Apr 3, 2024 Ari WaldmanTechnology Law
A few years ago, the CBS show 60 Minutes ran a segment about algorithmic bias. Among other things, the segment told the story of a Black man in Detroit who had been misidentified by a facial recognition algorithm as the thief who had been caught on video stealing $4,000 worth of watches. Anderson Cooper interviewed the victim, his wife, the Detroit police chief, a lawyer at Georgetown’s Center on Privacy and Technology, and a computer scientist at the National Institute of Standards and Technology (NIST). The NIST computer scientist, Patrick Grother, was interviewed because “[e]very year, more than a hundred facial recognition developers around the world send his lab prototypes of test for accuracy.” For 60 Minutes that day, Mr. Grother was the expert on these algorithms.
No offense to Mr. Grother, who I’m sure is a smart guy, but the real experts were missing. Mr. Cooper did not interview the Black women who first brought the problem of algorithmic bias in facial recognition to academic and public attention: Joy Buolamwini, Timnit Gebru, and Deborah Raji. The incident captured in just a few minutes the long history of erasing the contributions of women and of women of color in particular. NIST, which had cited Buolamwini, Gebru, and Raji in its report, got its moment in the sun but never mentioned the underlying research; the police chief got his chance to cast the wrongful arrest as an isolated mistake. The Black women who founded the field were ignored, a fact even more remarkable given that 60 Minutes researchers and producers spent time with Buolamwini in preparation! That this happened in 2021 highlights the desperate need for Meg Leta Jones’s and Amanda Levendowski’s edited volume, Feminist Cyberlaw. Continue reading "Breathing Feminism into the Machine"
Apr 2, 2024 Shelby D. GreenProperty
Chief Justice John Marshall’s opinion in Johnson v. M’Intosh is often taken as the source of some foundational principles in property law. Indeed, it is often the first case, alternating with the fox and hunter, appearing in many textbooks.
The essential points of the case are that discovery is a basis for acquiring property and that Indian tribes held only the right of occupancy of their lands, which could be extinguished at any time at the leisure of the federal government, but in no case did they hold the power to alienate any interest. Professor Sheila Simon, in Johnson v. M’Intosh: 200 Years of Racism that Runs with the Land, offers some compelling reasons why we should not celebrate either the case or Marshall. Continue reading "Contriving a Controversy: The Value of Land in Johnson v. M’Intosh"
Apr 1, 2024 Jedidiah KronckeLegal History
There is an oddity to the place of constitutional law in the modern American legal academy. Law faculties invariably have multiple scholars devoted to its study, it is considered a core curricular course, and, yet most law graduates will never directly practice it any form. There have been debates about its pedagogical merits—revolving around assumptions that the Constitution is not just the foundational document structuring our legal system but has also always served as its deepest reservoir for exploring our most critical collective challenges. As such, constitutional scholarship sits atop an implicit hierarchy of legal inquiry shaping the litigation that putatively confronts, and resolves, the most pressing issues of our day. In turn, the Supreme Court is worthy of center stage in the social production of legal intellectual prestige.
In his mid-career opus, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, Aziz Rana attempts to deconstruct this and other such elevations of modern constitutionalism in American society. Most fundamentally, he seeks to denaturalize this state of “constitutional veneration” in which the legal academy is but one facet of the broader American embrace of “creedal constitutionalism.” The near deification of constitutional law, the Supreme Court, and the Constitution as core elements of American identity, Rana argues, is a relative novelty in American history. Every element of our current reverential preoccupation with the Constitution, whether in the legal academy or in our larger social politics, simply did not exist for most of the nation’s collective history. Continue reading "America’s Constitutional Self-Sabotage: Escaping the Constraints of Imperial Accommodation"
