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Volume 109 - Issue 2


Artificial Intelligence and Role-Reversible Judgment

Kiel Brennan-Marquez & Stephen Henderson | January 1, 2019

Intelligent machines increasingly outperform human experts, raising the question of when (and why) humans should remain ‘in the loop’ of decision-making. One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves. In this Article, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to be a meaningful sense in which the participants’ roles in the decisional process could always be inverted. Role-reversibility infuses the act of judgment with a ‘there but for the grace of god’ dynamic and, in doing so, casts judgment as the result of self-rule. After defending role-reversibility in concept, we show how it bears out in the paradigm case of criminal jury trials. Although it was not the historical impetus behind the jury trial—at least, not in any strong sense—we argue that role-reversibility explains some of the institution’s core features and stands among the best reasons for its preservation. Finally, for the sci-fi enthusiasts among us, role-reversibility offers a prescription as to when the legal system will be ready for robo-jurors and robo-judges: when it incorporates robo-defendants.

Third-Class Citizenship: The Escalating Legal Consequences of Committing a “Violent” Crime

Michael O'Hear | January 1, 2019

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions—and sometimes even just charges—for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification from employment in certain fields, and a loss of parental rights, among many other “collateral consequences.” While a criminal conviction of any sort relegates a person to a kind of second-class citizenship in the United States, a conviction for a violent crime increasingly seems even more momentous—pushing the person into a veritable third-class citizenship. This Article provides the first systematic treatment of the legal consequences that result from a violence charge or conviction. The Article surveys the statutory law of all fifty states, including the diverse and sometimes surprisingly broad definitions of what counts as a violent crime. While the Article’s aims are primarily empirical, concerns are raised along the way regarding the fairness and utility of the growing length and severity of sentences imposed on “violent” offenders and of the increasingly daunting barriers to their reintegration into society.

Managing Digital Discovery in Criminal Cases

Jenia I. Turner | January 1, 2019

The burdens and challenges of discovery—especially electronic discovery—are usually associated with civil, not criminal cases. This is beginning to change. Already common in white-collar crime cases, voluminous digital discovery is increasingly a feature of ordinary criminal prosecutions. This Article examines the explosive growth of digital evidence in criminal cases and the efforts to manage its challenges. It then advances three claims about criminal case discovery in the digital age. First, the volume, complexity, and cost of digital discovery will incentivize the prosecution and the defense to cooperate more closely in cases with significant amounts of electronically stored information (ESI). Second, cooperation between the parties will not be sufficient to address the serious challenges that digital discovery presents to the fair and accurate resolution of criminal cases. And third, for that reason, digital discovery in criminal cases needs to be regulated more closely. In crafting such regulation, courts and legislators can build on the civil procedure model, which has grappled with the challenges of electronic discovery for over two decades. The civil procedure experience suggests that cooperation between the parties, active judicial involvement, and more detailed rules are essential to the effective management of digital discovery. The civil litigation model has its limitations, however, and policymakers must chart new ground to address some of the unique demands of criminal cases. Recognizing the significant resource and bargaining disparities in criminal cases, judges need to limit certain negotiated waivers of discovery so as to prevent abuse. Where the interests of justice demand it, courts may also need to help defendants obtain access to digital discovery in detention or gather digital evidence from third parties. These and other measures can help ensure that the cost and complexity of digital discovery do not undermine the fairness and accuracy of criminal proceedings.


Perception Versus Punishment in Cybercrime

James T. Graves, Alessandro Acquisti, & Ross Anderson | January 1, 2019

Regulating High-Frequency Trading: The Case for Individual Criminal Liability

Orlando Cosme, Jr. | January 1, 2019

The popular imagination of securities trading is a chaotic, physical stock exchange—a busy floor with hurried traders yelling, “buy, buy, buy!” While this image is a Hollywood and media favorite, it is no longer accurate. In 2019, most securities trading is conducted electronically on digital markets. One type of trading strategy, high-frequency trading, utilizes algorithms, data centers, fiber optic cables, and supercomputers to obtain an edge in the market. High-frequency trading has leveraged advancements in technology to constitute over half of all trading volume in a given day. High-frequency trading, however, has come under scrutiny in recent years as it has increased market susceptibility to certain forms of criminal conduct. In 2017, the U.S. Court of Appeals for the Seventh Circuit upheld the first conviction of a high-frequency trader for spoofing, a type of trader misconduct that is made more susceptible by high-frequency trading. While scholars have debated whether high-frequency trading should be regulated more than other types of trading and if so, what the regulations might look like, no one has analyzed criminal law as a vehicle to regulate high-frequency trading. This Comment makes the case that individual criminal liability is an ideal tool to regulate misconduct in the high-frequency trading space. Two features of high-frequency trading make the strategy particularly challenging to regulate: 1) it is difficult to draw a line between legitimate and illegitimate behavior in high-frequency trading; and 2) it is difficult to pinpoint an exact definition of what high-frequency trading is. Criminal liability has several advantages over civil liability with respect to these challenges. First, the mens rea component and higher standard of proof required in criminal liability will ensure that high-frequency traders found criminally liable engaged in illegitimate behavior with a higher degree of certainty. Second, the threat of criminal prosecution will better serve the goal of deterring high-frequency trader misconduct. Within the context of criminal liability, individual criminal liability is preferable to corporate criminal liability because the former better furthers the goal of deterrence. The identity problem that corporate liability helps to solve—in some corporate contexts it is impossible to pinpoint culpability on any single individual—is not an issue in high-frequency trading; and individual criminal liability is socially more preferable as a matter of policy. Accordingly, the government should increase criminal enforcement of high-frequency traders to promote its goal of safeguarding market integrity.

Ziglar v. Abassi and its Effect on the Constitutional Rights of Federal Prisoners

Julio Pereyra | June 1, 2019

In June 2017, the Supreme Court decided Ziglar v. Abbasi and held that prisoners unlawfully detained post-9/11 did not have a Bivens claim against policy-level federal executive branch officials and likely had no Bivens claim against the wardens at the facility where they were detained. In doing so, the Court drastically altered the analysis for deciding when a Bivens claim is new and for determining when a new Bivens claim should be either allowed by a court or precluded under a “special factors” analysis. This change in the Bivens framework severely restricts the availability of factually novel Bivens claims, even those based on constitutional rights whose violation have generally been found to provide a cause of action. The net result is that in many areas, Bivens probably no longer serves a deterrence function that is critical in safeguarding constitutional rights. The most notable of these areas is federal prison litigation, where Bivens claims against individual officers are necessary for securing a number of rights guaranteed by the Eighth Amendment. Although prisoners subject to Eighth Amendment violations retain some remedies, without Bivens the remedial framework is incomplete and insufficient to fully assure constitutional rights. This remedy gap is the result of an unprecedented shift away from the language and logic of previous Bivens opinions. While the Court declined to adopt an even more radical retrenchment of Bivens, one that would restrict it to the facts of the first three cases adopting the remedy, there is a serious contention that its convoluted formulation of the rules reaches an identical substantive result. Therefore, the result of the Ziglar opinion is doubly troubling. Not only has the Court potentially left hundreds of thousands of prisoners with insufficient protection of their rights, but their means of doing so may lack the clarity necessary to create the appropriate response from other institutional actors.