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

Fair Notice Is a Sociopolitical Choice

This Article reframes a deadlocked debate about “fair notice” as a justification for statutory interpretation methods by developing a historical account of a crucial, overlooked dimension: legislatures’ and laypeople’s value judgments about notice. On one side of the debate are idealists who contend, on due process grounds, that judges should embrace interpretive methods and theories based on how well they promote fair notice. On the other side are realists who counter, on empirical grounds, that perfect notice is impossible. Each side continues to talk past the other because we lack a fleshed-out framework for evaluating when the fair-notice basis of a given interpretive method or theory is sufficient or superior to that of others. In the vast terrain of this debate beyond the contexts of the rule of lenity and the void-for-vagueness doctrine, the stalemate has left critical questions undertheorized: Given notice’s real-world costs and limits, how much notice is “enough” for judges to promote through statutory interpretation, and why should judges promote more than enough, less than enough, or just enough notice? The Article uncovers two features of notice with the goal of developing a vocabulary that can be used to resolve the impasse on normative grounds. First, legislatures and laypeople are always in the background making choices about what constitutes “good” or “fair” notice, and, most importantly, they influence how different forms and costs of notice are distributed across different segments of society. Second, these choices have produced deep societal inequalities of notice. Two major transformations in the history of fair notice illuminate these features. First, legislatures made notice fictional by prioritizing a distribution of notice that was “efficient” rather than audience neutral, redistributive, or notice maximizing. Second, and in tension with the conventional idea that laypeople are inherently notice-phobic, laypeople once developed a mass political culture—eventually abandoned by the early twentieth century—that involved reading not just statutes but also legislative history. From this history, the Article ultimately argues that because nonjudicial choices pertaining to notice are always in the backdrop of judicial invocations of fair notice in statutory interpretation, judges who want to embrace fair notice need to have a theory of whether and how to account for these choices—especially choices influencing the distribution of notice across society. While this Article leaves for another time the task of resolving how exactly judges should account for these choices, it preliminarily sketches two potential approaches. It first traces out a hands-off approach that is guided by judicial restraint and that reflects the choices of legislatures (and the choices of the people vis-à-vis legislatures). Second, and in the alternative, it traces out a law-and-political-economy approach to imagining a world of “enough” notice. Finally, the Article explains how the history of notice offers two interventions for the methodology of evaluating fair notice. First, the history can help scholars better determine what constitutes “good” or “fair” notice by revealing the range of possibilities—and limits—of notice. Second, the history demonstrates how fair notice has been contingent on changing historical circumstances, which calls into question the long-term stability of fair notice in statutory interpretation theory

Fine-Tuning LLMs: Structural Fluency and Augmentation for the Great and Powerful Wizard of AI

The civil legal tradition carries assumptions, biases, and attitudes rooted in racism and ideologies intended to protect the (im)balance of power. This moment in history offers new versions of the same challenges with the integration of artificial intelligence (“AI”) and large language models (“LLMs”) into legal frameworks, and those critiques are being addressed in the legal discourse. Building on these perspectives, this moment also offers civil legal professionals a chance to engage in machine learning frameworks informed by social justice principles and accountable to measures of “equal justice for all.” The perception of fairness in the use of these tools is critical to protecting the integrity of and trust in the civil justice system. Although the features of LLMs may not be able to replace legal analysis just yet, developers anticipate that that is where these tools are headed sooner than one might think. Without intentional approaches to machine learning, LLMs will create a civil legal system twilight zone where machines propose new outcomes based on the ineffective patterns of the past, a never-ending feedback loop that traps litigants and stifles social progress. LLMs, and the AI tools which use them, offer a new reality in which legal analysis is more efficient. But, like a law student almost ready to embark on a legal career, LLMs must be properly trained in this time of early development to correct human error. Legal educators, who are not code or software developers, cannot simply change expensive and vast datasets. However, law professors, well versed in scaffolded learning such as the Socratic method and the nuances of social context, are well-situated for this challenge. In the fight for justice, law professors have relied primarily on cultural competency and racial literacy skills to empower subordinated individuals in their work toward systemic justice, critical lenses which can also prove useful in prompting LLMs. Missing from these competency, policy, and regulatory frameworks is a method for prompting machines in ways that “fine-tune” them for social justice. Prompting to encourage consideration of the macro structures and micro systemic forces at work, the historical legacies of injustice, and modern-day subtleties of patterned structural injustice based on social identity and other factors can improve performance and fairness. This Article, borrowing from medical and social work efforts to improve social determinants of health and outcomes, proposes fine-tuning prompts and prompt augmenting to enhance fluency in structural injustice of LLM outputs

Transnational Corporate Law Litigation

For nearly half a century, a federal statute colloquially referred to as the Alien Tort Statute has served as a pivotal battleground over whether corporations violating law abroad can be subject to civil suits in the United States. The statute has been used to bring hundreds of lawsuits against corporations involved in some of the most heinous human rights abuses and environmental catastrophes taking place in foreign nations. Recent Supreme Court cases, however, have sounded the death knell for the viability of future cases by restricting the extraterritorial reach of federal statutes. This Article presents a case for deterring corporate lawbreaking abroad through U.S. corporate law. Unlike Alien Tort Statute cases, corporate governance suits brought by shareholders would frame corporate lawbreaking in foreign nations not as torts actionable under a federal statute but as fiduciary duty claims under state law against directors and officers for enabling U.S. corporations to violate foreign law. In presenting a blueprint for litigators to bring what can be conceptualized as transnational corporate law litigation, this Article clarifies how violations of foreign law—including human rights laws, labor laws, and environmental regulations—can trigger powerful fiduciary duty claims against directors and officers in the United States. These suits promise to deter corporate lawbreaking by provoking the judicial articulation of norms governing transnational business operations with vast implications for understanding the social responsibility of modern corporations

Reparations for Project One Hundred Thousand

During the Vietnam War, the U.S. Department of Defense (“DOD”) created a new program that targeted marginalized communities, resulting in thousands of deaths and adversely impacting the lives of more than one hundred thousand others. This Article—which draws on original archival research from obscure DOD files—uncovers the origins and effects of the program called “Project One Hundred Thousand.” This research reveals that the program drafted members of impoverished communities to serve in the place of more privileged men, who received draft exemptions. The program enabled the U.S. government to continue the war at scale without incurring an unacceptable loss of political support for the war from middle-class voters. Project One Hundred Thousand achieved the goal of drafting and inducting more service members by revising the mental aptitude and physical military entrance standards, admitting service members who were previously ineligible to serve in the armed forces. Then–Secretary of Defense Robert McNamara justified the program to the American public, saying it would “uplift” underprivileged men. Instead, the program sent more than half of these men, called “New Standards Men,” to a combat zone and thousands of them to their deaths. The U.S. military issued over one hundred thousand surviving New Standards Men less than honorable discharges—potentially resulting in lifelong exclusion from benefits at the Department of Veterans Affairs, imposing severe economic, social, and psychological costs to these service members. This Article makes two distinct contributions. First, it spotlights an example of how a “system” of systemic racism gets built and draws attention to how systemic racism tangibly impacts the armed forces. Second, it offers a way for the U.S. government to address the injustices it inflicted by suggesting presumptive discharge relief, meaning the DOD would presume the discharge was unjust. The proposed remedy is modeled after the remedy afforded to victims of the military’s past discriminatory policies based on sexual orientation. Informed by this Author’s professional experience representing New Standards Men, this proposal offers a way for the U.S. government to make reparations for the harm it inflicted on marginalized communities

The Authoritarian Commons: Neighborhood Democratization in Urban China

Based on six-year fieldwork across China including over 200 in-depth interviews, this book provides an ethnographic account of how hundreds of millions of Chinese homeowners practice democracy in and beyond their condominium complexes. Using interviews, survey data, and a comprehensive examination of laws, policies and judicial decisions, this book also examines how the party-state in China responds to the risks and benefits brought by neighborhood democratization. Moreover, this book provides a framework to analyze different approaches to the authoritarian dilemma facing neighborhood democratization which may increase the regime\u27s legitimacy and expose it to the challenge of independent organizations at the same time. Lastly, this book identifies conditions under which neighborhood democratization can succeed.https://scholarship.law.duke.edu/faculty_books/1035/thumbnail.jp

Finding a Purpose in Bruen\u27s World

Fewer than seven months after the Highland Park mass shooting, the Illinois General Assembly passed the Protect Illinois Communities Act (“PICA”), a statewide ban on assault weapons and large-capacity magazines. Gun-rights advocates have characterized PICA (and other similar strong state gun laws) as unconstitutional laws intentionally enacted to defy the Supreme Court’s protection of the right to keep and bear arms. In response to such severe accusations, especially in light of New York State Rifle & Pistol Ass’n v. Bruen, this Note assesses these claims using PICA as a case study. Through an investigation of its legislative history—an investigation that analyzes everything from floor-debate transcripts to committee-hearing recordings—this Note observes that PICA’s drafters and supporters were constitutionally conscientious when they enacted the assault weapon and large-capacity magazine ban. To help other state legislators avoid accusations of defying their oaths of office, this Note also investigates the Seventh Circuit’s application of Bruen’s text-and-history test to hold PICA to be likely constitutional. This inquiry makes two related findings. First, it would be prudent for state legislators to articulate their purpose for enacting a firearms ban in the text of the ultimate bill. Second, to accomplish this first task, state legislators should avoid resorting to procedural shortcuts—like the gut and replace tactic used to pass PICA—to enact firearms bans. If constitutionally conscientious state legislators wish to respond meaningfully to gun violence with strong gun regulation, they must still respect the legislative procedural processes. Ultimately, even if the ends are legitimate, the means must always be proper

Music Copyright, Creativity, and Culture

Music Copyright, Creativity, and Culture is an interdisciplinary introduction to the economics, history, and law that shape the music we love. The book has an innovative design, combining accessible prose with timelines, infographics, flowcharts, and excerpts from a graphic novel. Through a series of chapters that take readers step by step through the fundamentals of copyright and creativity, Jennifer Jenkins clarifies basic concepts, lays out an engaging history, points out cultural effects of legal rules, and tells scores of stories of great musical controversies, past and present. The book is paired with a series of Spotify and YouTube playlists, so that readers can listen to the material under review. The end result is neither dry nor obscure. And this is as it should be, because the legal rules surrounding our musical culture are both important and captivating.You have probably heard stories where one musician is accused of copying another’s song. Maybe one of your favorite artists has been involved in such a dispute. By the time you finish reading this book, you know what the law might say about it: the lines it would draw between legitimate inspiration by shared cultural themes and outright theft that will result in substantial monetary damages. But you will know a lot more. You will have explored how a society even comes to think of music as something that can be owned: the cultural, technological, economic, and legal prerequisites of the system. You will have traced out the history of the great technologies that affected music, from musical notation—the invention of writing, musically speaking—through to the printing press, the player piano and phonograph, the radio, the internet, and generative AI. You will have thought through how we set up incentives to make, and to distribute, the music all of us love. How can society ensure that the next great composer or performer devotes her time and talent to that task instead of something else? How can we set up a system that gives creators control of their work, and yet still leaves free the genres, styles, techniques, and other building blocks that make up the musical commons, upon which all artists draw?By the time you finish this book you should be able to have an informed opinion about where we need to strike that balance, and whether the law we have today has done a good job of doing so. You will understand the legal difficulties in clearing samples and in navigating the tangled thicket of music licenses, each invented to deal with a particular technology of the past. You will delve into evolving business models, today’s streaming economy, and the challenges posed by generative AI. But you will also have gone deeper. For example, the book examines the history of attempts to control music in American culture along racial lines: from the legal and social barriers that prevented African-American and other minority musicians from receiving the credit and financial reward their talents deserved, to the vexed question of appropriation and the line between benign mutual cultural influence and unjust, uncredited exploitation. Along the way, you will get to think about the law, culture, aesthetics, and economics of an art form that touches us more profoundly than we know.https://scholarship.law.duke.edu/faculty_books/1036/thumbnail.jp

Discretionary Immigration Detention

Immigration detainees challenging immigration judges’ bond decisions are hitting a jurisdictional wall—federal courts are given license to ignore errors that immigration judges make in determining dangerousness and flight risk, because such decisions can be categorized as “discretionary.” This license comes from a 1996 amendment to the Immigration and Nationality Act that removed federal courts’ jurisdiction over discretionary decisions to detain for immigration purposes. Detainees’ important liberty interests are left to the whims of a single immigration judge, who determines bond under conditions representing an implicit bias minefield. This Article explores the justifications for unreviewable discretion and for stripping federal court jurisdiction over immigration decisions and argues that none of these justifications are applicable when an immigration judge decides whether to detain a person pending their removal proceedings. The Article also suggests manners by which the judiciary can limit the reach of this jurisdiction-stripping statute to ensure that immigration detainees will not face an unclimbable wall when seeking federal court review of their bond decisions