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From SSRN, an interesting new article titled “Seeing Through Colorblindness: Implicit Bias and the Law.” The abstract:

Once upon a time, the central civil rights questions were indisputably normative. What did “equal justice under law” require? Did it, for example, permit segregation, or was separate never equal? This is no longer the case. Today, the central civil rights questions of our time turn also on the underlying empirics. In a post-civil rights era, in what some people exuberantly embrace as post-racial, many assume that we already live in a colorblind society. Is this in fact the case? Recent findings about implicit bias from mind scientists sharply suggest other-wise. This Article summarizes the empirical evidence that rejects facile claims of perceptual, cognitive, and behavioral colorblindness. It then calls on the law to take a “behaviorally realist” account of these findings, and maps systematically how it might do so in sensible, non-hysterical, and evidence-based ways. Recognizing that this call may be politically naive, the Article examines and answers three objections, sounding in “junk science” backlash, “hard-wired” resignation, and “rational” justification.

And from the article:

“Behavioral realism” insists that the law account for the most accurate model of human thought, decisionmaking, and action provided by the sciences.3 Theories and data from the mind sciences are sharpening that model, and as a new scientific consensus emerges, the law should respond. Either the law should change to reflect that more accurate model, or provide reasons why it cannot or will not do so.

The Supreme Court settled in 1884 in Hurtado v. California that the 5th Amendment’s Grand Jury Indictment requirement is not incorporated through the Due Process Clause of the 14th Amendment. (I should note that Justice Harlan, of whom I am a fan, was the lone dissent in this case). Today, the grand jury indictment is one of the few remaining clauses that has not been incorporated.

In light of the 4-1-4 split in McDonald v. Chicago, and the unclear application of the Marks rule, could a District or Circuit Court find that the grand jury indictment right is applied to the states through the Privileges or Immunities Clause? If they did so, they would not need to disturb any precedent if they do not rely on Hurtado and due process.

This could make for an interesting challenge.

Facebook is launching a new feature that will automatically identify faces in photographs users upload. They will not use facial recognition technology to identify the photos–yet. So for the time being, people will still have to tag their friends. But Google Picasa already uses facial recognition technology to identify people. Hang on. Facebook will catch up soon enough.

H/T Engadget

Way back in 2008 in Omniveillance I wrote:

With the advent of photo-sharing Internet sites like Flikr, MySpace, and Facebook, people can now upload photographs and “tag” a specific person’s identity in the photo with metadata, as if they were captioning it in a scrapbook (i.e., John Doe is the third person on the left). Although currently the tagging process must be done manually, new facial recognition such as Google’s Picasa system utilizes artificial intelligence computers to automatically index and tag the subjects of photographs.147 Software like Polar Rose is capable of scanning the entire World Wide Web, matching faces with previously tagged photos based on similarities in biometric features, and automatically tagging the photo with the person’s identity.148 Berners-Lee mentions tagging as one of the key prerequisites to the semantic web.149

Once an image is tagged, these captions can be searched and indexed like any other document on the Internet. As aresult of this emerging image-analysis technology, a search engine like Google can easily correlate a person’s face with his name, contact information, personal preferences, friends, and any of his personal information located on the Internet. In fact, Google’s Director of Product Management, R.J. Pittman, “said that Google is developing visual crawling software that can be used for facial recognition and scene analysis.”150 Applied to Street View, this future technology can be combined with tagging and advanced image search capabilities to identify anyone who is recorded by omniveillance.

Yep.

Months ago I predicted that McDonald v. Chicago may wind up in a 4-1-4 split. At the time, I queried:

What happens if there is a 4-1-4 split as follows:

• Chief Justice Roberts, Justice Scalia, Justice Kennedy, and Justice Alito vote to incorporate the Second Amendment through the due process clause and strike down the Chicago law
• Justice Thomas rejects incorporation through the Due Process Clause, and chooses to extend the right to keep and bear arms (cf. 2nd Amendment) to the states through the Privileges or Immunities Clause, and strikes down the Chicago Law
• Justice Stevens, Justice Ginsburg, Justice Breyer, and Justice Sotomayor, uphold the validity of substantive due process incorporation but find that the Second Amendment should not be incorporated, and finds the Chicago law constitutional

Under the “Marks Rule” Marks v. United States, 430 U.S. 188 (1977), what would the precedent be in such a situation?

So what is the most narrow rule?

Professor Cohen at Faculty Lounge provides some insights:

In order to apply Marks we have to understand what the Court means by “narrowest grounds.” As Max Stearns has so well articulated in an article advocating including Marks as a part of the first year constitutional law curriculum, the rationale behind Marks is that the opinion with the “narrowest grounds” is precedential because it is logically entailed by the opinion of enough other Justices to make a majority who agree on the point. In Bakke, Justice Powell’s opinion on diversity being a compelling reason for affirmative action is logically entailed by the opinion of the four Justices who believe that affirmative action is constitutional in a wide variety of circumstances. Thus, his opinion is controlling on this point because it is, in essence, supported by a majority of the Court (even if the other Justices did not sign on to his opinion).

This same analysis is inapplicable in cases of the voting paradox. Justice Thomas’ opinion is not logically entailed by Justice Alito’s (just like Justice Alito’s is not logically entailed by Justice Thomas’). After all, they both completely reject each other’s rationales, so there can’t be any overlap. This is true in all voting paradox cases — the two positions that make up the majority vote on the outcome do not overlap and one does not logically entail the other.
…
Thus, Marks cannot apply to McDonald because there is no “narrowest grounds” implicitly agreed upon by the five Justices in the majority. This is true in all voting paradox cases.

So the question remains, on remand to the 7th Circuit, what will Judges Posner, Easterbrook, and Bauer do with this? Knowing Posner and Easterbrook, the Court almost certainly will rely on the plurality approach of using Due Process. But if this issue is raised in different circuits, could other courts rely on privileges or immunities as the “most narrow ground.” We shall see

Sadly, Dave’s wardrobe pales in comparison to Ron Rotunda’s ensemble.