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If states begin to impose such contractual bargains for automated administrative determinations, the ‘immoveable object’ of inalienable due process rights will clash with the ‘irresistible force’ of legal automation and libertarian conceptions of contractual ‘freedom.’ This chapter explains why legal values must cabin (and often trump) efforts to ‘fast track’ cases via statistical methods, machine learning (ML), or artificial intelligence. Part I explains how due process rights, while flexible, should include four core features in all but the most trivial or routine cases: the ability to explain one’s case, a judgment by a human decisionmaker, an explanation for that judgment, and an ability to appeal. Part II demonstrates why legal automation threatens those rights. Part III critiques potential bargains for legal automation, and concludes that the courts should not accept them. Vulnerable and marginalized persons should not be induced to give up basic human rights, even if some capacious and abstract versions of utilitarianism project they would be ‘better off’ by doing so.
The modern world increasingly integrates information and communication technologies into more and more digital services. This involves the use of artificial intelligence (AI) and its algorithms with, necessarily, a transfer of data between various stakeholders, whether through networks or devices.
Each Member whose national legislation contains provisions on anti-dumping measures shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations within the meaning of Article 11. Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question.
All interested parties in an anti-dumping investigation shall be given notice of the information which the authorities require and ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question.
Except as provided for in paragraph 6, an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written application by or on behalf of the domestic industry.
When the authorities are satisfied that there is sufficient evidence to justify the initiation of an anti-dumping investigation pursuant to Article 5, the Member or Members the products of which are subject to such investigation and other interested parties known to the investigating authorities to have an interest therein shall be notified and a public notice shall be given.
The principle of legality (Article 49 Charter) is a cornerstone of criminal justice systems and has a long history in the European legal order. It has four aspects: it prohibits retroactivity, analogical interpretation, vagueness and reliance on custom in criminal law. Many of its functions find application in European law. Concomitantly, several inconsistencies and shortcomings are observed. Its application to mutual recognition is effectively excluded and the same goes for rules on jurisdiction. These two lacunae cause uncertainty in the cross-border application of criminal law. Moreover, the CJEU has sought to restrict its application to limitation rules, but with contradicting reasoning. Three significant challenges are identified in this chapter: the multilevel criminal justice created by the institutional arrangements of the European legal order; the everlasting conflict between due process and crime control observed in European criminal policy; and the lack of defined theoretical rationales and values justifying the principle of legality.
There are well-meaning efforts to address ethics that will likely make the world a better place, but care needs to be taken to avoid repeating mistakes of the past. In particular, ACL has recently introduced a new process where there are special reviews of some papers for ethics. We would be more comfortable with the new ethics process if there were more checks and balances, due process and transparency. Otherwise, there is a risk that the process could intimidate authors in ways that are not that dissimilar from the ways that academics were intimidated during the Cold War on both sides of the Iron Curtain.
In two nearly identical judgments dated July 14, 2020, the International Court of Justice (ICJ or Court) reviewed a decision taken by the Council of the International Civil Aviation Organization (ICAO) in a dispute about aviation restrictions imposed on Qatar by Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates (UAE). These cases represent the second time that the Court has heard an appeal concerning a decision of the ICAO Council, a treaty body which has executive, administrative, and dispute settlement functions. As in 1972, when the Court heard an appeal brought by India against Pakistan, the Court's 2020 judgments concern a Council decision on preliminary objections to jurisdiction and admissibility. These judgments not only reinforce the ICJ's findings in its 1972 judgment, which raised similar procedural issues, but they also highlight the scope and the limits of the Court's rare appellate function.
This chapter surveys the legal history of the term "due process of law," from Magna Carta, the Statutes of Edward III, and the Petition of Right to the writings of William Blackstone and the opinions of antebellum state-level court cases. It argues that there was no concept of "substantive due process" in the antebellum period. It refutes arguments that due process prohibited class legislation, limited states to reasonable exercises of the police powers, or underwent a change in meaning as a result of abolitionist constitutional thinkers.
The Introduction outlines the argument of the book and its methodology, distinguishing the more reliable "language of the law" originalism from less reliable versions that rely too much on legislative history or antislavery constitutional thinkers. Using this methodology, the book will show that the key provisions of the Fourteenth Amendment's first section had well-established antebellum legal meanings that chart a satisfactory middle course between interpretations that rely on what people thought in 1868 and those that allow judges to pour into the text their own extratextual values.
Perhaps not surprisingly given the government’s widespread criminal and administrative surveillance regimes, the government possesses – and then sometimes discloses – large amounts of our personal information. As in the case of a police officer threatening to out a teenage boy’s queer sexuality to a relative,1 sometimes these disclosures are ad hoc or one-off. But other times, such as pill lines in prisons where people’s HIV or mental health medications may be disclosed or broadcast to others in the line, the outings are more systematic and routine.2 Thus far, I have focused largely on solutions to problems of privacy while navigating (physical or online/cyber/digital) public space. This chapter and the next turn from problems of public privacy to issues of so-called informational privacy – unconsented to disclosure of information about someone. In other words, problems of outing. Here, I focus on government disclosures before turning in the final chapter to private-party disclosures.
In The Second Founding: An Introduction to the Fourteenth Amendment, Ilan Wurman provides an illuminating introduction to the original meaning of the Fourteenth Amendment's famous provisions 'due process of law,' 'equal protection of the laws,' and the 'privileges' or 'immunities' of citizenship. He begins by exploring the antebellum legal meanings of these concepts, starting from Magna Carta, the Statutes of Edward III, and the Petition of Right to William Blackstone and antebellum state court cases. The book then traces how these concepts solved historical problems confronting framers of the Fourteenth Amendment, including the comity rights of free blacks, private violence and the denial of the protection of the laws, and the notorious abridgment of freedmen's rights in the Black Codes. Wurman makes a compelling case that, if the modern originalist Supreme Court interpreted the Amendment in 'the language of the law,' it would lead to surprising and desirable results today.
outlines the history of citizenship as a political concept, showing that the dominant view of citizenship today is still primarily seen as nationally provided and tied inextricably to legal status, despite global and urban scholars challenging its claims of exclusivity and immigration scholars challenging its singular focus on legal status. The limited power of these critiques is due, in part, to the fuzziness of claims regarding rights and identities. The authors make a fresh start in the systematic conceptualization of citizenship, showing that legal status is not the gateway to rights as is often assumed. In its place, they develop a concept of federated citizenship as a parallel set of rights along five key dimensions, with the provision of those rights varying by jurisdiction – federal, state, and local. They also lay out important differences between progressive citizenship, regressive citizenship, and reinforcing citizenship. Finally, they move from concept formation to the development of indicators for state citizenship regimes, which sets the stage for the empirical analysis is subsequent chapters on Black citizenship rights and immigrant citizenship rights.
The paths to digital justice focus on the challenges of contemporary digital societies in reaching automated decision-making processes through software, algorithms, and information technology without loss of its human quality and the guarantees of due process. In this context, this article reflects on the possibilities of establishing judicial robots in substitution for human judges, by examining whether artificial intelligence and algorithms may support judicial decision-making independently and without human supervision. The point of departure for this analysis comes from the experience of criminal justice systems with software for judgment of the possibility of recidivism of criminal defendants. Algorithmic decision-making may improve the public good in support of judicial decision-making, but the analysis of current technology and our standards for due process of law recommends caution on the conclusion that robots may replace human judges and satisfy our expectations for explainability and fairness in adjudication.
This chapter addresses a second set of answers to parallel proceedings in the context of shareholders’ claims for reflective loss, the risks of double recovery, and the inconsistent decisions they lead to: a broader use of the mechanism of consolidation and mass claims in international investment arbitration. First, the mechanism of consolidation is analyzed in the context of investment arbitration by focusing on treaty practice and investment case law. This chapter explains why this mechanism can be useful to reduce instances of parallel proceedings and why it is particularly well suited in the context of such proceedings created by shareholders’ claims for reflective loss. The same analysis is undertaken with respect to the practice of mass claims in investment arbitration, and for similar reasons as with respect to consolidation, this chapter suggests a broader use of such multiparty proceedings in investment arbitration, especially with respect to shareholders’ claims for reflective loss.
Neither Contracting Party shall take any measures depriving, directly or indirectly, investors of the other Contracting Party of their investments unless the following conditions are complied with: (a) the measures are taken in the public interest and under due process of law; (b) the measures are not discriminatory or contrary to any undertaking which the former Contracting Party may have given; (c) the measures are accompanied by provision for the payment of just compensation. Such compensation shall represent the real value of the investments affected and shall, in order to be effective for the claimants, be paid and made transferable, without undue delay, to the country designated by the claimants concerned in any freely convertible currency accepted by the claimants.
This chapter offers a detailed review of the International Criminal Court’s (ICC’s) admissibility jurisprudence and argues that this body of case law largely requires states to mirror the same conduct (and even the same factual incidents) that the prosecutor investigates as a precondition for rendering a case inadmissible. While this approach is consistent with the coercive dimension of complementarity, it can also place a heavy burden on states, one that they may be unprepared (or unwilling) to meet. At the same time, the judicial treatment of Article 93(10), which provides the statutory basis for a ‘positive complementarity’ policy has been scant. Complementarity thus appears less as a space for constructive engagement and dialogue than a set of unifying criteria with which states must comply. While court officials and some commentators have defended the ICC’s approach, suggesting that it is technically consistent with the wording of Article 17, others have advocated a more flexible approach. The chapter thus illustrates the tension that arises between complementarity’s policy goals and the ICC’s more narrow, judicial remit. It further suggests that such tension is symptomatic of legalism: It relies on an artificial division between the court as a legal and political actor.
The chapter takes the discussion into the Contested Region. The chapter opens by exploring what historian Edward Ayers has described as the “culture of dignity.” The culture of dignity, which prevailed across the region, emphasized law, justice, and the intrinsic worth of all human beings as values that constrained the individual assertion of violence. These norms led residents of the region to impose conditions on their toleration of slave catching. The chapter then explores the impact of this culture of conditional toleration on the Underground Railroad. In placing significant limits on the behavior of slave catchers, residents created a safer environment in which fugitives from enslavement could travel more openly and with less assistance. The result was a decline in the intensity of Underground activity as activist networks grew sparser and less organized farther from the Borderland. The particular concern of communities in the region for the preservation of human dignity and due process is further illustrated through an analysis of fugitive slave cases in which cultural missteps by slave catchers alienated communities in the region, sometimes explosively.
Chapter 9 evaluates the legal precedents and practices surrounding student discipline. It begins with an analysis of the key Supreme Court cases dealing with student due process rights: Goss and T.L.O. Both establish deference to educators as the cornerstone of student discipline. Coupled with a reaction to numerous violent incidents in schools, this has resulted in an overreliance on exclusionary discipline. The balance of the chapter examines the tension between exclusionary discipline and the stated aspirations of policymakers. When scrutinized, it becomes clear that despite lofty rhetoric, exclusionary discipline is tacitly accepted. This tendency was confirmed in the recommendations of the Federal Commission on School Safety convened by President Trump. The chapter concludes by investigating the rise of the school-to-prison pipeline, and links the troubling racial disparities that have arisen in student discipline with many of the themes discussed earlier in the book. Finally, it proposes a combination of trauma-informed pedagogy and restorative justice as a more effective, constructive, and inclusive approach that will properly educate a democratic citizenry.