Watching the Watchers: Enemy Combatants in the Internment Shadow

In the past, the government has avoided accountability for the atrocity of allowing the internment of Japanese Americans during WWII. Kang examines whether the federal judiciary is again shying away from its responsibilities of holding the other branches accountable for their actions as they conduct their war on terror

What Judges Can Do About Implicit Bias

“Implicit bias” was not well known in legal communities twenty years ago. But now, the idea of implicit bias circulates widely in both popular and academic discussions. Even the casually interested judge knows a great deal about the topic. Still, even as the problem of implicit bias has grown familiar, potential solutions remain out of focus. Specifically, what can judges do about implicit bias, in their capacities as managers of a workplace, as well as vessels of state power? In 2009 I wrote a Primer for the National Center for State Courts, which described the challenge of implicit bias to judicial audiences.1 In 2012, I was the lead author of a more systematic examination titled Implicit Bias in the Courtroom.2 That author team included not only legal scholars but also psychology professors such as the inventor of the Implicit Association Test (IAT), as well as a sitting federal judge. Together, we described the then-state-of-the-art and recommended potential countermeasures. The goal of this article, nearly a decade later, is to update the scientific understanding since 2012. It also revises, reorganizes, and streamlines recommendations for judges who believe that implicit bias is a genuine problem but don’t know what to do about it.3 To keep length manageable, it focuses on the challenge of implicit biases held by judges themselves and does not directly address the biases held by others, such as police officers, probation officers, prosecutors, and jurors. It also focuses mostly on individual-level responses that judges can take themselves although institutional-level reforms may be what’s most important

Fair Measures: A Behavioral Realist Revision of "Affirmative Action"

New facts recently discovered in the mind and behavioral sciences have the potential to transform both lay and expert conceptions of affirmative action. Drawing on recent findings in implicit social cognition (ISC) and applying a legal methodology called behavioral realism, the authors advance four arguments. First, evidence of pervasive implicit bias allows us to avoid problematic backward- and forward-looking justifications for affirmative action and instead focus on addressing discrimination here and now. Second, evidence of biased interpretation and stereotype threat suggests that merit is currently being mismeasured, and that more accurate measurement processes should be adopted. Third, evidence of the malleability of implicit bias suggests interventions different from the traditional social contact hypothesis, such as deploying debiasing agents. Finally, instead of an arbitrary deadline, a better terminus for various affirmative action programs is when our society reaches alignment between explicit normative commitments and measures of implicit bias. Through this analysis of the legal and policy implications of cutting-edge social cognitive research, the authors shed the freighted term affirmative action and produce instead a scientific and normative common ground in favor of fair measures.Psycholog

Communications Law and Policy: Cases and Materials (Edition 8.0)

This is the most current edition of this book. Disclaimer: This book is intended to be used for academic and reference purposes only. The publisher and authors are not rendering legal or professional advice and this book is not a substitute for such advice. Any opinions expressed in this book are the authors&rsquo; alone and should not be imputed to their employers or affiliated organizations. This text has gone through eight editions across nearly a quarter century. The first edition appeared in 2001, published by Aspen Law &amp; Business. The next three editions were published by Foundation Press, up to 2012. In 2016, Jerry Kang added Alan Butler as a co-author, and we decided to self-publish the fifth edition. Even back then the costs of legal casebooks had gotten out-of-hand, and legal publishers were doing little more than binding pages into a physical item. So, we decided to cut out the intermediary and provide substantial cost savings for students. In 2023, Blake Reid joined the author team, and we took the further step of releasing edition 7.5 of the book as a free PDF under a Creative Commons license. We&rsquo;ve now reached the substantially revised eighth edition. Throughout all editions, the book has retained one fundamental pedagogical principle: Organize learning first by concepts, then by industry. Our goal has been to prioritize a deeper conceptual understanding over industry-specific details because industries, and the technologies that make them possible, are always in flux. The current list of concepts is: (1) power, (2) entry, (3) pricing, (4) indecent content, (5) access, (6) classification, (7) internet platforms, and (8) privacy. The book devotes a chapter to each concept, with the first four chapters exploring a particular concept across multiple industries ranging from legacy telephony, broadcast, and cable TV to modern day internet. Chapters 5 and 6 jointly tackle the concepts of access and classification, with Chapter 5 focusing particularly on access issues in legacy industries and Chapter 6 examining how the legal classification of internet service providers has shaped access policy in the context of net neutrality. Chapter 7 shifts upward in the internet&rsquo;s layer stack, to explore the responsibility of internet platforms for the content that they host. The final chapter surveys communications privacy topics that are appropriate for both communications law courses and privacy law courses. Although law and technology have evolved over the past quarter century, the book&rsquo;s pedagogical commitments have remained the same, even as we have updated, simplified, and pruned. One word of caution to faculty and students alike: the Supreme Court&rsquo;s titanic decisions in Loper Bright and NetChoice on the last opinion day of the 2023&ndash;2024 term (just weeks before the release of this edition) are likely to have enormous, difficult-to-predict impacts on the future of American communications law. We have done our level best in this edition&rsquo;s updates to set the table for vibrant conversations in your classrooms about the shifting administrative and constitutional law foundations of this field. But caveat emptor: things may evolve significantly and unpredictably over the next year. We encourage an especially high degree of situational awareness.</p