Category Archives: Vol. 12 No. 2

Layered Opacity: Criminal Legal Technology Exacerbates Disparate Impact Cycles and Prevents Trust

Predictive policing tools used widely by law enforcement agencies attempt to identify where crime will happen before it does. These analyses determine police deployment, and ultimately, arrest data. In this article, Ben Winters highlights how risk assessment tools use that data, combined with various other inputs, to determine detention, bail, sentencing, parole, and more which give rise to serious transparency and oversight concerns.

Particularly, Winters highlights the urgency of these paramount concerns given the tool’s operation in a system that severely disadvantages already marginalized communities. Winters argues that the relatedness of the tools is under-recognized and could be stronger reflected in advocacy efforts and regulatory efforts. This article explains the harm compounded by the tools and explores regulatory options both inside of traditional government levers, and the approaching regulation of data and data practices.

Assessment of National Security Concerns in the Acquisition of U.S. and U.K. Assets

Ioannis Kokkoris discusses the national security statutory framework and regulatory regimes governing mergers and acquisitions of domestic assets by foreign acquirers in the United States and United Kingdom, contrasting enforcement records and providing criticisms of the two.

By placing restrictions on certain types of transactions and outlining clear procedural rules for entities under review, the United States and United Kingdom provide clarity to both the investment and legal communities on their approach to reviewing transactions in the telecommunications, food, financial, defense, and technology industries, among others, that trigger national security concerns.

However, Kokkoris concludes that in the United States, despite CFIUS’s increased powers, the lack of transparency surrounding its reasoning in the review process creates an uncomfortable unpredictability for dealing parties, which would benefit from more detailed rationales.

Information Lawfare: Messaging and the Moral High Ground

The U.S. legal system is known as the envy of the world. Yet law as an instrument of national power has been woefully understudied. Traditional academic frameworks for studying the instruments of national power do not consider the full potential of law to be used as a weapon of war between states, a concept known as “lawfare.” Meanwhile, U.S. adversaries understand that law can be a potent weapon, both to achieve concrete military objectives and to win battles in the information domain, and have wielded it against the U.S. As war escalates in the information domain, information lawfare will be a critical piece of any party’s strategy.

Through a case study of the U.S.’s strike that killed Iranian Major General Soleimani in January 2020, Jill I. Goldenziel demonstrates how information lawfare can be used, and why the U.S. must develop its offensive and defensive lawfare capabilities. This paper won a prize in the 2020 Air Force Judge Advocate General School’s National Security Law Writing Competition.