Postscript is an online companion to the Southern California Law Review that permits us to publish a wider variety of worthwhile material than we can accommodate in our printed journal. We seek to publish a wide range of timely legal commentaries, response pieces, book reviews, and student work.
Comment | Criminal Law
An Uneasy Dance with Data: Racial Bias in Criminal Law
by Joseph A. Avery
Businesses and organizations expect their managers to use data science to improve and even optimize decisionmaking…Yet when it comes to some criminal justice institutions, such as prosecutors’ offices, there is an aversion to applying cognitive computing to high-stakes decisions…Instead of viewing historical data and data-hungry academic researchers as liabilities, prosecutors and scholars should treat them as assets in the struggle to achieve outcome fairness. Cutting-edge research on fairness in machine learning is being conducted by computer scientists, applied mathematicians, and social scientists, and this research forms a foundation for the most promising path towards racial equality in criminal justice: suggestive modeling that creates baselines to guide prosecutorial decisionmaking.
Posted June 19, 2019
Comment | Criminal Law
Technology-Enabled Coin Flips for Judging Partisan Gerrymandering
by Wendy K. Tam Cho
Akin to every other legal issue that comes before the Court, reconciling the state’s discretion and the Supreme Court’s role in judicial review requires a judicially manageable standard that allows the Court to determine when a legislature has overstepped its bounds…In the partisan gerrymandering context, such a standard needs to discern between garden-variety and excessive use of partisanship. The Court has stated that partisanship may be used in redistricting, but it may not be used “excessively”…At oral argument in Rucho, attorney Emmet Bondurant argued that “[t]his case involves the most extreme partisan gerrymander to rig congressional elections that has been presented to this Court since the one-person/one-vote case.” Justice Kavanaugh replied, “when you use the word ‘extreme,’ that implies a baseline. Extreme compared to what?” Herein lies the issue that the Court has been grappling with in partisan gerrymandering claims. What is the proper baseline against which to judge whether partisanship has been used excessively? And how can this baseline be incorporated into a judicially manageable standard?
Posted May 30, 2019