Showing papers in "Fordham Urban Law Journal in 2020"

Get Smart: Human Rights and Urban Intelligence

Abstract: This Essay responds to “Smarter Cities or Bigger Brother,” by John Wagner Givens and Debra Lam, published in the same volume. Among other things, Givens and Lam note the potential for, and realities of, abuse of smart technology and urge liberal democracies to work in coalition to pioneer a set of good digital practices for smart cities. This Essay argues that such standards already exist in widely accepted human rights norms. Instead of duplicating these existing norms with a new set of standards, I assert that what is missing in smart cities gone awry is the recognition that human rights standards apply to local governments as well as nation-states, and the understanding that technology agendas are not exempted from the application of human rights. The Essay begins by exploring the vibrant international movement to ensure that local governments recognize, participate in, and comply with, human rights norms. This development reflects the growing political and economic power of local governments, of which the smart cities movement is one manifestation. Importantly, the human rights charters and resolutions developed and endorsed by cities around the world explicitly address issues pertinent to the implementation of urban intelligence systems. Second, the Essay addresses the role that human rights norms can play in shaping good practices for implementation and use of smart city technologies, informing both the substance of digital protections and the processes through which technologies are considered, adopted, and tested. In particular, human rights norms regarding community participation in decision-making provide a powerful vehicle through which local residents can voice their viewpoints and concerns, while at the same time creating a platform for broader coordination and dialogue between and among cities regarding the rights implicated by technological abuses. Finally, the Essay examines the ways in which four “human rights cities” — Barcelona, Pittsburgh, Seoul, and Vienna — have integrated human rights norms as they pursue urban intelligence initiatives.

The Professionalization of Urban Accessibility

Abstract: U.S. disability access law has a compliance issue. While disability law “on the books” is composed of civil rights legislation, regulations, and specified codes, in reality, decades after their enactment, many places of public accommodation remain inaccessible and out of reach for individuals with physical disabilities. Disability law scholars had observed how the federal level enforcement of accessibility standards is not done on the design stage but only ex post through private litigation. Much less attention, however, has been paid to the ways state and local laws deal with enforcing accessibility standards. This Article begins filling this gap in the literature by looking at the enforcement level of disability access in the context of urban built environments. Specifically, this Article examines the ways large U.S. cities have used their regulatory tools and state laws to move access enforcement forward through a process of professionalization. Disability scholars have observed how disability access law increased the need for professional experts on accessibility, who serve as agents of enforcement in the early stages of planning, development and construction in urban environments. This process of producing accessibility experts was not standardized in the United States on the federal level. Instead, it was left to the discretion of states and local authorities. Each city decides whether it wants to take an active or passive role in instituting accessibility professionals and mechanisms of enforcement. Many municipalities in large cities have established a special office or commission in charge of enforcing accessibility of the built environment. Not all large cities, however, take the same approach to create expertise for implementing disability access laws, creating what this Article terms a diffused model of professionalization and enforcement. While most cities take a similar “hands-on” approach with enforcing disability access laws in their government-owned buildings and facilities, a variety of methods exists for enforcing the law in privately owned places of public accommodations. This Article also looks beyond the United States to Israel, a country that modeled its disability rights laws after the United States, yet it has a centralized model of professionalization and enforcement, standardized, streamlined, and enforced at the national level. The two legal systems diverge on issues of federalism, the role of government and legal culture, yet they converge on their views of the ways disability anti-discrimination law should look. Nevertheless, despite this similarity, the Israeli system embraces a centralized and proactive approach to the professionalization and enforcement of accessibility, putting in place regulatory mechanisms that can only be found sporadically within local governments in the United States. Meaning, the Israeli ideas about enforcing accessibility are not entirely foreign in the U.S context, yet showing how a full embrace of these mechanisms can look is instructive in offering valuable lessons and recommendations on how professionalization could lead to enforcement of accessibility standards.

Developmental Justice and the Voting Age

Abstract: Several municipalities have lowered the voting age to 16, with similar bills pending in state legislatures and one considered by Congress. Meanwhile, advocates for youth are trying to raise the ages of majority across an array of areas of law, including ages for diverting criminal conduct into the juvenile justice system (18 to 21); buying tobacco (18 to 21); driving (16 to 18); and obtaining support from the foster care system (18 to 21). Child welfare advocates are fighting the harms of Adultification, meaning the projection of adult capacities, responsibilities, and consequences onto minors. In legal and social history, seeing 16- and 17-year-olds as possessing adult capacities has connected with holding them responsible for adult decision-making, particularly in the criminal justice system, but also in disciplinary mechanisms at school. This effect is dramatically worse for children of color. These two movements are in tension; child welfare advocates are fighting Adultification while democracy advocates are fighting for younger entry into the adult political sphere. But the age of majority is not a technicality. It is a thick fabric of public and private laws formed for the protection of children and adolescents, an interwoven safety net, whose efficacy depends on the strength of the weave. Indeed, the age of majority plays a protective role in our 18-year-old voting age; the 16-year-old franchise exposes youth to constitutionally protected campaigning, inviting commercial and political interests to target teenagers with “political speech.” Currently, public law shields teenagers from this contact for fear they will be exploited, and private law enables parents to constrict campaign interactions with teenagers. Countless similar underappreciated harms of Adultification can carelessly deprive children of educational, housing, employment, and civic futures. The minor extant intrusions on the age of majority, such as the driving age, pale in comparison to the civic meaning of lowering the age of the franchise. When the voting age dropped from 21 to 18, states lowered their legal age of majority from 21 to 18 in response, influencing policies such as aging out of foster care and entitlement to child support beyond 18. As a core marker of citizenship, voting has had a powerful anchoring effect on ideas about civic maturity. Lowering the benchmark for civic maturity threatens to anchor a lower age for civic protection, as occurred when the 26th Amendment passed. This Article contends that 16- to 18-year-olds are entitled to their childhoods, as Greta Thunberg contends, with our protection and support, not to the burdens of adult hopes, adult expectations, adult uses, and adult consequences. It makes a claim for developmental justice grounded in participatory democracy. Lowering the voting age works at cross-purposes to the essential task of protecting youth from premature engagement with the criminal justice system, and with the long-term disenfranchisement that can come with that entanglement. With Adultification risking criminalization and criminalization risking disenfranchisement, current thinking about youth voting exposes disparities in public ambition for the future political participation of youth arising from the disparities in their childhood experiences.

Governing Privacy in the Datafied City

Abstract: Privacy — understood in terms of freedom from identification, surveillance and profiling — is a precondition of the diversity and tolerance that define the urban experience, But with “smart” technologies eroding the anonymity of city sidewalks and streets, and turning them into surveilled spaces, are cities the first to get caught in the line of fire? Alternatively, are cities the final bastions of privacy? Will the interaction of tech companies and city governments lead cities worldwide to converge around the privatization of public spaces and monetization of data with little to no privacy protections? Or will we see different city identities take root based on local resistance and legal action? This Article delves into these questions from a federalist and localist angle. In contrast to other fields in which American cities lack the formal authority to govern, we show that cities still enjoy ample powers when it comes to privacy regulation. Fiscal concerns, rather than state or federal preemption, play a role in privacy regulation, and the question becomes one of how cities make use of existing powers. Populous cosmopolitan cities, with a sizeable market share and significant political and cultural clout, are in particularly noteworthy positions to take advantage of agglomeration effects and drive hard deals when interacting with private firms. Nevertheless, there are currently no privacy front runners or privacy laggards; instead, cities engage in “privacy activism” and “data stewardship.” First, as privacy activists, U.S. cities use public interest litigation to defend their citizens’ personal information in high profile political participation and consumer protection cases. Examples include legal challenges to the citizenship question in the 2020 Census, and to instances of data breach including Facebook third-party data sharing practices and the Equifax data breach. We link the Census 2020 data wars to sanctuary cities’ battles with the federal administration to demonstrate that political dissent and cities’ social capital — diversity — are intrinsically linked to privacy. Regarding the string of data breach cases, cities expand their experimentation zone by litigating privacy interests against private parties. Second, cities as data stewards use data to regulate their urban environment. As providers of municipal services, they collect, analyze and act on a broad range of data about local citizens or cut deals with tech companies to enhance transit, housing, utility, telecom, and environmental services by making them smart while requiring firms like Uber and Airbnb to share data with city officials. This has proven contentious at times but in both North American and European cities, open data and more cooperative forms of data sharing between the city, commercial actors, and the public have emerged, spearheaded by a transportation data trust in Seattle. This Article contrasts the Seattle approach with the governance and privacy deficiencies accompanying the privately-led Quayside smart city project in Toronto. Finally, this Article finds the data trust model of data sharing to hold promise, not least since the European rhetoric of exclusively city-owned data presented by Barcelona might prove difficult to realize in practice.

The Injustice of Formal Gender Equality in Sentencing

Abstract: Over the past 40 years, the entire United States penal population has grown at an unprecedented rate, and the rate of female incarceration is growing at twice the rate of men. Given that there does not appear to be an increase in female criminality that corresponds with the increase in female incarceration, it may be inferred that the rising rate of female imprisonment is the result of changes in criminal justice law and policy that prescribe simplistic, punitive enforcement responses to complex social problems. While criminological research has paid increased attention to women and girls over the past decade, there is still much work left to be done. This Note aims to address a perceived gap in existing scholarship on female incarceration — existing research and proposed solutions have tended to focus on prison conditions and post-incarceration re-entry. While such work is imperative, an examination of the female pathways to incarceration is equally important. This Note argues reforms that target the front end of the incarceration process, namely sentencing, should be employed to address the rapidly rising rate of female incarceration. Part I of this Note first provides a brief overview of the mass incarceration crisis in America and the changes in criminal justice policy, namely sentencing policy, to which it is attributed. Part I then discusses the impact of changes in sentencing policy on female sentencing outcomes. Part II proposes a framework of inquiry to be used by policymakers engaged in the creation of gender-responsive sentencing policies. This framework includes an analysis of the scope and nature of female incarceration, the correlates of female criminality, and the impact of existing gender-neutral policies on women involved in the criminal justice system. Finally, Part III discusses the efficacy of gender-neutral sentencing policies in action and identifies two policies that exemplify proper application of the framework presented in Part II.