On Monday, August 6, 2018, SEALS honored the 2018 Call for Papers winners at a luncheon at which each winner presented their papers.
Emily Berman’s (University of Houston)article “A Government of Laws and Not of Machines” (98 B.U. L. Rev. (forthcoming 2018)) reviews “Machine learning” – a powerful form of artificial intelligence that uses mathematical algorithms to construct computer models that analyze and extract patterns from enormous data sets, often for the purpose of making predictions about the future. This Article considers the government’s use of machine learning in the context of law enforcement and national security decision-making, taking a step back from the nuts and bolts questions surrounding the implementation of predictive analytics on which most scholarly commentary has focused to assess their use from a more conceptual perspective. The question I seek to answer is this: whether reliance on the output of machine-learning models—even if highly accurate—is consistent with the goal to maintain “a government of laws” and not of machines. I conclude that government officials operating in contexts where they enjoy broad decision-making discretion should embrace machine-learning predictions as a valuable tool. By contrast, when government discretion is highly constrained by existing constitutional, statutory, or regulatory rules, the use of machine-learning predictions represents a threat to the rule-of-law.
Theodore “Teddy” Rave’s (University of Houston)(with Andrew Bradt, University of California, Berkeley) article “Aggregation on Defendants’ Terms: Bristol-Myers Squibb and the Federalization of Mass Tort Litigation” reviews the Supreme Court’s 8-1 decision in Bristol-Myers Squibb v. Superior Court, noting that though it does little to clarify the notoriously hazy doctrine of personal jurisdiction, it does significantly alter the balance of power in complex litigation. Bristol-Myers is a landmark because it makes both mass-tort class actions and mass joinders impracticable in almost any state courts outside of the defendant’s home states. With federal courts already hostile toward class actions, if plaintiffs want to aggregate, they will have to do so on the defendant’s terms: either on the defendant’s home turf or in federal multidistrict litigation (MDL). Faced with this choice, we believe that most plaintiffs will turn to MDL. The result will be the culmination of a trend toward the federalization of mass-tort litigation in MDL, which has grown to make up an astonishing one-third of the federal docket. In this paper, we examine why Bristol-Myers will have this effect and explain how MDL’s hybrid structure facilitates centralized mass-tort litigation in federal courts, even as the Court’s restrictive view on personal jurisdiction prevents similar aggregation in state court. MDL cuts this Gordian knot by formally adhering to the vision of vertical and horizontal federalism underlying both diversity jurisdiction and Bristol-Myers, while also paradoxically undermining that vision in service of mass resolution. What will result is centralization of even more power over mass-tort litigation in the hands of the MDL judge and lead lawyers that judge selects to run the litigation — a prospect that comes with both opportunities and risks.
The paper was published in 59 B.C. L. Rev. 1251 (2018) this spring and is available on SSRN at: https://ssrn.com/abstract=3082527
Carla Reyes’ (Michigan State University) article “If Rockefeller Were a Coder,” forthcoming in the George Washington Law Review, considers the applications of business entity law to decentralized business entities that are built out of computer code using blockchain technology. The paper argues that treating such entities as partnerships with joint and several personal liability for participants leads to undesirable consequences in the context of open source software development. The article further argues that even though limited liability and separate legal personhood would rectify the problems of partnership treatment, for both practical and theoretical reasons, the LLC and corporate forms will also be poor fits for some of these entities. What is needed, the paper argues, is a business form rooted in contract and recognized at common law, that offers limited liability while also retaining significant flexibility for innovation among the blockchain community. Thus, the article argues that a business trust fits these criteria and offers an alternative entity option for decentralized business ventures that would provide all the benefits of the corporate form without the practical and theoretical mismatch.