Browse By:

Clear Filters x

Volume 114 - Issue 1


Role-Reversible Judgments and Related Democratic Objections to AI Judges

Ebrahimi Afrouzi, Amin | December 22, 2023

In a recent article published by this journal, Kiel Brennan-Marquez and Stephen E. Henderson argue that replacing human judges with AI would violate the role-reversibility ideal of democratic governance. Unlike human judges, they argue, AI judges are not reciprocally vulnerable to the process and effects of their own decisions. I argue that role-reversibility, though a formal ideal of democratic governance, is in the service of substantive ends that may be independently achieved under AI judges. Thus, although role-reversibility is necessary for democratic governance when human judges are on the job, it may not be so when AI judges replace them. One broader implication for normative evaluation of disruptive technologies follows: formal and substantive ideals that often align must be independently examined in the evaluation of disruptive technologies. This is because these formal and substantive ideals may no longer align under the factual circumstances that come to govern when such technologies are deployed.

Role-Reversibility, AI, and Equitable Justice – Or: Why Mercy Cannot Be Automated

Henderson, Stephen E.,Brennan-Marquez, Kiel | December 22, 2023

A few years ago, we developed the concept of “role-reversibility” in AI governance: the idea that it matters whether a party exercising judgment is reciprocally vulnerable to the effects of judgment. This idea, we argued, supplies a deontic reason to maintain certain spheres of human judgment even if (or when) truly intelligent machines become demonstrably superior in every utilitarian sense. While computer science remains far from that holy grail, generative AI is raging through systems as diverse as healthcare, finance, advertising, law, and academe, making it imperative to further shore up our claim. We do so by situating role-reversibility within the long arc of criminal justice philosophy, from Anaximander to Aristotle to Seneca. Simply put, role-reversibility facilitates mercy. And mercy is both (1) central to the operation of a humane legal system and (2) impossible, even in principle, to automate.

Volume 114 - Issue 2

Zero-Option Defendants: United States v. McLellan and the Judiciary’s Role in Protecting the Right to Compulsory Process

Onwuchekwa-Banogu, Wisdom U. | January 22, 2024

How does one obtain evidence located outside the United States for a criminal trial? For prosecutors, the answer is an exclusive treaty process: Mutual Legal Assistance Treaties (MLATs). Defendants, on the other hand, may only use an unpredictable, ineffective, non-treaty process: letters rogatory. The result is a selective advantage for law enforcement at the expense of the defendant. Though this imbalance necessarily raises Sixth Amendment Compulsory Process Clause concerns, MLATs have remained largely undisturbed because defendants still have some form of process, albeit a lesser one. But what happens when the letters rogatory process is also closed off to the defendant? When a defendant has no option but to rely on the government to submit an MLAT request on his behalf, can a district court compel the government to do so on behalf of this “zero-option defendant”? Recently, in United States v. McLellan, the First Circuit sought to answer this question. This Comment explores the role of federal courts in protecting the rights of zero-option defendants in the MLAT context. It examines the First Circuit’s reasoning in McLellan and concludes that McLellan suffers from a fundamental misunderstanding of judicial compulsory power in the face of constitutionally-violative acts by the Executive Branch. This Comment proposes that, for zero-option defendants, judicial compulsory power is necessary to prevent the Compulsory Process Clause from becoming a dead letter.

A Denial of Personhood: Why Hate Crime Legislation is Necessary to Assure Proportionality in Punishment

Godfryd, Clare | March 21, 2024

The term “hate crime” entered the mainstream in the United States during the 1980s, when advocates began to track incidents of bias-motivated violence. Since then, hate crimes have continued to garner significant attention. Advocates and legislators have traditionally justified hate crime law under the “expressive theory,” the idea that the purpose of such laws is to condemn prejudice and express messages of tolerance and equality. In this Comment, I offer a distinct justification for hate crime legislation. Specifically, I argue that, when a perpetrator targets a victim because of perceived immutable characteristics, the hate crime offender denies the victim’s agency and, ultimately, the victim’s personhood. This additional wrong—absent in crimes not motivated by bias—necessitates the heightened criminal penalties that current hate crime laws provide. First, this Comment provides a background on the development of hate crime legislation and the difficulties involved in reporting hate crimes. In Part I, I explain the importance of proportionality in assessing criminal culpability and determining appropriate punishments. In Part II, I explain how existing hate crime laws operate. In Part III, I articulate how a hate crime offender denies the agency, and ultimately the personhood, of the victim. In Part IV, I explain why proportionality in punishment requires heightened penalties for hate crime offenders because of their denial of the victim’s agency, and ultimately the denial of the victim’s personhood. Finally, in Part V, I explain why this distinct justification for hate crime legislation is relevant; in short, it recognizes bias-motivated offenses that a purely expressive approach often overlooks.

Environmental Damage is a War Crime: Analyzing the Legal Implications of the Russian Armed Invasion’s Environmental Impact on Ukraine

Rekrut, Iryna | May 20, 2024

As a result of the armed invasion of Ukraine by the Russian military, Ukraine has suffered extreme environmental damage that affects both its land and its people. This article explores the intersection of international law and environmental protection in the context of armed conflicts, with a specific focus on the Russian armed invasion of Ukraine. After describing the devastation faced by Ukraine, this article examines existing frameworks in international law such as the Rome Statute, the Geneva Conventions, customary international humanitarian law, and domestic law. This overview highlights guidelines in these frameworks that render environmental damage during war impermissible. Despite the potential for accountability under the Rome Statute, the relevant provision Article 8(2)(b)(iv) has never been utilized for an environmental claim. With this in mind, this article next delineates the scope of the environmental impact of armed conflict, both generally around the world and more specifically in the Russian armed invasion of Ukraine. Of particular note is the catastrophic impact on Ukraine’s Nova Kakhovka Dam, which serves as just one example of how to analyze Ukraine’s environmental destruction through application of international guidelines. This article concludes by advocating for the International Criminal Court (ICC) to investigate environmental destruction as a war crime, both as a matter of general practice and specifically against Russia as a reaction to its armed invasion of Ukraine. In addition to being legally sound, such an investigation would respond to global demands for accountability and would enable the ICC to demonstrate its relevance in addressing environmental offenses.