Current Print Issue

Vol. 166, Issue 4

  April 2018


Featured Article

The Decline of Supreme Court Deference to the President

By
Lee Epstein & Eric A. Posner
166 U. Pa. L. Rev. 829 (2018)

According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the solicitor general’s office, the president usually wins. However, a new analysis of the data reveals that the conventional wisdom is out of date. The historical dominance of the president in the Supreme Court reached its apex in the Reagan administration, and has declined steadily since then. In the Obama administration, the presidency suffered its worst win rate—barely 50%. After documenting this trend, we discuss possible explanations. We find evidence that the trend may be due to the growing self-assertion of the Court and the development of a specialized, private Supreme Court bar. We find no evidence for two other possible explanations—that the trend is due to greater executive overreaching than in the past, or to ideological disagreements between the Court and recent presidents.


Featured Comment

A Municipal Speech Claim Against Body Camera Video Restrictions

By
Matthew A. De Stasio
166 U. Pa. L. Rev. 961 (2018)

This Comment describes one approach to securing public access to the data collected by police‐worn body cameras (PWBC). Ever since the rapid expansion of body camera programs following highly publicized police shootings (particularly the shooting of Michael Brown in Ferguson, Missouri, in the summer of 2014), state legislatures across the country have rushed to decide who should have access to the collected video and how to limit its public release. Over half of the major police departments across the country are using body cameras supplied by a single manufacturer alone, and the storage and release of the video is an urgent issue. The patchwork of laws governing the disclosure of PWBC data has left the public without simple or consistent means of accessing that information.

Every state except New Hampshire exempts police records from public records requests. Many laws which explicitly address the release of PWBC data either grant disclosure discretion to a custodian or a judge, or they prohibit release entirely, absent special circumstances. The myriad restrictions on public access has stymied the avowed purpose of implementing body camera programs: to increase the transparency and public accountability of police practices.

The goal of fostering transparency to improve community relations would be more easily achieved if local governments and police departments, in the exercise of their discretion over local affairs, could publicly release video of contested police encounters without prior restraint. Some police departments seek to do just that, either in situations of suspected unwarranted police violence or matters of national importance. For example, in October of 2017 the Las Vegas Police Department publicly released a compilation of PWBC footage only two days after the worst mass shooting in U.S. history took place. Localities may seek to do so when it would improve community relations, inform public debate of police practices, and educate residents so they can effectively participate in the process of self‐government. However, state statutes may prevent localities from securing these benefits for their citizens.

In this Comment, I argue that state laws which restrict disclosure of PWBC data by municipal governments run afoul of the First Amendment’s Free Speech Clause and are subject to constitutional challenge by the municipalities themselves.


Online Exclusives
 Last updated: May 1, 2018


Essay

Following the Letter of the Law Into Absurdity: Why the Supreme Court's Severability Rule Does Not Preclude Determining an Arbitration Provision's Enforceability Under the Law Supplied by an Agreement's General Choice-of-Law Clause

By
Paul B. Maslo
166 U. Pa. L. Rev. Online 273 (2018)

A new hire signs an employment agreement. The agreement contains an arbitration provision. Embedded in the arbitration provision is a one‐sentence delegation clause granting the arbitrator exclusive authority to decide threshold issues of arbitrability, including whether the arbitration provision is valid and enforceable. The agreement has a general choice‐of‐law clause providing that California law applies to the entire agreement, including the arbitration provision and delegation clause. An employee based outside California sues the employer in court and argues that the arbitration provision and delegation clause are unenforceable. Should the court apply California law or the law of the employee’s home state to the enforceability analysis? Several courts have confronted and wrongly answered that question in recent litigation involving Uber. Why they got it wrong—their misapplication of the Supreme Court’s severability rule—is the subject of this essay.


Response

Auditing Algorithms for Discrimination

By
Pauline T. Kim
166 U. Pa. L. Rev. Online 189 (2017)

As reliance on algorithmic decisionmaking expands, concerns are growing about the potential for arbitrary, unfair, or discriminatory outcomes in areas such as employment, credit markets, and criminal justice. Legal scholars have lamented the lack of accountability of these automated decision processes and called for greater transparency. They argue that the way to avoid unfair or discriminatory algorithms is to demand greater disclosure of how they operate. Accountable Algorithms resists this call for transparency, calling it “a naive solution.” Instead, it argues that technology offers tools—“a new technological toolkit”—that can better assure accountability.

One of the examples that Kroll et al. rely on to illustrate their argument is the goal of ensuring that algorithms do not discriminate. Many commentators have pointed out the risk that automated decision processes may produce biased outcomes, and in prior work, I have argued that serious policy concerns are raised when these algorithms exacerbate historic inequality or disadvantage along the lines of race, sex, or other protected characteristics—what I’ve referred to as “classification bias.” Recognizing that the precise meaning of discrimination is uncertain and contested, Kroll et al. do not try to resolve debates over the meaning of discrimination. Instead, without choosing among the competing definitions, they simply survey the available technical tools, suggesting that these tools will be more effective at ensuring nondiscrimination than calls for transparency.

Transparency involves outside scrutiny of a decision process, for example, by allowing third parties to examine the computer code or the decision criteria it implements. Auditing is another method for promoting transparency. When the goal is nondiscrimination, auditing could involve techniques to ensure that an algorithm follows a specified rule—for example, sorting must not occur based on race or sex. Alternatively, auditing for discrimination could take the form of examining inputs and outputs to detect when a decision process systematically disadvantages particular groups. The latter form of auditing does not involve direct examination of the decision process, but is useful in detecting patterns. This type of auditing, in the form of field experiments, is well established in the social science literature as a technique for testing for discrimination in decisions such as employment and consumer transactions. Auditing the effects of decisionmaking algorithms similarly offers a method of detecting when they may be biased against particular groups. Kroll et al., however, express skepticism about auditing as a strategy, arguing that it is not only technically limited, but also likely restricted by law. More specifically, they suggest that when an algorithm is found to have a disparate impact, the Supreme Court’s decision in Ricci v. DeStefano may prevent correcting for that bias.

This Essay responds to Kroll et al., arguing that, despite its limitations, auditing for discrimination should remain an important part of the strategy for detecting and responding to biased algorithms. Technical tools alone cannot reliably prevent discriminatory outcomes because the causes of bias often lie not in the code, but in broader social processes. Therefore, implementing the best available technical tools can never guarantee that algorithms are unbiased. Avoiding discriminatory outcomes will require awareness of the actual impact of automated decision processes, namely, through auditing.

Fortunately, the law permits the use of auditing to detect and correct for discriminatory bias. To the extent that Kroll et al. suggest otherwise, their conclusion rests on a misreading of the Supreme Court’s decision in Ricci. That case narrowly addressed a situation in which an employer took an adverse action against identifiable individuals based on race, while still permitting the revision of algorithms prospectively to remove bias. Such an approach is entirely consistent with the law’s clear preference for voluntary efforts to comply with nondiscrimination goals.


Case Note

Of Laundering and Legal Fees: The Implications of United States v. Blair for Criminal Defense Attorneys who Accept Potentially Tainted Funds

By
Philip J. Griffin
164 U. Pa. L. Rev. Online 179 (2016).

“In the common understanding, money laundering occurs when money derived from criminal activity is placed into a legitimate business in an effort to cleanse the money of criminal taint.” 18 U.S.C. § 1957, however, prohibits a much broader range of conduct. Any person who “knowingly engages” in a monetary transaction involving over $10,000 of “criminally derived property” can be charged with money laundering under § 1957.

Because § 1957 eliminates the requirement found in other money laundering statutes that the government prove an attempt to commit a crime or to conceal the proceeds of a crime, § 1957 “applies to the most open,

above‐board transaction,” such as a criminal defense attorney receiving payment for representation. In response to pressure from commentators, Congress passed an amendment two years after § 1957’s enactment defining the term “monetary transaction” so as to exclude “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.”

The statutory safe harbor found in § 1957(f)(1) has successfully immunized defense attorneys from money laundering prosecutions. However, United States v. Blair raised concerns among the criminal defense bar because of its holding that an attorney‐defendant was not entitled to protection under § 1957(f)(1). In Blair, an attorney‐defendant was convicted of violating § 1957 for using $20,000 in drug proceeds to purchase two $10,000 bank checks to retain attorneys for associates of his client. Noting that Sixth Amendment rights are personal to the accused and that Blair used “someone else’s money” to hire counsel for others, the Fourth Circuit held that his actions fell “far beyond the scope of the Sixth Amendment” and were not protected by the safe harbor. In his strongly‐worded dissent, Chief Judge Traxler criticized the court for “nullif[ying] the § 1957(f)(1) exemption and creat[ing] a circuit split.”

This Case Note discusses the implications of Blair for the criminal defense attorney who accepts potentially tainted funds and proposes a solution to ameliorate its unintended consequences. First, Part I provides relevant background information by discussing the money laundering statutory framework, the criticisms leveled at the framework as it was written, the Congressional response to that criticism, and § 1957(f)(1)’s application up until Blair. Next, Part II describes the Blair decision in detail and examines its implications. Part III then proposes a novel solution to the problems it created. Finally, the Case Note concludes with a brief word of practical advice for the criminal defense bar.