Jeffrey Omari, Pablo Rueda-Saiz & Richard Ashby Wilson

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR’s unique methodological and substantive contributions, we explore the movement’s relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, crossnational exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of “looking up, down, and sideways.” Notably, NLR embraces both “top-down” and “bottom-up” methods, providing comprehensive insights into the intricate interactions and competition between various actors and legal institutions. In contrast to perspectives that narrow the law to a mere instrument of social control, NLR recognizes that the law is a complex and nuanced social phenomenon with relative autonomy that often leads to unintended consequences. Continue reading →

E. Gary Spitko

This Article explores the important but largely unexplored relationship between workplace artificial intelligence (AI) and human flourishing. More specifically, the Article examines the potential impact of workplace AI decision tools on such critical matters as workers’ human dignity, workplace and personal autonomy, and the opportunity for upward mobility. AI can analyze data far more quickly and efficiently than humans. Moreover, AI computer models are far superior to people in uncovering subtle correlations in large amounts of data and learning from those correlations. Thus, workplace AI decision tools teach themselves to choose the criteria for recruitment, hiring, compensation, promotion, and termination of workers and ground their employment decisions firmly in empirical data that humans fail even to perceive. At the same time, these AI tools may insult human dignity, threaten worker autonomy, and serve as an agent of social ossification. Continue reading →

William S. Fallon

Government technology that exclusively detects illegal conduct is per se constitutional. Today, the Fourth Amendment provides no protection—zero—against government technology that identifies illegality without also revealing private, innocent behavior.

Meanwhile, alarmingly, government is rapidly developing—and deploying— technology that bypasses the need to examine private, innocent behavior in its detection of wrongdoing. Government can know there is contraband in your bedroom drawer without the need to rummage through that drawer, your home, or any of your private information and possessions. Government can know there is illegal content on your phone without the need to search through that phone or any of your private accounts and data. If enforcement technologies continue to develop apace, under existing law, government will be able to detect—and punish—every instance of illegal behavior, every time, without violating the Fourth Amendment. This imminent, staggering government power is called “perfect enforcement of law.” Continue reading →