Predicting Enemies

Actors in our criminal justice system increasingly rely on computer algorithms to help them predict how dangerous certain people and certain physical locations are. These predictive algorithms have spawned controversies because their operations are often opaque and some algorithms use biased data. Yet these same types of predictive algorithms inevitably will migrate into the national security sphere as the military tries to predict who and where its enemies are. Because military operations face fewer legal strictures and more limited oversight than criminal justice processes do, the military might expect—and hope—that its use of predictive algorithms will remain both unfettered and unseen.

This Article shows why that is a flawed approach, descriptively and normatively. First, in the post-September 11 era, any military operations associated with detention or targeting will draw intense scrutiny. Anticipating that scrutiny, the military should learn from the legal and policy challenges that criminal justice actors have faced in managing the transparency, reliability, and lawful use of predictive algorithms. Second, the military should clearly identify the laws and policies that govern its use of predictive algorithms. Doing so would avoid exacerbating the “double black box” problem of conducting operations that are already difficult to legally oversee and contest, using algorithms whose predictions are often difficult to explain. Instead, being transparent about how, when, why, and on what legal basis the military is using predictive algorithms will improve the quality of military decision-making and enhance public support for a new generation of national security tools.

Unconstitutionally Illegitimate Discrimination

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is, and should be, enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm it causes to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that constitutional doctrine, in its broad outlines, reflects a legitimacy-based view. In the Equal Protection context, courts have set out how discriminatory goals are not legitimate state interests. In the executive action context, courts state that absent a legitimate and bona fide justification, the Executive may not have power delegated from Congress to act. What courts have not done is specified what happens when the hammer falls: how intent disables government policymaking and for how long. The legitimacy-focused approach can neutralize government decisions, even when the government tries to re-do its policy and claim new reasons. Third, I argue that the legitimacy-focused approach toward constitutional intent doctrine that I advance in this Article is normatively preferable. The approach does incentivize insincere reasons for government actions. However, I argue that the advantages outweigh those costs. There are real benefits to even insincere expressions of non-discrimination. Conversely, when the government makes discriminatory statements, this is very strong evidence of discriminatory motive. During a time of nationwide litigation of intentional discrimination claims in areas including immigration rights, voting rights, and religious non-establishment, it has never been more important to set out the doctrine, the costs, and the consequences of unconstitutionally illegitimate intent.

A “Corporate Democracy”? Freedom of Speech and the SEC

In Citizens United, the Supreme Court stated that increased recognition for corporate speech rights is not problematic because corporations are themselves mini-democracies; shareholders have mechanisms to check management control over corporate speech. But due to statutory changes and judicial actions, these checks and balances are no longer effective. Managers have nearly unbridled power over corporations’ expanded speech rights, allowing them to use companies as outsized megaphones for their own personal political and social positions.

An axiom of First Amendment doctrine is that the remedy for speech that some find problematic is “more speech, not enforced silence.” Thus, if the increase in speech rights for corporate managers is an issue, the solution is not to rein in those rights but rather to see how investors’ speech is limited and to remove those barriers, enabling investors to fully participate in the corporate democracy.

Securities and Exchange Commission (“SEC”) regulations prohibit investors from communicating about corporate elections without filing disclosures and providing proxies to every shareholder. These regulations limit investor speech and are slanted in favor of management because they exacerbate the collective-action problem among shareholders who oppose poorly performing managers. Investors should challenge these regulations on First Amendment grounds, and courts should apply some form of exacting scrutiny because speech in corporate elections is as important as political speech in many circumstances. Striking down these regulations would restore balance to the investor–management relationship and allow corporate speech to fully reflect the will of companies’ true owners: their shareholders.