Balkinization: October 2018

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

All That is Solid Melts Into Air

Peter Schuck on Congress' Power to Define The Boundaries on Birthright Citizenship

Originalism, Living Constitutionalism, and Birthright Citizenship

Daffy Duck, Mickey Mouse, or Goofy?

My Comments on How to Save A Constitutional Democracy by Huq and Ginsburg

The Founding and the Origins of Our Constitutionalism, Part III

Regulating Carebots for the Elderly: Are Safety and Efficacy Sufficient Standards of Review?

Big Data: Destroyer of Informed Consent

Care Robots

Who is Your Therapy App Working For?

Authoritarian Constitutionalism in Facebookland

The Invalidity of the Proposed Executive Order on Statutory Grounds

The Founding and the Origins of Our Constitutionalism, Part II

Seeing Transparency Through: Healthcare Software, Data Privacy, and Regulation

Artificial Intelligence for Suicide Prediction

The Proposed Executive Order Attacking Babies

The Founding and the Origins of Our Constitutionalism, Part I

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Wednesday, October 31, 2018

All That is Solid Melts Into Air

Joseph Fishkin

I woke up yesterday and saw a New York Times news alert on my phone. It read, in full, as follows:

Trump Wants to End Birthright Citizenship. President Trump said he was preparing an executive order to end birthright citizenship in the United States. It’s unclear if he can do so unilaterally.

The initial Times report contained little more than this squib. (It was updated in the hours that followed.) But it turned out to be pretty typical. Much of the news coverage throughout the day treated the legal question here as one whose answer is “unclear,” “much debated,” and generally full of doubt.

When I read the alert, my first thoughts ran to media criticism. How can the Times possibly be so irresponsible as to suggest that it is “unclear,” or in any respect a close question, whether President Trump has the power through executive order to abrogate the bedrock guarantee of birthright citizenship codified in the Fourteenth Amendment? A reader inclined to be generous to the Times might observe that “unclear” here may function as a sort of journalistic term of art to describe the existence of a disagreement. In other words: Some say the earth is warming, some say it isn’t; perhaps on one (seemingly rather prevalent) view of journalistic craft, a journalist ought therefore to describe it as “unclear” whether the earth is warming.

That view tends to obscure the place where the main action is. Disagreement, yes, but disagreement among whom? For any belief, no matter how crazy or off the wall, there’s likely someone who believes it. It’s not that hard to find people who believe the earth is flat. An underrated but central part of the job of a journalist—I actually think it is one of the most important parts of the job of a journalist—is to perform a credentialing function, separating the mainstream speakers from the cranks and in that way orienting readers. Thus, a good journalist is obligated to make it plain that in the case of global warming, there is disagreement, and that disagreement consists of an overwhelming, near-unanimous scientific consensus on one side and a crew on the other side consisting of a mixture of well-paid professional obfuscators and a few contrarian cranks. (Plus most of a major American political party, for what it’s worth, which on scientific matters is not much.) This framing is controversial; it is also correct. Why? The justification is actually rather complex and has to do with a larger and well-founded background belief in the enterprise of science itself and the internal norms of the scientific community as a powerful method of gaining knowledge about objective reality. Such a background belief doesn’t mean a journalist should uncritically accept everything a scientist says about a scientific topic. But it does help with judgments of credibility. In Jack Balkin’s ever-more-relevant formulation, it helps us make judgments about what’s “off the wall” and what’s “on the wall.” Basically it helps separate the mainstream speakers from the cranks.

With the Constitution this is not so easy. Both climate change and constitutional law are subjects of hot political debate. (Earth shape, less so.) Climate change, the shape of the earth, and constitutional law are also subjects about which some speakers—scientists on the one hand, lawyers, judges, and legal academics and commentators on the other—have role-based claims to various degrees of expert knowledge and authority. The challenge for journalists in reporting on constitutional controversies in our time is that the methods one would typically use to confidently isolate the flat-earthers and the climate skeptics—to show your readers that these people are cranks—do not work in the same way in constitutional law, because they rest ultimately on foundations that are not available in constitutional law.

Imagine that many powerful people decide that the earth is flat. Suppose a powerful social movement advances this view, takes over a major political party and a major cable news network, and gains the power to appoint public officials and others who share the view. A lot of Americans would likely come to agree that the earth is flat. But here’s the thing: They’d still be cranks. Whatever any authority says, the earth is still round. The climate is still changing. You see the problem. Constitutional law, unlike the physical earth, is a human creation whose substance can and does change in significant ways as a result of complex political-legal-sociological processes of constitutional change. This creates special challenges for journalists covering controversies in constitutional law.

Posted 5:22 PM by Joseph Fishkin [link]

Peter Schuck on Congress' Power to Define The Boundaries on Birthright Citizenship

Rick Pildes

I confess to not having delved deeply into the history of the 14th Amendment's debates regarding the citizenship clause, and probably like most constitutional scholars, I simply assumed from reading the text of the provision that Congress did not have the power to deny citizenship to those born here to persons who did not enter with Congress' "permission" -- ie, legally.

But in starting to read up on this issue, I discovered that one of our leading scholars of immigration, Professor Peter Schuck, has argued for many years, starting in his 1985 book, Without Consent: Illegal Aliens in the American Polity (written with Rogers Smith), that Congress does have the power under the 14th Amendment "to regulate access to birthright citizenship for groups to whose presence or membership it did not consent." This past summer, Schuck and Smith published a long essay in which they summarized their views, which can be found here.

Of course, the question of whether Congress can legislate on this issue is a completely different question than whether the President can act unilaterally by executive order. Congress has legislated extensively in this area, and the President does not have the power to contravene Congress in this area, given the Constitution's explicit commitment to Congress of the powers over naturalization and other relevant powers Congress has that bear on this issue.

But given the discussions now emerging over the general issue of birthright citizenship and the original understanding of the 14th Amendment's citizenship clause, I thought readers would want to know of Peter Schuck's extensive discussion of this issue. I'm not endorsing Peter's views, of course, but I think many readers will want to be aware of them.

Update: After I posted this, Schuck and Smith published a Washington Post op-ed reiterating their analysis in short form, here.

Posted 2:54 PM by Rick Pildes [link]

Originalism, Living Constitutionalism, and Birthright Citizenship

Richard Primus

The point of departure for this post is a comment that Keith Whittington made on the subject of the current shouting over birthright citizenship. I thank Whittington for making suggestions about this post before it was posted.

* * *

In a contribution to the collective discussion provoked by the President’s attack on birthright citizenship, Whittington tweeted the following thought:

“I suppose if you are a living constitutionalist, you might think birthright citizenship is up for grabs. If you are an originalist, however, it is not.”

Whittington is a thoughtful scholar, and I read him here to be saying two things. One is that it is unprincipled for self-described originalists (say, the Vice President) to say that the Fourteenth Amendment does not, or might not, provide for birthright citizenship, either generally or over the range of cases that inspire the current unpleasantness. That’s because original meanings are what they are, and the original meaning of the Fourteenth Amendment provides for birthright citizenship.

The other thing I take Whittington to be saying is that living constitutionalism is susceptible to undesirable changes in constitutional doctrine in a way that originalism is not. I understand “up for grabs” in Whittington’s tweet to mean “open to legitimate contestation in the here and now.” On that understanding, the idea on offer is that living constitutionalism is open to change through reinterpretation, so it must be open to contestation over constitutional meaning. And the results of that contestation will sometimes be unfortunate. Originalism isn’t open to change through reinterpretation, so it avoids that risk.

Posted 2:07 PM by Richard Primus [link]

Daffy Duck, Mickey Mouse, or Goofy?

Gerard N. Magliocca

This will be my last post on birthright citizenship until an executive order actually issues (if it ever does). The President stated today on Twitter that "many legal scholars agree" with his position that he can by executive order end birthright citizenship for some people. If that's true, then the White House can surely produce a list of these experts. Or the OLC opinion that takes this position.

Spoiler Alert: They can produce neither.

Posted 12:27 PM by Gerard N. Magliocca [link]

My Comments on How to Save A Constitutional Democracy by Huq and Ginsburg

Corey Brettschneider

Aziz Huq and Tom Ginsburg should be lauded for their important and excellent new book, How to Save a Constitutional Democracy. They effectively show that most failures of democracy in the last century didn’t appear suddenly and obviously, like a coup. Rather, contemporary authoritarians have used pre-existing legal and constitutional mechanisms to gradually remove the key features of liberal democracies. This is a book that needs to be read and studied closely by scholars.

Posted 11:26 AM by Corey Brettschneider [link]

The Founding and the Origins of Our Constitutionalism, Part III

Guest Blogger

Jonathan Gienapp

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

III. Originalism and the Original Constitution

If, following the previous installment of my response, I am right that central aspects of our constitutionalism are not, as is often assumed, inexorable byproducts of the Constitution, but instead are an optional set of practices that have grown up around it, then—as several readers note—that surely holds implications for debates over constitutional originalism. But it is not obvious what those implications are, and, as both Jack Balkin and William Baude indicate, they could vary (and perhaps dramatically) depending upon which kind of originalist one is. Through constructive engagement with my work, each of them identifies different reasons why (at least some) forms of originalism are compatible with my account of the Founding. Even if one accepts their well-reasoned arguments, though, I think many originalists would have difficulty accepting some of what Balkin and Baude point to, at least not without revising longstanding commitments.

Balkin concedes that originalists’ unifying precept—that the original meaning of the Constitution was fixed at the time of adoption—“presumes a particular vision of what the Constitution is and how it operates” and he seems persuaded that this vision was not entrenched in the earliest years of the document’s existence. This fact, though, presents little concern for most originalists, he argues, since they can still believe that the purpose of interpretation is to recover original meaning even if the supporting theory was not in place at the Founding. This is partly because we are not beholden to the intentions or expectations of the Founding generation and partly because it can take time to understand the nature of what people have created. But, according to Balkin, it really comes down to a historicist argument—one the initially focuses on interpretive method but eventually spills over to the fixation thesis itself. As he write, originalists argue for this thesis on the basis of “a historical practice of reading the Constitution.” That is, originalists treat constitutional meaning as fixed not because the Constitution demands it, or because it is in the nature of interpretation, but because “of a living interpretive tradition.” If I am reading Balkin correctly, he seems to agree that originalism is a non-necessary way of thinking about the Constitution that only applies “because of the history of a particular set of rhetorical practices organized around American law and American constitutions.” Had a different set of practices emerged from the 1790s or later, a wholly different way of thinking about the Constitution might have proved natural. In this regard, originalism is not a logical byproduct of the kind of thing that the Constitution is. Instead, originalism is the logical byproduct of a historically-contingent way of imagining and arguing about the Constitution. Balkin’s historicist account indeed compliments my portrayal of the Founding.

But I suspect most originalists would have difficulty accepting Balkin’s description. While originalists are often fond of saying that their theory is based on certain normative commitments—to popular sovereignty, to supermajoritarian rule, to particular conceptions of justice, to judicial constraint—most forms of originalism really begin as theories of what the Constitution itself actually is. Whereas other theories get caught up in what the Constitution ought to be, originalism instead respects the Constitution for what it is. As Baude suggests, effectively summarizing what many originalists think, it is “just in the nature of things that writing down constitutional principles would result in a fixed Constitution that should be interpreted using originalism.” Accepting the historicist point would mean recognizing that it is not, in fact, in the “nature of things” that writing constitutions down results in a particular kind of fixity; it would mean recognizing that it is only because of a contingent set of constitutional habits and practices that we find that train of reasoning logical to begin with. This is where the Founding generation comes in. Irrespective of whether we are beholden to their specific intentions or expectations, we might nonetheless conceive of the Constitution in a particular way, not because of anything essential to the Constitution, but because of practices they contingently initiated. If nothing about the Constitution ever required us to treat it as distinctively written, and thus fixed in a certain way, if we only do so because of a non-essential set of habituated practices, then why must we continue to talk and think that way? Constitutional fidelity would not seemingly require it.

Balkin seems to agree that we don’t have to. Nothing absolutely necessitates our practices, he suggests. Their legitimacy instead derives from the fact that they are part of our living tradition that we sanction through continued usage.

This could be where Balkin and many other originalists might part ways. Ever since he unveiled his pathbreaking theory of living originalism, Balkin tethered originalism to a narrative of redemption, to an account of how the Constitution could be redeemed over time as our law. In this regard, his arguments in this symposium strike me as as a logical extension of his longstanding commitments. But most other originalists, by contrast, remain committed to a narrative of restoration, to an account of how the Constitution can be restored to what it has always been. These originalists would, it seems, be much less eager, let alone willing, to accept Balkin’s historicist account of the origins and development of constitutional practice. I imagine they would still insist that the Constitution is a text because it’s a text and that it’s fixed in a particular way because that’s the only way a constitution could be fixed. The Constitution just is these things no matter what anybody thinks about it. If what I have argued in my book is correct, then I would think these originalists would either have to explain why their particular understanding of constitutional text and fixity automatically inhered in the Constitution from the start (regardless of what practices or assumptions initially surrounded it) or they would have to offer a new set of justifications explaining why the Constitution today should be treated as a particular kind of object with a particular set of attributes even if, in fact, it was never necessary to see it that way at all.

In his characteristically sharp and insightful response, Baude adopts a different perspective, specifically considering if my historical account poses problems for original law originalism—the version of the theory that he and Stephen Sachs have pioneered. Full answers will have to wait for more detailed work, Baude reports, but in the meantime, he gives us plenty to chew on. He poses a series of questions aimed at identifying whether the deep constitutional contestation I illustrate at the Founding in fact undermines the very concept of original law. A great deal hangs on what we mean by law here. On the one hand, I am convinced that the disagreements that followed ratification were fundamental in nature, cutting to the very core of the Constitution. But, as I say in my Introduction, these disagreements always fell under the accepted authority of the Constitution. Everybody acknowledged that, whatever else was true, it was supreme law. But law seems to pick out something more specific in Baude’s theory, not just a source of law but a set of methods or principles for deciphering and elaborating it. I argue that few subjects elicited more confusion or disagreement at the Founding than interpretive methods, but I wonder if Baude and I are talking about the same thing when we reference established rules. And if we are picking out the same thing, perhaps other accepted legal methods, such as Madison’s account of “liquidation” that Baude has so carefully delineated, can explain how certain features of the constitutional landscape became settled over time, and thus how original law originalism and my historical narrative can work in tandem. Bernadette Meyler raises this exact possibility, wondering if my book doesn’t offer, as she puts it, “a larger kind of liquidation narrative.” Perhaps debates in the 1790s, she suggests, liquidated the Constitution itself, transforming it from an inchoate object into a fixed, written text. While, in my book, I had only hoped to suggest that, by 1796, Americans’ distinctive conception of constitutional fixity had emerged, not that all fundamental issues had been settled, nonetheless Meyler’s interpretation could indeed support Baude’s conception of originalism which—as he argues in his sophisticated new article—can and should be wedded to Madison’s idea of liquidation.

I am still digesting Baude’s interesting argument. But while I very much take his and Meyler’s point about it, I wonder about two things. First, how widely accepted was the idea of liquidation beyond Madison? More critically, how much acceptance is needed to make it part of the Framers’ law? Second, would most other originalists take liquidation on board? My hunch is that many of them would balk at the prospect, not least because incorporating it would require abandoning certain commitments. Many of them remain wary of adopting the idea of construction after all, or at least its more radical possibilities.

So it could well be that Balkin’s and Baude’s versions of originalism (as Balkin indicates in his own way) are compatible with my account of the Founding while other forms of the theory are not. Regardless, I eagerly await cashing Baude’s promissory note to know for sure.

Clearly, then, as my own preliminary thoughts on some of these matters reveal, there is much more to be understood about early American constitutionalism and its connections to modern constitutional theory. I hope that others, as invigorated by this symposium as I have been, will help tackle some of the questions that this discussion has provoked. With that in mind, I should end where I began, by sincerely thanking my interlocutors for such substantive engagement with my work. In responding to their incisive commentaries, I have gained a much deeper understanding of my book’s larger implications. I trust other readers have as well.

Jonathan Gienapp is Assistant Professor of History at Stanford University. You can reach him by e-mail at jgienapp at stanford.edu

Posted 11:00 AM by Guest Blogger [link]

Regulating Carebots for the Elderly: Are Safety and Efficacy Sufficient Standards of Review?

Guest Blogger

Fazal Khan

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

As in most of Europe and Japan, the U.S. population is aging rapidly as baby boomers have entered retirement and birth rates have been declining for several decades. Demographic trends predict that a looming crisis in the provision of long-term care that will grow worse over time, especially in the climate of restrictive immigration policies and proposals to block grant and cap spending on Medicaid, which devotes 2/3 of its funding to long-term care. As described below, a potential solution to address the supply gap in long-term care is the increased use of smart machines, embedded sensors, and artificial intelligence empowered robots (I collectively refer to these varied technologies as “carebots”) to deliver long-term care services directly and/or augment the capabilities and productivity of fewer human providers. However, I contend that the basic FDA framework of reviewing the safety and efficacy of medical devices is inadequate as applied to these technologies as they potentially can harm the autonomy interests of patients that still retain decision-making capacity. Thus, I propose an enhanced regulatory framework for carebots that addresses a patient’s autonomy concerns in addition to safety and efficacy.

Long-term care provides support services for those who have physical or mental impairments that prevent them from autonomously carrying out activities of daily living (e.g., eating, bathing, and dressing) and instrumental activities of living (e.g., preparing meals, managing medications, housekeeping). Long-term care comprises a spectrum of services, including home health services, adult day centers, assisted living, nursing homes, skilled nursing facilities, and intensive care facilities. The typical long-term caregiver in the U.S. is not a paid professional, but rather an unpaid relative or friend. However, the challenge is that this cohort of caregivers is approaching the age where they might need long-term care and it is not clear where that assistance will come from. Thus, demographers predict that the caregiver support ratio, defined as the number of potential caregivers in the prime age group of 45-64 (includes unpaid family members and paid home aides) for every person over the age 80, will rapidly decline in the near future. In 2010, the caregiver support ratio was 7 to 1. In 2030, four years after the first “baby boomers” turn 80, this ratio will be 4 to 1—and by 2050 this ratio will drop to 3 to 1.

Posted 9:00 AM by Guest Blogger [link]

Big Data: Destroyer of Informed Consent

Guest Blogger

A. Michael Froomkin

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

Consent, that is ‘notice and choice,’ is a fundamental concept in the U.S. approach to data privacy, as it reflects principles of individual autonomy, freedom of choice, and rationality. Big Data, however, makes the traditional approach to informed consent incoherent and unsupportable, and indeed calls the entire concept of consent, at least as currently practiced in the U.S., into question.

Big Data kills the possibility of true informed consent because by its very nature one purpose of big data analytics is to find unexpected patterns in data. Informed consent requires at the very least that the person requesting the consent know what she is asking the subject to consent to. In principle, we hope that before the subject agrees she too comes to understand the scope of the agreement. But with big data analytics, particularly those based on Machine Learning, neither party to that conversation can know what the data may be used to discover.

Nor, given advances in re-identification, can either party know how likely it is that any given attempt to de-identify personal data will succeed. Informed consent, at least as we used to understand it, is simply not possible if medical data is to become part of Big Data, and ever so much more so if researchers intend to link personal health records with data streams drawn from non-medical sources because what we will learn with the information cannot be predicted. Similar—indeed, maybe worse—problems arise with big data analytics uses outside the context of medical research, especially as informed consent seemed a plausible solution to the problem of routinized or non-existent consent for data acquisition.

Posted 9:00 AM by Guest Blogger [link]

Care Robots

Guest Blogger

Paul Vincent Tongsy

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

The use of Artificial Intelligence (AI) and care robotics are currently viewed as two separate branches of advancements in modern medicine. For now, AI and care robots are considered as advanced tools to augment the skills and intelligence of human professionals who provide most of the care. There will be a time in the not-so-distant future, when AI achieves general or superintelligence. Simultaneously, they will become more independent and mobile, while other specific medical devices/robots will become more miniaturized and advanced. In vivo, in vitro/prosthetics and other therapeutic robots will all likely become more advanced and prevalent.

Done right, AI will likely merge with robotics and these resulting care robots will have so much potential to enhance care. Envision the common use of robots as care providers throughout the human lifespan (e.g. nannies, companions/assistants, and other possibilities). This prospect is both exciting for some people, and terrifying for others. For better or worse, it is rather common for care robots to become ubiquitous at a rapid pace once they overcome the hurdles of reaching successful initial adoption.

In formal settings or institutions like hospitals, AI adoption is complicated and undertaken by a multi-disciplinary team. Outside of formal settings, AI adoption will be dependent on multiple variables. These variables may include but are not limited to: competition, government sponsorship or regulation, and an economy driven market. Once the shock value wears off and the care robots are found effective and safe, it is likely that the public will demand “the best, brightest and newest” care robot. Prohibitively expensive at first, care robot makers might still sell out and profit tremendously, much like the best smart phone or car companies of today.

Naturally, there already are or will be glaring issues before, during and after the “robot invasion”. For healthcare in particular, these issues will include paramount concerns for patient safety and privacy. Reevaluating ethics for both humans (bioethics) and robots (roboethics) will also become crucial as more care robots are designed, produced and adopted. For these robots to be successful, a lot of care and caring will have to be taught to them by their human creators. These teachings will include what care looks like and how to provide it safely. The nursing profession and its theories of care can definitely be a valuable resource for care robot learning.

Posted 8:30 AM by Guest Blogger [link]

Tuesday, October 30, 2018

Who is Your Therapy App Working For?

Frank Pasquale

For the Symposium on The Law and Policy of AI, Robotics, and Telemedicine in Health Care.

Myriad programs in Apple’s App Store claim to address mental health concerns. A larger assortment of less-vetted apps crowd the virtual shelves of the Google Play Store. Cheap mental health apps have been a godsend for health systems pressed by austerity to cut costs, like Britain’s National Health Service (NHS). Via an “NHS Apps Library,” UK authorities have recommended at least fourteen apps for those suffering from depression and anxiety. Unfortunately, according to a study in the journal Evidence Based Mental Health, "the true clinical value of over 85% of NHS accredited mental health apps is at present impossible to determine." Only 2 of the apps studied applied validated metrics. Nor is it clear how app stores arrange their wares, elevating some software and occluding others. Nor are the politics and ideology of app makers apparent on first glance.

This opacity is important, because it is by no means clear that digital substitutes for (or even complements to) extant mental health professionals will live up to the type of fiduciary and other standards that are expected of human providers. Already articulated in the realm of digital assistants, these concerns will only be more pronounced in health care.
Read more »

Posted 3:56 PM by Frank Pasquale [link]

Authoritarian Constitutionalism in Facebookland

David Pozen

In an article published earlier this year, Kate Klonick memorably described social media platforms like Facebook as the “New Governors” of online speech. These platforms operate with significant legal discretion. Because of the state action doctrine, they are generally assumed to be unconstrained by the First Amendment. Because of Section 230 of the Communications Decency Act, they enjoy broad immunity from liability for the user-generated content posted on their sites. Nevertheless, Klonick showed, these platforms have created intricate rules for determining whether and how to limit the circulation of material that is arguably offensive or obscene, rules that in some respects appear to track U.S. free speech norms. By studying internal Facebook documents and interviewing employees, Klonick began to illuminate the mysterious world of social media content moderation.

Klonick’s latest essay pushes this project further.[*] In “Facebook v. Sullivan,” she investigates Facebook’s use of the “public figure” and “newsworthiness” concepts in its content moderation decisions. Again drawing heavily on interviews, Klonick recounts how Facebook policymakers first turned to the public figure concept in an effort to preserve robust debate on matters of widespread concern while cracking down on the cyberbullying of “private” individuals. Newsworthiness, meanwhile, emerged over time as a kind of all-purpose free speech safety valve, invoked to justify keeping up content that would otherwise be removable on any number of grounds. Defining public figures and newsworthiness in an attractive yet administrable manner has been a constant challenge for Facebook—the relevant First Amendment case law is no model of clarity and, even if it were, translating it to a platform of Facebook’s scale would be far from straightforward—and Klonick walks us down the somewhat mazy path the company has traveled to arrive at its current approach.

Klonick’s essay offers many intriguing observations about Facebook’s “free speech doctrine” and its relationship to First Amendment law and communications torts. But if we step back from the details, how should we understand the overall content moderation regime that Klonick is limning? At one point in the essay, Klonick proposes that we think of it as “a common law system,” given the way Facebook’s speech policies evolve “in response to new factual scenarios that present themselves and in response to feedback from outside observers.” The common law analogy is appealing on several levels. It highlights the incremental, case-by-case development that some of these policies have undergone, and it implies a certain conceptual and normative integrity, an immanent rationality, to this evolutionary process. Facebook’s free speech doctrine, the common law analogy might be taken to suggest, has been working itself pure.

Common law systems are generally understood to involve (i) formally independent dispute resolution bodies, paradigmatically courts, that issue (ii) precedential, (iii) written decisions. As Klonick’s essay makes clear, however, Facebook’s content moderation regime contains none of these features. The regulators and adjudicators are one and the same, and the little we know about how speech disputes get resolved and speech policies get changed at Facebook is thanks in no small part to Klonick’s own sleuthing.

A very different analogy thus seems equally available: Perhaps Facebook’s content moderation regime is less like a common law system than like a system of authoritarian or absolutist constitutionalism. Authoritarian constitutionalism, as Alexander Somek describes it, accepts many governance features of constitutional democracy “with the noteworthy exception of … democracy itself.” The absence of meaningful democratic accountability is justified “by pointing to a goal—the goal of social integration”—whose attainment would allegedly “be seriously undermined if co-operation were sought with [the legislature] or civil society.” Absolutist constitutionalism, in Mark Tushnet’s formulation, occurs when “a single decisionmaker motivated by an interest in the nation’s well-being consults widely and protects civil liberties generally, but in the end, decides on a course of action in the decisionmaker’s sole discretion, unchecked by any other institutions.”

The analogy to authoritarian/absolutist constitutionalism calls attention to the high stakes of Facebook’s regulatory choices and to the awesome power the company wields over its digital subjects as a “sovereign” of cyberspace. It also foregrounds the tension between Facebook’s seemingly sincere concern for free speech values and its explicit aspiration to make users feel socially safe and “connected” (and hence to maximize the time they spend on the site), a tension that is shaped by market forces but ultimately resolved by benevolent leader and controlling shareholder Zuckerberg.

There is a jarring scene in Klonick’s essay, in which a photograph from the Boston Marathon bombing that is “graphically violent” within the meaning of Facebook’s rules is dutifully taken down by content moderators, only to be put back up by unnamed executives on account of its newsworthiness. These executives may have had good intentions, and they may even have made the right call. The episode is nonetheless a reminder of the potential for arbitrary and cynical assertions of authority from on high in Facebookland—and of the potential disconnect between the policies that Facebook adopts and the policies that a more democratic alternative would generate.

Systems of authoritarian constitutionalism and absolutist constitutionalism are not lawless. But their commitment to civil liberties and the public interest is contingent, instrumental, fragile. If one of these models supplies the most apt analogy for Facebook’s regulation of online speech, then the crucial tasks for reformers might well have less to do with refining the company’s content moderation rules than with resisting its structural stranglehold over digital media.

Three response pieces identify additional concerns raised by Facebook’s content moderation practices. Enrique Armijo argues that First Amendment law on “public figures” can and should be embraced by Facebook and Twitter, but that constitutional protections for anonymous speech become far more frightening when exported to these platforms. To the extent that First Amendment law has predisposed platform architects to be tolerant of anonymous speech, Armijo suggests, it has led them disastrously astray.

Amy Gajda points out that Facebook’s “newsworthiness” determinations have the potential to affect not only millions of Facebook users, at great cost to privacy values, but also an untold number of journalists. Given courts’ unwillingness to define newsworthiness when reviewing privacy claims, Facebook’s “Community Standards” could become a touchstone in future media litigation unless and until judges become more assertive in this area.

Finally, Sarah Haan reminds us that Facebook’s decisions about how to regulate speech are inevitably influenced by its profit motive. Indeed, Facebook admits as much. Maintaining a prosocial expressive environment, Haan observes, is difficult and expensive, and there is little reason to expect Facebook to continue to privilege the preferences of American customers as its business model becomes increasingly focused on other parts of the globe.

For those of us who worry about the recent direction of U.S. free speech doctrine, Haan’s invitation to imagine a future Facebook less beholden to First Amendment ideology is also an invitation to imagine a range of new approaches to online content moderation and social media regulation. And that is precisely what the Knight Institute’s next visiting scholar, Jamal Greene, will be asking academics and advocates to do in a forthcoming paper series.

[*] Klonick’s essay is being published, along with three response pieces, as the seventh and final installment in a series I have been editing for the Knight First Amendment Institute at Columbia University.

Posted 12:14 PM by David Pozen [link]

The Invalidity of the Proposed Executive Order on Statutory Grounds

Gerard N. Magliocca

Another fatal flaw in the proposed Executive Order that would create two legal classes of babies in this country (one born to citizen parents and the other not) is that there is a contrary federal statute on this subject. 8 U.S.C. Section 1401(a) defines citizenship as "a person born in the United States, and subject to the jurisdiction thereof." This statute was enacted in 1952.

Thus, the relevant standard for deciding whether any proposed executive order on this subject is lawful must look what "subject to the jurisdiction thereof" meant then. And at that time children born here to noncitizen parents were routinely given citizenship in line with the Supreme Court's opinion in Wong Kim Ark. In no way can the President's proposed order be read as consistent with that statute, even without considering the flagrant unconstitutionality of such a proposal.

Posted 11:32 AM by Gerard N. Magliocca [link] (55) comments

The Founding and the Origins of Our Constitutionalism, Part II

Guest Blogger

Jonathan Gienapp

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

II. Fixity and the Inevitability of Our Constitutionalism?

I now turn to constitutional fixity, the concept that lies at the heart of my story. This subject is complex—not least because, as Sandy Levinson appropriately writes, fixity is “chimerical.” So it’s valuable to restate some central points. I argue that Founding-era Americans did not invent the idea of constitutional fixity, they reimagined it. Debates during the decade after ratification brought into focus a new idea of what defined a fixed constitution.

It is essential to grasp this point because, contrary to what is commonly thought, there was nothing new—not in 1796, 1787, or 1776—about thinking that a constitution ought to be fixed. Virtually everybody in the English-speaking world, for over a century and half, had assumed that their constitutions were fixed and that this was a good thing. Common law jurists like Sir Edward Coke had claimed that the English constitution was fixed. So too had leading seventeenth-century Parliamentarians like John Pym and Henry Parker and radical spokesmen who kept their dream alive like Algernon Sidney. Meanwhile, colonial Americans—whose own conception of the British constitution centered on the texts of their colonial charters—readily assumed that they were subject to a fixed constitution. If there was one thing that everybody could agree on, it was the fact that constitutions were fixed. This all might seem counterintuitive. Didn’t Revolutionary Americans invent the idea of a fixed constitution by choosing to write their constitutions down? Wasn’t the customary British constitution obviously unfixed, since it changed through evolving practice? From the perspective of our distinctive understanding of fixity those queries make perfect sense, but therein lies the point—from our perspective. And it is precisely that perspective, which marked such a rupture in the long history of Anglo-American constitutionalism, whose origins I set out to explain.

Before that perspective took shape, an older form of constitutional fixity reigned. And unlike its successor, it was fully compatible with prevalent notions of constitutional change. Most members of the seventeenth- and eighteenth-century English-speaking world—from Matthew Hale and William Blackstone to James Otis and Samuel Adams—assumed that constitutions were fixed but changing. When constitutions changed—due to evolving practices, common law adjudications, or constitutional crises—they did not drift away from fixed principles but more deeply converged on them. Dynamic change produced new constitutional understandings that simultaneously restored ancient constitutional meanings. Counterintuitive to us; obvious to them.

After independence, these habits endured. Americans wrote their new state constitutions, but those instruments naturally replaced the charters that had long centered their constitutional existence, so it seemed intuitive that the deeper constitutional principles those charters had incorporated persisted as well. Much changed between 1776 and 1787—and plenty of it, as I suggest, was revolutionary—but many basic constitutional habits endured. In this regard the federal Constitution was indeed fixed from the beginning—just as the British constitution, the colonial charters, and the state constitutions had been before it—but fixed in a way that we no longer easily recognize, and one that post-ratification debates helped make obsolete.

So what I chart in my book is not the birth of constitutional fixity itself, but the origins of a peculiar brand of fixity that made a previous brand of fixity look like anything but. That new form of constitutional fixity has endured in powerful ways. By stressing the new Constitution’s textual and archival character, and thus by circumscribing it in space and time, post-ratification Americans helped turn fixity and change from allies into antagonists. Ever since, Americans have largely operated in the space made of this opposition, opting to see the Constitution either as static and fixed or as dynamic and changing—as Sandy Levinson celebrates John Marshall for doing in his famous opinion in McCullough v. Maryland. In other words, only from the perspective of a new kind of fixity born in the 1790s did the enduring contest that treats originalism and living constitutionalism as warring alternatives become intelligible.

Posted 11:00 AM by Guest Blogger [link]

Seeing Transparency Through: Healthcare Software, Data Privacy, and Regulation

Guest Blogger

Bonnie Kaplan

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

Transparency: the theme runs through much of the conference. Improvements in both data protection and access, as well as in algorithms and their use, are hoped for through increased access to data and to more transparency about how it is generated, collected, processed, and used. In health care, contractual issues, liability, intellectual property protection, and outdated regulation contribute to lack of transparency.

Transparency for all health care data and software is not an unmitigated good. Autonomy and dignity, public health, patient care, biosurveillance, clinical and other scientific research, marketing, and innovation also require consideration. However, more transparency in software, data, privacy, and regulation is needed regarding health information technologies.

Healthcare information technology is based on complex software systems comprised of numerous algorithms, so concerns surrounding algorithmic transparency apply to their use in health care. Explanability, testability, understandability, identifiability of inherent biases or outright errors, correctability—all are compromised without transparency.

This problem affects systems such as electronic health record (EHR) systems for ordering, communicating, storing, and retrieving clinical information about each patient. EHRs are built of algorithms. Consider medication orders. Ordering a medication through an EHR can involve automated dosage calculations based, in part, on the patient’s weight. The calculation may seem straightforward, though there can be errors due to incorrect input, malfunctioning software or hardware, inconsistencies in how and where weight or medication are recorded, and erroneous formulas, none of which may be transparent. Similar opaqueness characterizes predictive algorithms used for ICU bed allocation, patient monitor alert systems, and forms of decision support ranging from vaccination reminders to differential diagnosis.

Posted 9:30 AM by Guest Blogger [link]

Artificial Intelligence for Suicide Prediction

Guest Blogger

Mason Marks

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

Suicide is a global problem causing 800,000 deaths per year worldwide. In the United States, suicide rates rose by 25% in the past two decades reaching 45,000 deaths per year. Suicide now claims more American lives than auto accidents. Traditional methods of predicting suicide, such as questionnaires administered by doctors, are notoriously inaccurate. Hoping to predict suicide more accurately and thereby save lives, hospitals, governments, and internet companies have begun developing artificial intelligence (AI) based suicide prediction tools. This essay analyzes the risks these systems pose to people’s safety, privacy, and autonomy, which have been underexplored. It concludes with recommendations for minimizing those risks.

Two parallel tracks of AI-based suicide prediction have emerged. On the first track, which I call “medical suicide prediction,” doctors and hospitals use AI to analyze patient records. Medical suicide prediction is mostly experimental, and aside from one program at the Department of Veterans Affairs (VA), it is not yet widely used. Because medical suicide prediction occurs within the healthcare context, it is subject to federal laws, such as HIPAA, which protects the privacy and security of patient information, and the Federal Common Rule, which protects human research subjects.

My focus here is on the second track of AI-based suicide prediction, which I call “social suicide prediction.” Though it is essentially unregulated, social suicide prediction is already widely used to make decisions that affect people’s lives. It predicts suicide risk using behavioral data mined from consumers through their interactions with social media, smart phones, and the Internet of Things (IoT). The companies involved, which include large internet platforms such as Facebook and Twitter, are not generally subject to HIPAA’s privacy regulations, principles of medical ethics, or rules governing research on human subjects.

How does social suicide prediction work? As we go about our daily routines, we leave behind trails of digital traces that reflect where we’ve been and what we’ve done. Companies use AI to analyze these traces and infer health information. For instance, Facebook’s AI scans user-generated content for words and phrases it believes are correlated with suicidal thoughts. The system stratifies posts into risk categories, and those deemed “high risk” are forwarded to Facebook Community Operations, which may notify police who perform “wellness checks” at users’ homes. In 2017, Facebook announced that its system had prompted over 100 wellness checks in one month. Its affiliate Crisis Text Line, a text-based counseling service targeted at children and teens, reports completing over 11,500 wellness checks at a rate of 20 per day. In addition to its standalone service, Crisis Text Line is embedded within other platforms such as Facebook Messenger, YouTube, and various apps marketed to teens.

Posted 9:00 AM by Guest Blogger [link]

The Proposed Executive Order Attacking Babies

Gerard N. Magliocca

In an interview reported in various media outlets, the President said that he plans to sign an unconstitutional executive order removing birthright citizenship from children born henceforth to noncitizen of one sort or another. The text of Section One of the Fourteenth Amendment, as well as the background law, the debates in Congress, and the subsequent practice are clear on this point. No doubt the White House can produce at least three stooges to say that the executive order is lawful and then claim that legal experts are "divided" on this issue. It's a lie.

I have made it a practice never to sign or participate in briefs for constitutional cases. To my mind, the roles of scholar and advocate should be separate. In this case, though, I will make an exception. When the order is signed and the lawsuit is filed (by whomever), call me up and I'll help.

Posted 7:12 AM by Gerard N. Magliocca [link] (5) comments

Monday, October 29, 2018

The Founding and the Origins of Our Constitutionalism, Part I

Guest Blogger

Jonathan Gienapp

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

No author, let alone a first-time author, could ask for anything more than this rich and rewarding symposium on my new book, The Second Creation: Fixing the American Constitution in the Founding Era. Each of the commentators—all distinguished constitutional scholars—have charitably entered into the spirit of what I was trying to do in the project and have thoughtfully engaged with what I had to say. I am gratified that so many of them think the book makes important contributions to our understanding of the early Constitution. And I am just as appreciative of the substantive ways in which they have complicated or challenged aspects of my argument. My deepest thanks to all of them for launching such an illuminating conversation.

I am especially pleased that these commentators have drawn out the implications of my arguments for modern debates over constitutional theory and interpretation. This comes as no surprise since the symposium, by design, pulled together legal scholars working in these particular areas. As a historian, I set out principally to write a history of the early Constitution, not a work of constitutional theory. And while I certainly wrote the book in the hope that the former would hold important implications for the latter, because my primary focus was on constructing a coherent and compelling interpretation of the American Founding, I did not explicitly or extensively foreground my understanding of the book’s connections to modern constitutional debates. Because, as Bernadette Meyler notes, I leave many of these “links largely unstated,” I assumed that others might draw different conclusions from me or productively extend my findings in ways I had not anticipated. Many of the commentators have done just that, so in addition to offering a chance to respond to specific challenges raised in the reviews, this response also affords me the opportunity to speak more concretely about what I take to be the book’s implications for debates over constitutional interpretation.

The commentaries cover a lot of ground, but there are a handful of topics that dominate the discussion. Accordingly, I will focus my remarks on a few important issues: the study of constitutional language, the meaning of constitutional fixity and the necessity of our brand of constitutionalism, and originalism. I am not surprised that readers kept returning to these themes, as they were the issues I spent the most time struggling to understand. Elaborating on them is the best way to push the conversation forward. I will consider each of these three issues in distinct installments.

Posted 11:15 AM by Guest Blogger [link]

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