Table of Contents
Articles
How Not to Democratize Algorithms
Ngozi Okidegbe
A growing set of jurisdictions has embraced “consultative algorithmic governance,” the idea that community members, particularly racially and otherwise politically marginalized ones, should be involved in the processes by which state institutions procure, construct, implement, and oversee artificially intelligent algorithms employed in public sector decision-making. Consultative processes range from public hearings that provide communities with an opportunity to comment about anticipated algorithmic use to community advisory boards that help public officials evaluate the impact of current or future algorithmic use. This Article argues that consultative algorithmic governance is critically flawed and then builds upon this critique to point toward a more pluralistic, and potentially contentious, vision of community participation.
Missing Children Discrimination
Itay Ravid & Tanisha Brown
The problem of missing children in America—many of whom are victims of crime—has haunted society for decades. In response, a range of laws and policies have emerged, culminating in the nationwide adoption of the AMBER Alert system in the early 2000s. While often hailed as a success, this Article reveals a sad truth: Not all children benefit equally from AMBER. In particular, missing Black children are systematically underserved by the system, which ultimately contributes to the disproportionate impact of the missing children crisis on Black communities. While this issue received limited scholarly attention, states have recently started recognizing it. In January 2024, California offered the most comprehensive attempt to date by introducing a new alert system for “missing Black youth” (named “Ebony Law”). Since then, other states—including Alabama, Illinois, Massachusetts, and Pennsylvania—have begun discussing similar systems. This Article interrogates the crisis of missing Black children through the lens of race-conscious legislation like Ebony Law, situating these efforts within broader constitutional conversations on race-conscious remedies in criminal law.
Lecture
Justifications for Fair Uses
Pamela Samuelson
The principal goal of this Article is to explain that the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith preserved the flexible and well-balanced standards for assessing fair use defenses that the Court first established in its 1994 decision in Campbell v. Acuff-Rose Music, Inc. Campbell, which recognized that when putative fair users copy parts or all of earlier works for different purposes than the earlier works’ authors, such transformative purposes tend to favor fair use defenses because such uses are less likely to harm markets for the originals. Campbell eschewed bright-line rules and directed courts to assess all fair use factors and balance them together in a flexible and holistic manner. Contrary to what some have mistakenly asserted, nothing in Warhol abjures the rich body of fair use case law, both before and after Campbell, that has recognized many types of fair use justifications. The Article begins by tracing the evolution of copyright’s fair use doctrine and its broad scope, reflected in Congress’s intent in codifying the doctrine in the 1976 Copyright Act and in cases such as Campbell and Warhol. This Article then reviews a wide variety of cases in which courts have found fair uses to be justified, not only based on specific parts of the text of 17 U.S.C § 107 but also falling under three other well-established categories of fair use justifications. Such robustness in the case law gives this doctrine the openness to other fair use justifications that Congress intended, in keeping with the constitutional purposes of copyright law
Essay: 2024 Symposium
Section Three of the Fourteenth Amendment from the Perspective of Section Two of the Fourteenth Amendment
Mark A. Graber
Section Three of the Fourteenth Amendment is better interpreted from the perspective of Section Two of the Fourteenth Amendment than, as in Trump v. Anderson, from the perspective of Section One. Apportionment was the heart of constitutional reform when the Fourteenth Amendment was framed and ratified. Section Two was the centerpiece of a tripartite scheme that proponents of congressional reconstruction designed to punish treason, reward loyalty, and realize their constitutional commitment to free labor and racial equality, in part by preventing “oathbreaking insurrectionists” from holding office. Black suffrage was the first line of defense. The persons responsible for the Fourteenth Amendment assumed that if most men of color in former Confederate states voted, former “oathbreaking insurrectionists” would not be elected and those persons who were elected would be committed to national union, free labor, and racial equality. Congress was the second line of defense. The persons responsible for Fourteenth Amendment assumed that, should states not enfranchise black men, Congress would still be staffed by persons committed to passing legislation, when necessary, that prevented oathbreaking insurrectionists from holding office and securing Republican commitments to national union, free labor, and racial equality. Federal courts were the last and weakest line of defense. The persons responsible for the Fourteenth Amendment did not think courts were a necessary or proper primary means of advancing constitutional purposes. Courts were expected to step in, if at all, only when both states and Congress failed to function as Section Two (or any other section) anticipated.
Comment
Securities & Exchange Commission v. Jarkesy and the Demise of the Public Rights Doctrine
Jacob J. Kruchten
In Securities & Exchange Commission v. Jarkesy, the U.S. Supreme Court ruled that the Seventh Amendment did not allow the Securities & Exchange Commission (SEC) to assess civil penalties via administrative adjudication without a jury trial. In so ruling, the Court rejected the SEC’s claim that the public rights exception applied to permit the SEC to bypass the Seventh Amendment. The Court purported to distinguish Jarkesy from Atlas Roofing, in which the Court had applied its most expansive interpretation of the public rights doctrine by permitting an agency to assess civil penalties under the rationale that the agency had brought the action under a statutory claim.
This Comment explores the history of the public rights doctrine since its origin in the mid-nineteenth century. This Comment describes three principal themes: the Court’s gradual restriction of the public rights doctrine over the past few decades, the Court’s separation-of-powers jurisprudence in other analogous areas of the law, and the limitations the Court has imposed on stare decisis. All three of these factors indicate that the Court, without explicitly overruling Atlas Roofing, has limited the holding of that case to such an extent that no clear rationale can justify it. The public rights doctrine, therefore, is no longer practically viable. This Comment concludes that the Court will likely entirely reject the public rights doctrine in the near future.
Note
An Unrealized Opportunity: What Moore v. United States Means for the Existence of a Constitutional Realization Requirement for Income Taxation
Shane McAllister Conley
The United States Supreme Court disappointed tax practitioners and commentators when it declined to weigh in on whether realization—actual or constructive receipt of income as wages, salaries, interest, rent, business income, dividends, or gain from the sale of property—is a constitutional prerequisite for income taxation in Moore v. United States. The Court managed to avoid the realization question by holding that income realized by a foreign corporation could be attributed to the Moores as shareholders such that requiring them to pay a one-time Mandatory Repatriation Tax was constitutionally permissible. The shareholders could be taxed on the corporation’s realized earnings, much as owners of pass-through entities are taxed on their share of the entity’s earnings.