist organizations inspired by or derived from al Qaeda under the legal aegis of the 2001 Authorization for the Use of Military Force. The government has interpreted this law as providing expansive authority to conduct military operations against actors that did not even exist in 2001, including the Islamic State of Iraq and Syria (“ISIS”). Congress has largely supported this effort in annual authorizing legislation and by funding the campaign against ISIS.

Despite this permissive legal environment, the government pressed for even greater flexibility in Smith v. Obama , a 2016 challenge to the legal basis for the anti-ISIS campaign, arguing that the war powers are subject to the political question doctrine and thus outside the purview of the courts. The district court accepted this argument, contravening recent Supreme Court decisions that narrow the doctrine’s scope. In doing so, the Smith court cast doubt on the primacy of Congress in bringing the United States into war.

In response, this Note offers three insights. First, it assesses historical decisions in cases implicating executive branch war powers in light of the modern political question doctrine. Second, it critiques the Smith court’s failure to squarely confront the separation of powers questions presented by the case. Finally, it offers a series of recommendations for Congress and the courts to avoid the pitfalls of the political question doctrine in similar cases in the future.

East of Eden: A Contractual Lens for an Unsettled Area of First Amendment Shunning Jurisprudence
Austin J. Rogers
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The Free Exercise Clause was enacted for the purpose of protecting diverse modes of religious practice. One practice that numerous religious traditions observe is shunning—the expulsion and social exclusion of noncompliant individuals from a religious community. Yet because shunning usually involves concomitant harm to religious congregants, plaintiffs often bring religious-tort claims against religious entities for the injuries they suffer. This implicates free-exercise concerns for both the plaintiff and the religious-entity defendant. Despite the utmost importance of religious freedom in American jurisprudence, courts analyze religious-tort claims in widely disparate ways. And they typically rely on consent and membership as the basis for judicial decisionmaking.

But these analytical lenses are flimsy and lead to unpredictable outcomes. At times, they are underprotective of religious plaintiffs; at others, they penalize religious entities and chill religious practices. In order to clarify a muddled sphere of free-exercise jurisprudence, courts should adopt a contract paradigm for analyzing shunning claims. A contract paradigm would lead to cleaner results and would uphold the integrity of religious institutions, which are necessary for religious individuals to thrive.