AI and Inequality

This Chapter examines the social consequences of artificial intelligence (AI) when it is used to make predictions about people in contexts like employment, housing and criminal law enforcement. Observers have noted the potential for erroneous or arbitrary decisions about individuals; however, the growing use of predictive AI also threatens broader social harms. In particular, these technologies risk increasing inequality by reproducing or exacerbating the marginalization of historically disadvantaged groups, and by reinforcing power hierarchies that contribute to economic inequality. Using the employment context as the primary example, this Chapter explains how AI-powered tools that are used to recruit, hire and promote workers can reflect race and gender biases, reproducing past patterns of discrimination and exclusion. It then explores how these tools also threaten to worsen class inequality because the choices made in building the models tend to reinforce the existing power hierarchy. This dynamic is visible in two distinct trends. First, firms are severing the employment relationship altogether, relying on AI to maintain control over workers and the value created by their labor without incurring the legal obligations owed to employees. And second, employers are using AI tools to increase scrutiny of and control over employees within the firm. Well-established law prohibiting discrimination provides some leverage for addressing biased algorithms, although uncertainty remains over precisely how these doctrines will be applied. At the same time, U.S. law is far less concerned with power imbalances, and thus, more limited in responding to the risk that predictive AI will contribute to economic inequality. Workers currently have little voice in how algorithmic management tools are used and firms face few constraints on further increasing their control. Addressing concerns about growing inequality will require broad legal reforms that clarify how anti-discrimination norms apply to predictive AI and strengthen employee voice in the workplace

Reply: Exploring Panel Effects

This Reply responds to methodological criticisms of an earlier empirical study of panel effects on the United States Court of Appeals, Deliberation and Strategy on the United States Courts of Appeals, which appeared in the University of Pennsylvania Law Review. That study found that federal appellate judges appeared to be more or less open to influence by their panel colleagues depending upon how the preferences of the panel members align with the preferences of the circuit as a whole. On the other hand, their willingness to avoid dissents and go along with their panel colleagues seemed unaffected by their relative alignment with the preferences of the Supreme Court. This Reply explains that this study was not intended to be a test of Frank Cross and Emerson Tiller’s whistleblower theory, although its results are to some extent inconsistent with that theory. It further discusses other methodological choices made in the original study – for example, the use of voting outcomes to measure panel effects; the decision to examine ideological alignment between a panel and the reviewing court; and the reliance on appellate cases limited to a particular subject matter area

Beyond Principal-Agent Theories: Law and the Judicial Hierarchy

This Essay critically examines the commonplace use by judicial politics scholars of principal-agent models to describe the federal judicial hierarchy. It argues that agency models are useful in highlighting certain aspects of the interaction between upper and lower courts - specifically, the existence of value conflicts and informational asymmetries - but that in other ways traditional principal-agent models fit poorly the relationship between the lower federal courts and the Supreme Court. As a consequence, these models tend to obscure important normative questions about the relationship between lower and upper courts, as well as to distort the role that law plays in judicial decision-making. This Essay proposes that instead of viewing the law as merely a signal or command to lower courts, the law should be understood as the joint product of the Supreme Court and lower courts. Producing a coherent body of law requires cooperation and coordination between the various levels of the judicial hierarchy at the same time that the law is the ground on which value conflicts between judges are played out. This revised understanding of the relationship between Supreme Court and lower federal courts as involving elements of both cooperation and conflict are likely to be more productive than traditional principal-agent models

Electronic Privacy and Employee Speech

The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees’ privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of employee privacy and increased protection for some socially valued forms of employee speech — are at odds because privacy and speech are closely connected. As privacy scholars have emphasized, protecting privacy promotes speech values by granting individuals space to explore and test new ideas, and to associate with like-minded others — activities that are often important precursors to public speech. Similarly, in the workplace context, some measure of privacy to explore ideas and communicate with others may be necessary to ensure that employees actually speak out in socially valued ways. Ironically, then, the law is simultaneously expecting more from employee speech and protecting employee privacy less, even though the latter may be necessary to produce the former

Lower Court Discretion

Empirical scholars typically model the judicial hierarchy in terms of a principal-agent relationship in which the Supreme Court, the principal, sets policy and the lower federal courts, as agents, must implement that policy faithfully. The law is a signal - the means by which the Court communicates its preferences. This article argues instead for recognizing the law as an independent normative force. Empirical scholars fail to take seriously the role of law because they reject as implausible formalistic accounts of its operation. This article advances a more nuanced account of how law shapes the decision-making environment, one that focuses on the presence of discretion. It explores how different types of discretion afford distinct types of power over law-making and case outcomes, and how that discretionary power is allocated between district and appellate courts. Paying attention to discretion suggests features of the judicial hierarchy that are commonly overlooked in principal-agent models. For example, judges\u27 goals and therefore their strategies will vary depending upon whether they seek to influence law development or merely to shape case outcomes. The article also critiques the normative assumption, implicit in principal-agent models, that lower federal courts should follow the preferences of the Supreme Court. Because law inevitably creates discretion for lower courts, a norm of compliance with superior court precedent does not necessarily require following the preferences of the Supreme Court. Many of the reasons judicial discretion exists - for example, to allocate power within the judicial hierarchy - argue against such a centralization of power in the Supreme Court

Big Data and Artificial Intelligence: New Challenges for Workplace Equality

This essay contains remarks delivered in a keynote speech at the University of Louisville Brandeis School of Law’s 35th Annual Carl A. Warns and Edwin R. Render Labor and Employment Law Institute. Big data and artificial intelligence are increasingly being used by employers in their human resources processes in ways that control access to employment opportunities. This essay describes some of those developments and explains how practices like targeted online recruitment strategies and the use of hiring algorithms to screen applicants raise a significant risk of discriminating against protected groups such as women and racial minorities. It then considers some of the challenges these technologies pose for existing anti-discrimination law and suggests ways that the law should be interpreted to address these new threats to workplace equality

Market Norms and Constitutional Values in the Government Workplace

The conventional wisdom that public employees enjoy greater rights by virtue of the Constitution may no longer hold true. In recent cases, the Supreme Court has analogized public and private employment, with the effect of eroding the speech and privacy rights of government employees. This essay critically examines this trend, arguing that reliance on an analogy to the private sector is mistaken, because the arguments for giving private employers broad managerial discretion do not apply with the same force, or at all, to government employers. Rights-based arguments do not apply to government agencies, which are publicly-funded to achieve publicly-defined purposes and cannot assert independent rights to property or autonomy to avoid compliance with constitutional norms. Similarly, the claim that market pressures will control overreaching by the private firm has little application. In the private sector, compensation structures and competition for corporate control help to align the incentives of managers with the interests of the firm; however, those mechanisms are largely unavailable in the public sector. Instead, public accountability is key to ensuring that government managers act within the bounds set by the public’s interest. Because public employees stand in a unique position to observe improper government conduct, their constitutional speech and privacy rights should be interpreted, not by reference to market norms, but with an eye to protecting the mechanisms of public accountability

The Colorblind Lottery

Although the Supreme Court upheld Michigan Law School\u27s admissions policies in Grutter, the multiple opinions in that case revealed the deep divisions that remain over the legitimacy of race-conscious policies and the meaning of equal protection. At the heart of this division lies disagreement over the concept of colorblindness. For Justices Scalia and Thomas, as well as the advocacy groups that backed the plaintiffs in Grutter and Gratz, colorblindness is an absolute imperative, prohibiting race-conscious decision-making in all but the most dire situations. This insistence on formal colorblindness has lead to the conclusion in several recent court cases that race-conscious decision-making is so problematic that even a lottery is preferable. Although this claim has gone largely unnoticed, it follows logically from an insistence on formal colorblindness. This Essay examines the juxtaposition of race and chance as one way of unpacking the meaning of colorblindness. The demand that decision-making be colorblind is often motivated by basic notions of fairness: persons should be judged according to their individual merit, not some irrelevant, arbitrary criterion over which they have no control. Yet decision by lot does not necessarily promote these values any more than taking race into account. Lotteries may appear neutral because they rely on chance to select winners; however, this focus masks the substantive choices that determine who is and who is not given a chance to participate. Comparing race and chance also helps conceptualize the burden imposed by race-conscious policies. Far from what the rhetoric suggests, race-conscious policies do not necessarily deprive whites of fixed entitlements. Instead, their impact is to alter the odds of success between racial groups. And in situations, like higher education, in which white claimants far outnumber racial minorities, the impact on white applicants is often quite minimal. Contrasting race-conscious decision-making with choosing by lot reveals that colorblindness is often merely shorthand for other types of fairness arguments. To continue to insist on colorblindness in situations where those arguments do not apply - for example, when the alternative is a lottery - reveals the inherent circularity of formal colorblindness

Data Mining and the Challenges of Protecting Employee Privacy Under U.S. Law

Concerns about employee privacy have intensified with the introduction of data mining tools in the workplace. Employers can now readily access detailed data about workers’ online behavior or social media activities, purchase background information from data brokers, and collect additional data from workplace surveillance tools. When data mining techniques are applied to this wealth of data, it is possible to infer additional information about employees beyond the information that is collected directly. As a consequence, these tools can alter the meaning and significance of personal information depending upon what other information it is aggregated with and how the larger dataset is analyzed. With data mining, individual privacy may be threatened not by the types of information actually collected, but because of what can be inferred from it. This poses a challenge for the law, which often conceptualizes the harm of privacy intrusions in terms of the sensitivity or highly personal nature of information collected or disclosed. This article explores this dilemma by examining three examples of employee privacy protection under US law: anti-discrimination law’s protection of medical and genetic information, the common law privacy tort’s protection of embarrassing or humiliating intrusions or disclosures, and the Fair Credit Reporting Act’s protection against erroneous data. These laws all rest on the assumption that particular information can be identified as problematic and protected. However, because data mining techniques can infer new information, this approach will be largely ineffective in addressing the privacy threats posed by these technologies

The Family and Medical Leave Act of 1993: Ten Years of Experience: Introduction

On February 5, 1993, in a Rose Garden ceremony, President Bill Clinton signed the Family and Medical Leave Act (FMLA) into law, declaring that workers “will no longer need to choose between the job they need and the family they love.”1 The signing ceremony was significant for a number of reasons. It marked an early legislative victory for a new administration, signaling its commitment to ending gridlock in Washington. It also symbolized changing priorities: earlier versions of the legislation had twice been enacted by Congress and then vetoed by President George H.W. Bush. With its focus on the needs of ordinary workers and families, the FMLA meshed with the Clinton administration’s message that it intended to “give this government back to the American people.