Anticipating a New Modern Skidmore Standard

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference but blessed giving agency interpretations of statutes “respect” or “weight” under the Skidmore standard during judicial review. Yet, the Court in Loper Bright offered only a few limited references regarding Skidmore as a doctrine, with little guidance regarding what judicial review under Skidmore ought to look like. The Court might not have felt the need to elaborate, as courts have been applying Skidmore for eighty years. As applied, however, Skidmore is a more complicated doctrine than many people realize. An extensive Skidmore jurisprudence exists, with nuances that at first blush may not seem entirely square with some of the assumptions and reasoning in Loper Bright. The purpose of this Essay is to explore the pre‑Loper Bright status quo of Skidmore review and anticipate some of the questions about Skidmore that will inevitably arise as courts apply it in future cases

Defending Due Process : Why Fairness Matters in a Polarized World

We all feel unfairness deeply when treated in rash ways. We expect, and the law requires, government officials to take fairness seriously, giving us notice and an opportunity to be heard before taking our rights away. That is why the U.S. Constitution commands, twice, that no one shall be deprived of life, liberty, or property without due process of law. Yet, in overheated debates, people argue that others do not deserve any presumption of innocence. In courtrooms and colleges, police stations and jails, restaurants and libraries, print and online, the democratic value of due process is up for grabs. Why is due process under so much pressure? Brandon Garrett exposes widening fault lines. One division lies within our own attitudes, and he explores why we are tempted to put desired outcomes before fair process. Another lies in government, as judges adopt toothless due process rules. People are trapped in debt for unpaid traffic fines; sheriffs seize and forfeit belongings; algorithms suspend teachers\u27 employment; officials use flawed data to cancel healthcare; and magistrates order arrestees to be jailed because they cannot pay cash bail. Meanwhile, the rise of AI threatens what remains of due process with black-box technology. To fight against such unfairness, lawyers try to challenge unjust systems, researchers demonstrate why such processes are so counterproductive, and lawmakers try to enact new protections. Common ground matters now more than ever to mend political polarization, cool simmering distrust of government, prevent injudicious errors, and safeguard constitutional rights. A revival of due process is long overdue.https://scholarship.law.duke.edu/faculty_books/1037/thumbnail.jp

Automating International Human Rights Adjudication

International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of damages. In contrast, we reject the use of algorithms or artificial intelligence (“AI”) to predict whether a state has violated a human rights treaty. In between these polar categories we discuss semi-automated programs that cluster similar cases together, summarize and translate key texts, and recommend relevant precedents. We weigh the benefits of introducing these tools to improve international human rights adjudication—which include greater speed and efficiency in processing and sorting cases, identifying patterns in jurisprudence, and enabling judges and staff to focus on more complex responsibilities—against two types of cognitive biases—biases inherent in the datasets on which ADM is trained and biases arising from interactions between humans and machines. We also introduce a framework for enhancing the accountability that mitigates the potential harms caused by ADM technologies

The Rogue Private Company and National Defense Emergencies

This Note explores two overlapping challenges in the United States constitutional and political system. First, the United States increasingly relies on private companies for technologies necessary for national defense. This has given outsized power to a few unelected corporations and people who might have their own incentives that misalign with those of the United States. This is particularly dangerous in an emergency situation where the United States government, not a private company with its own interests, should be making decisions regarding national security. As an example, this Note focuses on the massive role that the company SpaceX plays in the increasingly important national security domain of space and its tendency to have its own agenda as exemplified by its actions in Ukraine. Second, the executive branch is the best equipped branch to handle a potential emergency threat that comes from a powerful private company that controls national security technology. However, there is a constitutional tension between the needs of expanding the president\u27s power to act in an emergency and maintaining a constitutional separation of powers that prevents the president from turning into a dictator and abusing emergency powers to trample on individual rights. With an eye to both history and current events, this Note addresses the constitutional tension by suggesting Congress expand the president\u27s emergency powers with careful statutory language to limit the scope of these emergency powers. Specifically, this Note proposes that Congress add statutory language to the existing International Emergency Economic Powers Act (IEEPA). This proposal presents a solution to how Congress should plan for the specific yet dangerous situation when a private company with critical technology threatens the national security of the country. The proposed language aims to authorize the president to act against a rogue private company for the interest of national security, while placing tight limits on this authorization

Countering the Demand Side of Foreign Bribery: An Analysis of the Foreign Extortion Prevention Act

The United States has long criminalized bribery of foreign officials but not bribery by foreign officials. Under the Foreign Corrupt Practices Act ( FCPA ), an American may be criminally liable for paying a bribe to another country\u27s official, but the official commits no corresponding crime. The official might face criminal charges if they launder the proceeds of the bribe through the United States and could find themselves the target of Executive Branch sanctions for their corrupt behavior. But until 2023, the United States largely left the official\u27s punishment, if any, to the official\u27s home country. Then, Congress passed the Foreign Extortion Prevention Act ( FEPA ), which, under certain circumstances, directly criminalizes bribery by foreign officials. This Note evaluates the FEPA. It concludes that the FEPA represents a step change in U.S. efforts to counter foreign bribery, but the statute\u27s extraterritorial reach may exceed its grasp