Published: Feb. 1, 2023

Ranked 33rd for scholarly impact, Colorado Law faculty are on the cutting edge in areas such as artificial intelligence and technology, environmental law, American Indian law, and criminal law. Read about some of their boundary-breaking research.

 

Artificial Intelligence and the Law

Colorado Law Professors Margot E. Kaminski and Harry Surden are leading the exploration of the future of AI and how technologies using computer-based decision making offer major prospects for breakthroughs in the law—and how those decisions are regulated.

Kaminski and Surden are both involved in Colorado Law’s Silicon Flatirons Center–as director of the Privacy Initiative and Artificial Intelligence Initiative, respectively–which bring together key stakeholders from academia, government, business, and nonprofits to engage in rigorous, evidence-based, and thoughtful discussions.

Margot Kaminski

Margot E. Kaminski: Associate Professor of Law; Director of the Privacy Initiative, Silicon Flatirons Center for Law, Technology, and Entrepreneurship at Colorado Law

Humans in the loop

@MargotKaminski 

The most interesting problems aren’t about whether to use a machine or a human, but about how to get them to work together.

At what stage–and to what extent–should humans be involved in automated decisions? In a forthcoming article, Humans in the Loop (Vanderbilt Law Review, forthcoming 2023), Margot E. Kaminski and coauthors W. Nicholson Price (Michigan Law) and Rebecca Crootof (Richmond Law) look at the people involved in automated decisions

“Human-machine systems are more than the sum of their parts: They raise their own problems and require their own distinct regulatory interventions,” writes Kaminski, who was named a top woman in AI ethics.

She explains: Often, well-intentioned lawmakers will look at a decision made by an AI system and try to solve some set of perceived problems by requiring that a human be involved. It’s not that humans are worse decision makers than machines—in fact, humans still do a lot of things much better, like crossing contexts or dealing with edge cases. But putting a human in the loop thoughtlessly actually creates new problems. Hybrid human-machine systems have known weaknesses and can be subject to complex failure cascades. So if we’re going to put a human in the loop of particularly significant automated decisions, we have to know why we’re putting her there, and set her (and the system) up to succeed.

What’s next: 

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To whom is AI loyal?

Harry Surden

Harry Surden: Professor of Law; Director of the Artificial Intelligence Initiative, Silicon Flatirons Center for Law, Technology, and Entrepreneurship at Colorado Law

@HarrySurden

As artificial intelligence (AI) becomes more ubiquitous and an increasing number of significant decisions are being made by machines, Harry Surden pairs his scholarship in technology and intellectual property law with his background in software engineering and law to examine how AI can enhance, not replace, the practice of law. 

He investigates the concept of “loyalty” both in human and AI systems in a forthcoming book chapter in the Oxford Handbook on AI Governance (Oxford University Press, forthcoming 2022), titled “AI Loyalty by Design: A Framework for Governance of AI.” 

Surden and his coauthors pose the question: As AI systems are increasingly supplementing or even replacing people in such roles including as advisors, assistants, and (soon) doctors, lawyers, and therapists, to what degree they are bound by the same sorts of responsibilities? Much has been written about fairness, accountability, and transparency in the context of AI use and trust. But largely missing from this conversation is the concept of “AI loyalty”: for whom does an AI system work? 

AI systems are often created by corporations or other organizations and may be operated by an intermediary party such as a government agency or business, but the end-users are often distinct individuals. This leads to potential conflict between the interests of the users and those of the creators or intermediaries, and, problematically, to AI systems that appear to act purely in users’ interest even when they are not, he writes. 

Surden advocates that loyalty be a central consideration in AI design. Systems for which high loyalty is appropriate should be designed, from the outset, to primarily and transparently benefit their end users, or at minimum transparently communicate unavoidable conflict-of-interest tradeoffs. 

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Natural Resources and Environmental Law

Who gets to participate in environmental decision-making?

Jonathan Skinner-Thompson

Jonathan Skinner-Thompson: Associate Professor of Law

Environmental law and human rights are increasingly intertwined, and impacted communities–often the most marginalized community members–are excluded from substantively participating as equal partners at every level of environmental decision-making. 

In Procedural Environmental Justice (97 Wash. L. Rev. 399, 2022), Jonathan Skinner-Thompson explores the concept of an empowered participatory process—one that provides communities that are disproportionately exposed to pollution with the consultation and expertise needed to bolster the authority of their lived experiences in order to influence regulatory outcomes.

He will next conduct a national survey of public participation procedures under a specific permitting program to learn about practices across the country. 

Skinner-Thompson has had an extensive career in environmental law, holding positions at public interest organizations, in private practice, and at all levels of government. Before joining Colorado Law in 2020, he was an attorney at the U.S. Environmental Protection Agency—first in the Office of General Counsel and then with the Office of Regional Counsel in Denver. He also has served in the U.S. Department of Justice's Environmental Defense Section and was an environmental associate with firms in New York and Seattle. For his federal service, he received the Administrator's Award for Excellence, a Special General Counsel's Award, and the Assistant Attorney General's Award for Excellence, among others.

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Avoiding natural disaster property loss

Pappas

Michael Pappas: Professor of Law

Repetitive losses from natural disasters are a multi-billion-dollar problem, and climate change threatens to make it worse. However, the problem is avoidable, and in Climate Changes Property: Disasters, Decommodification, and Retreat (82 Ohio State Law Journal 331, 2021), Michael Pappas and his co-author, Victor Flatt, offer a new analytical framework to explain how.

While some disaster losses are inevitable, Pappas and Flatt argue that recurrent losses are a preventable consequence of real-estate market failures and policy shortcomings. By applying the concept of “adjustment failure costs,” a recent contribution to property theory, they present a fresh perspective for understanding and alleviating the economic and human costs of disasters.

This builds on Pappas’s previous work addressing the emergence, appropriateness, and design of market tools in environmental governance. There he developed a model for evaluating the desirability of market tools, like cap and trade programs or pollution taxes, for different resources related to environmental protection and climate change adaptation. 

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Leading the way for global climate solutions

Anaya

S. James Anaya, University Distinguished Professor and Nicholas Doman Professor of International Law

Today’s environmental crisis requires a global approach, and S. James Anaya is the lead co-chair of the steering committee for a global climate summit to be held at CU Boulder in December 2022. In partnership with the United Nations Human Rights, the Right Here, Right Now Global Climate Summit will gather some of the world’s foremost human rights, scientific, political, educational, cultural, and industry leaders to raise awareness about the human rights crisis that climate change is and look for solutions.

Colorado Law’s former dean, Anaya has lectured around the world, advised internationally on matters of human rights and Indigenous peoples, and represented Indigenous groups from many parts of North and Central America in landmark cases. He also participated in the drafting of the U.N. Declaration on the Rights of Indigenous Peoples.

“Throughout my career, I’ve dealt with issues of human rights that have to do with the natural environment and more and more with the effects of climate change on the natural environment,” he said. “I was very privileged to have worked with Inuit people in the Arctic in the early 2000s in presenting a claim to an international human rights body alleging violations of their human rights because of the effects of climate change on their lives. Since my involvement in that litigation, the impacts of climate change on human rights have been very much an interest of mine and I hope to contribute to solutions in some way.”

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American Indian Law

Centering Indigenous Peoples in U.S. immigration law and policy

Carpenter

Kristen A. Carpenter: Council Tree Professor of Law and Director of the American Indian Law Program

How should the experience of Indigenous Peoples be accounted for when regulating U.S. borders?  

In Decolonizing Indigenous Migration (109 California Law Review 63-139, 2021), Kristen A. Carpenter and Angela Riley (UCLA) argue that centering Indigenous Peoples in an examination of U.S. immigration law and policy is critical to advancing a human rights approach to migration and addressing the legacies of conquest and colonization that undergird nation-state territorial sovereignty. 

Although border formation has served to define U.S. territory for all people, marking in a concrete way who is “in” and who is “out”— this resonates uniquely for Indigenous Peoples. In our view, the ongoing legacy of settler colonialism renders invisible— and heightens—the experiences of Indigenous Peoples as migrants in their own homelands, the authors write. 

Carpenter and Riley raise examples including the Yaqui and Tohono O’Odham peoples, who have inhabited their homelands since well before the existence of the U.S. Today, however, the border between the U.S. and Mexico cuts right through their territories, sacred sites, and families. They often have to confront the Department of Homeland Security, along with Customs and Border Patrol, just to get through daily life, and unfortunately these encounters threaten their safety, wellbeing, and cultural practices. The authors argue that by applying instruments such as the United Nations Declaration on the Rights of Indigenous Peoples and Global Compact for Migration, the U.S. could better protect Indigenous Peoples in these circumstances.

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Criminal Law

Rethinking the criminal system

Levin

Benjamin Levin, Associate Professor of Law

Benjamin Levin has written extensively about criminal justice reform, police unions and their role in policymaking, and mass incarceration in the United States. His latest article, Criminal Law Exceptionalism (Virginia Law Review), takes a fuller look at what’s needed for criminal justice reform by reckoning broadly with the distributive consequences and punitive impulses of today’s criminal system.

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded, he notes. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of a space of moral clarity, the “criminal justice system” is frequently identified by critical scholars and activists as a space of racial subordination, widespread inequality, and rampant institutional violence.

Levin applauds that critical turn but argues that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance—issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action. What if the problem with the criminal system isn’t exclusively its criminal-ness, but rather is the way in which it is embedded in and reflective of a set of problematic beliefs about how society should be structured and how people should be governed? What if the problems with criminal law are illustrative, rather than exceptional? 

Levin argues that the current moment should invite a de-exceptionalization of criminal law and a broader reckoning with the distributive consequences and punitive impulses that define the criminal system’s functioning—and, in turn, define so many other features of U.S. political economy beyond criminal law and its administration.

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How should criminal law regulate sex?

Gruber

Aya Gruber: Ira C. Rothgerber Professor of Constitutional Law and Criminal Justice

Why are sex crimes believed to be the worst crimes? 

In Sex Exceptionalism in Criminal Law (Stanford Law Review, Vol. 75, forthcoming 2023), Aya Gruber asserts that people widely believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work.

Criminal codes create a dedicated category for sex offenses, uniting under its umbrella conduct as different as violent attacks and consensual commercial transactions. This exceptionalist treatment of sex as categorically different rarely evokes discussion, much less debate. However, sex exceptionalism is not natural or neutral, and its political history should give us pause, she writes. 

Her article, the first to trace, catalog, and analyze sex exceptionalism in criminal law, takes a genealogical examination of sex-crime law from the late eighteenth century to today and makes several novel contributions to the debate over how criminal law should regulate sex. 

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