Volume 44, Issue 1 (2026)

A Flashlight in the Black Box of Tax: How the New Math Error Act Matters for Taxpayer Rights and Inequality and What Still Remains in the Dark

By jlieditors

By: Cecelia Peters

View/Download PDF Version: A Flashlight in the Black Box of Tax How the New Math Error Act Matters for Taxpayer Rights and Inequality and What Still Remains in the Dark (Peters)

A New Law Shines Light on IRS Math Error Notices

The Internal Revenue Service Math and Taxpayer Help Act (IRS Math Act) was signed into law on December 2, 2025.[1] The law aims to fix a long-standing problem in tax administration: the lack of clear, specific information in math error notices sent to taxpayers.[2]

 

Math error notices are a tool that the IRS can use to assess additional tax when a mathematical or clerical error is present on a taxpayer’s return without going through formal deficiency procedures.[3] IRC §6213(b)(1) was first implemented in the Revenue Act of 1926 and has long been understood as a tool to promote tax administration efficiency and correct non-substantive errors.[4] The issues the IRS can address in a math error notice have expanded over time, leading to millions of such notices issued every year.[5] Many of these math error notices are related to the Recovery Rebate Credit (RRC), Child Tax Credit (CTC), Earned Income Tax Credit (EITC), or errors with a taxpayer’s TIN or SSN.[6] However, the math error notice previously did not have to explicitly state the issue with the return.[7] Consequently, taxpayers often don’t know what the error is, the additional amount assessed, or how to respond if they disagree with the notice.[8] The IRS Math Act now requires a “clear explanation of the error alleged, including showing the mathematical change, and informs taxpayers they have 60 days from the date of the notice to request the math error adjustment be abated, or the adjustment generally will become final.”[9] These procedures help illuminate once-vague math error notices and address the Taxpayer Advocate Service’s many grievances with previous legislation.

 

Providing clear reasoning to taxpayers generally yields two major benefits and specifically aids taxpayers in collection proceedings. For one, the tax base is more informed. Taxpayers, upon receipt, understand the source of the error and know how to accept or challenge the assessment.[10] Should they seek advice from a tax practitioner, the taxpayer can better communicate their understanding of the issue.[11] Second, it creates a more streamlined and efficient administration of math error assessments.[12] Historically, many math error notices were automated and sent without manual review.[13] The act now mandates that an IRS agent is responsible for reviewing the taxpayer’s file, explaining the error at issue, and sending proper notice.[14] These hurdles prevent superfluous notices and help ensure that issues flagged in the IRS’s automated system are not substantive but mathematical or clerical.[15] Moreover, if a taxpayer does not receive proper notice and is in collection proceedings, the IRS Math Act establishes clear expectations for proper math error assessments. It is unlikely that a taxpayer will have the opportunity to challenge an improperly issued math error assessment unless they receive a collection due process (CDP) hearing.[16] At this stage in a tax return’s life, the taxpayer could request that the math error assessment be invalidated due to improper procedure, and now the rules for that procedure are more explicitly defined.[17] The benefits of clearer reasoning and explicit procedures outlined above are not exhaustive; however, they demonstrate the value of illuminating tax administration, especially where a taxpayer’s refunds are reduced, or their liability is amplified.

 

Why This Reform Especially Matters for Low-Income Taxpayers

Ambiguous math error notices especially impact low-income taxpayers’ returns.[18] Often, the notice is delivered due to an issue with refundable tax credits, namely the EITC and CTC.[19] As of March 21, 2024, the IRS reported that “people who earned $63,398 or less in 2023 may be eligible for” the former credit[20], while the latter may be claimed by any taxpayer who has children under the age of 17 and whose income does not exceed $200,000.[21] As a result, these credits are only available to lower-income households. Therefore, low-income taxpayers are subject to a disproportionate amount of math error notices.[22] It is important to note, though, that the IRS is not intentionally targeting low-income people in its administration of math error notices.[23] Rather, this is a natural consequence of math error assessments correcting improperly claimed credits that can only be applied to lower-income households.[24] Math error notices, especially those found to be incorrectly assessed, weigh heavily on these taxpayers who lack the resources or opportunity to challenge ambiguous notices. Further, low-income taxpayers who have been hit with a math error notice often lack access to or awareness of low-income tax clinics or other free services available to assist them.[25] The IRS Math Act helps fill this knowledge gap by clarifying why the notice was issued and how a taxpayer can seek justice if they wish to challenge it.[26]

 

Taxpayers are Still Missing a Meaningful Remedy for Improper Math Error Notices

The Taxpayer Bill of Rights specifies that “the Commissioner shall ensure” certain taxpayer rights, including “the right to challenge the position of the Internal Revenue Service and be heard”.[27] Math errors, as previously discussed, are designed to eliminate burdensome deficiency procedures for non-substantive issues.[28] However, what happens if the IRS fails to comply with the procedures set forth in the IRS Math Act? If the IRS issues a math error notice to a taxpayer but does not follow the procedures outlined in the IRS Math Act and the assessment in the math error notice is incorrect, the taxpayer may have no opportunity to dispute the underlying tax.[29]

 

Additionally, if there was a mathematical or clerical error in the taxpayer’s original return, the IRS may issue a notice that improperly overstates the issue, and, again, the taxpayer may not be able to have the proper amount of tax assessed.[30] With this in mind, a taxpayer may lose their opportunity to be heard if the math error notice is improperly issued and there is no obvious path to abate or reconsider the math error assessment after the 60-day window elapses.[31] The circumstances in which a taxpayer could hold the IRS accountable for their noncompliance require a perfect storm of improper notice and the privilege of time, resources, and opportunity.[32] Further, the taxpayer must fully pay the liability and file a refund suit with the U.S. District Court or the Court of Federal Claims.[33] The only other time that the validity of a math error assessment can be challenged after the 60-day notice is during a CDP hearing.[34] These hearings are available to taxpayers who the IRS is trying to collect outstanding tax liability.[35] It is only at this point that the taxpayer could argue that the math error notice was invalidly assessed.[36] However, the likelihood that a taxpayer would ever be eligible for a CDP hearing is suspect.[37] Many math error notices affect refundable credits, meaning the adjustment reduces the refund a taxpayer is owed and does not create an outstanding liability.[38] Further still, if the math error did produce additional tax liability, by the time the IRS issues a CDP hearing opportunity, the tax liability is likely fully paid.[39] Many taxpayers voluntarily pay what the IRS reports they owe, regardless of whether it is accurate, and others have their tax liabilities paid off by refunds from subsequent years.[40] Such scenarios satisfy the first requirement to go to District Court, but again, if a taxpayer were unaware of the notice entirely, or did not know what the “math error” was, they may never know how or why they would challenge it.[41] Altogether, the lack of a remedy for improperly assessed math error notices raises significant concerns about IRS accountability in the transparent administration of taxes.

 

To the IRS Math Act’s credit, in an ideal world where the IRS follows all the procedures outlined in the bill, more taxpayers would have the opportunity to communicate with the IRS during the 60-day reconsideration window.[42] However, the question posed is not “if taxes were administered perfectly”; in the real world, math error notices are common and often incorrect.[43] Under current restrictions on a taxpayer’s opportunity to dispute these improper notices, taxpayers are left with no right to be heard until they are subject to collections, or their tax is fully paid, should an improper notice be sent.[44] Therefore, with respect to math error assessments, it is not obvious that taxpayers experience their “right to be heard” so long as their dispute with the IRS is mathematical or clerical, which have ever-expanding definitions.

 

Illuminating the Importance of Working Towards Better Tax Administration

Transparency in the administration of math error notices shines a light on the confusing world of tax. Incremental measures, such as the IRS Math Act’s clear explanations and descriptions of next steps, help create a more informed tax base, making tax administration feel more approachable. Continued improvement, however, is crucial to a more transparent, accessible, and well-lit tax system.

[1]Alexander Rifaat, IRS Math-Error Bill Becomes Law, TaxNotes (Dec. 8, 2025), https://www.taxnotes.com/tax-notes-today-federal/return-preparation/irs-math-error-bill-becomes-law/2025/12/02/7tb9n; House Ways and Means Comm., President Trump Signs Ways and Means Bill Protecting Taxpayer Rights, Requiring IRS to Show Its Math When Changing Returns (Dec. 1, 2025), https://waysandmeans.house.gov/2025/12/01/president-trump-signs-ways-and-means-bill-protecting-taxpayer-rights-requiring-irs-to-show-its-math-when-changing-returns/.

[2] Rifaat, supra note 1. See also House Ways and Means Comm., supra note 1. See Nat’l Taxpayer Advocate, Math Error: The IRS’s Use of Math Error Authority Overrides Important Taxpayer Rights (2018), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2020/07/ARC18_Volume1_MSP_12_MathError.pdf .

[3] I.R.C. §6213(b)(1); Revenue Act of 1926 §273(2)(f), Pub. L. No. 69-20, 44 Stat. 9, 55 (1926).

[4] Revenue Act of 1926 § 273(2)(f), supra note 3; Taxpayer Advocate Service, ARC22 Purple Book: Improve Assessment & Collection (2023), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2023/01/ARC22_PurpleBook_03_ImproveAssmtCollect.pdf ; Taxpayer Advocate Service, Math Error Notices: What You Need to Know about What the IRS Needs to Do to Improve Notices (Apr. 19, 2022), https://www.taxpayeradvocate.irs.gov/news/nta-blog/nta-blog-math-error-notices-what-you-need-to-know-and-what-the-irs-needs-to-do-to-improve-notices/2022/04/.

[5] TAS, supra note 4; Caleb Smith, Improving Math Error Notices: Reviewing the Taxpayer Assistance Act, 186 Tax Notes Fed. 2053 (Mar. 17, 2025), https://www.taxnotes.com/procedurally-taxing/improving-math-error-notices-reviewing-taxpayer-assistance-act/2025/03/13/7rn2d ; Margot Crandall-Hollick, Improving Tax Administration, One Math Error Notice at a Time, Tax Policy Center (May 14, 2024), https://taxpolicycenter.org/taxvox/improving-tax-administration-one-math-error-notice-time ; National Taxpayer Advocate, Math Error Notices: Although the IRS Has Made Some Improvements, Math Error Notices Continue to Be Unclear and Confusing, Thereby Undermining Taxpayer Rights and Increasing Taxpayer Burden (2018), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2020/07/ARC18_Volume1_MSP_12_MathError.pdf ; Taxpayer Advocate Service, Math Error Authority: Authorize the IRS to Summarily Assess Math and “Correctable” Errors Only in Appropriate Circumstances, in 2015 Annual Report to Congress vol. 1 (LR #2) (2015), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2020/08/ARC15_Volume1_LR_02_Math-Error-Authority.pdf.

[6] TAS, supra note 4; Treasury Inspector General for Tax Administration, Existing Compliance Processes Will Not Reduce the Billions of Dollars in Improper Earned Income Tax Credit and Additional Tax Credit Payments, Ref. No. 2014-40-093 (Sept. 29, 2014), https://www.oversight.gov/sites/default/files/documents/reports/2022-03/201440093fr.pdf ; Nat’l Taxpayer Advocate, supra note 5.

[7] Internal Revenue Manual (IRM) §21.5.4, General Math Error Procedures (Internal Revenue Serv. U.S. Dep’t of the Treasury), https://www.irs.gov/irm/part21/irm_21-005-004r. See also Crandall-Hollick, supra note 5; Smith, supra note 5; House Ways & Means Comm., supra note 1.

[8] I.R.M. §21.5.4; Crandall-Hollick, supra note 5; Smith, supra note 5; House Ways & Means Comm., supra note 1.

[9] House Comm. on Ways and Means, H.R. 998 One-Pager (Mar. 2025), https://waysandmeans.house.gov/wp-content/uploads/2025/03/HR-998-One-Pager.pdf ; Rifaat, supra note 1; IRS MATH Act, Pub. L. No. 119-39, 139 Stat. 659 (2025).

[10] Rifaat, supra note 1; House Ways & Means Comm., supra note 1.

[11] Smith, supra note 5.

[12] Rifaat, supra note 1; House Ways & Means Comm., supra note 1; ABA Banking Journal, Senate-approved IRS reform addresses math, clerical error procedures (Nov. 26, 2025), https://bankingjournal.aba.com/2025/11/senate-approved-irs-reform-addresses-math-clerical-error-procedures/.

[13] TIGTA, supra note 6.

[14] IRS Math Act, supra note 9; Rifaat, supra note 1; House Ways & Means Comm., supra note 1.

[15]  TIGTA, supra note 6; Rifaat, supra note 1; IRS Math Act, supra note 9.

[16] Caleb Smith, Improving Math Error Notices: Reviewing the Taxpayer Assistance Act, TaxNotes (Mar. 17, 2025) https://www.taxnotes.com/procedurally-taxing/improving-math-error-notices-reviewing-taxpayer-assistance-act/2025/03/13/7rn2d ; Rifaat, supra note 1; Low Income Taxpayer Clinics (LITCs) Support Center, Know Your Rights As A Taxpayer (Feb. 6, 2022), https://taxpayer-rights.org/wp-content/uploads/2022/02/Fact-Sheet-Math-Error-02-06-22.pdf.

[17] Smith, supra note 16; Caleb Smith, Getting to “Why”: Jurisdictional Riddles with Math Errors, TaxNotes (July 18, 2025), https://www.taxnotes.com/procedurally-taxing/getting-why-jurisdictional-riddles-math-errors/2025/07/18/7ss0r.

[18] Nat’l Taxpayer Advocate, supra note 5.

[19] Taxpayer Advocate Serv., The Preservation of Fundamental Taxpayer Rights is Critical as the IRS Develops a Real-Time Tax System, in 2012 Annual Report to Congress vol. 1 (Most Serious Problems, Problem #10) (2012), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2020/08/Most-Serious-Problems-The-Preservation-of-Fundamental-Taxpayer-Rights-Is-Critical-as-the-IRS-Develops-a-Real-Time-Tax-System.pdf ; TAS, supra note 4; Crandall-Hollick, supra note 5; TIGTA, supra note 6.

[20] Internal Revenue Service, Low- to Moderate-Income Workers May Be Eligible for the Earned Income Tax Credit, IRS (Mar. 21, 2024) https://www.irs.gov/newsroom/low-to-moderate-income-workers-may-be-eligible-for-the-earned-income-tax-credit.

[21] National Taxpayer Advocate, supra note 5; TIGTA, supra note 6; Internal Revenue Service, Earned Income Tax Credit (EITC), IRS (last updated Dec. 4, 2025), https://www.irs.gov/credits-deductions/individuals/earned-income-tax-credit-eitc ; Ashley Burnside, The Child Tax Credit and Mixed Immigration-Status Families (Mar. 2, 2022), https://www.clasp.org/publications/fact-sheet/child-tax-credit-and-mixed-immigration-status-families/.

[22] National Taxpayer Advocate, supra note 5; TIGTA, supra note 6.

[23] National Taxpayer Advocate, Math Error, supra note 5.

[24] Id.

[25] Taxpayer Rights Foundation, supra note 16; House Ways & Means Comm., supra note 1.

[26] Rifaat, supra note 1; IRS MATH Act, supra note 9; House Ways & Means Comm., supra note 1.

[27] I.R.C. §7803(a)(3)(D).

[28] ABA Banking Journal, Senate-Approved IRS Reform Addresses Math, Clerical Error Procedures, supra note 12; TAS, supra note 4.

[29] Taxpayer Advocate Service, ARC22 Purple Book: Improve Assessment & Collection (2023), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2023/01/ARC22_PurpleBook_03_ImproveAssmtCollect.pdf; Taxpayer Advocate Service, Math Error Notices: What You Need to Know about What the IRS Needs to Do to Improve Notices (Apr. 19, 2022), https://www.taxpayeradvocate.irs.gov/news/nta-blog/nta-blog-math-error-notices-what-you-need-to-know-and-what-the-irs-needs-to-do-to-improve-notices/2022/04/; TAS supra note 19.

[30] TIGTA,  supra note 6; Taxpayer Advocate Service, Continue to Limit the IRS’s Use of “Math Error Authority” to Clear-Cut Categories Specified by Statute, in National Taxpayer Advocate 2023 Purple Book (2023), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2023/01/ARC22_PurpleBook_03_ImproveAssmtCollect_8.pdf ; National Taxpayer Advocate, supra note 29; Smith, supra note 5.

[31] TIGTA,  supra note 6; National Taxpayer Advocate, supra note 5 ; TAS, supra note 30; National Taxpayer Advocate, supra note 29.

[32] National Taxpayer Advocate, supra note 5; Taxpayer Advocate Service, “Real” vs. “Unreal” Audits And Why This Distinction Matters,  (Jul. 6, 2018), https://www.taxpayeradvocate.irs.gov/news/nta-blog/ntablog-real-vs-unreal-audits-and-why-this-distinction-matters/2018/07/ ; Smith, supra note 17; Smith, supra note 16.

[33] TAS, supra note 4; Smith, supra note 5.

[34] Smith, supra note 5.

[35] Smith, supra note 16

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] TAS, supra note 4; Taxpayer Rights Foundation, supra note 16; National Taxpayer Advocate, supra note 5.

[42] Rifaat, supra note 1; House Ways & Means Comm., supra note 1.

[43] TIGTA, supra note 6; TAS, supra note 30; National Taxpayer Advocate, supra note 29.

[44] TAS, supra note 30.

The Cost of Fairness: Why LIHTC’s Expense Can Be a Progressive Strength

By jlieditors

By: Sumati Srivastava

View/Download PDF Version: The Cost of Fairness Why LIHTC’s Expense Can Be a Progressive Strength (Srivastava)

 

The Low-Income Housing Tax Credit (LIHTC) is the United States’ largest federal program for incentivizing the development and preservation of affordable rental housing. LIHTC builds are often criticized for being more expensive than market-rate construction, largely due to regulatory compliance costs. Despite these heightened costs, LIHTCs can be an essential part of the progressive plan to combat the housing crisis if we distinguish between regulations that further equity and safety and those that are unjustifiably burdensome.

If we move beyond the false dichotomy between defending all entrenched regulation and a blanket rejection of the LIHTC framework, we can refine the regulatory infrastructure to promote housing development while retaining other forms of equity. This approach allows us to keep regulations that further equitable goals while eliminating inefficiencies that prevent housing production squander resources meant to aid financially vulnerable groups. Accepting higher administrative costs is a rational tradeoff when it guarantees that the affordable housing supply increases and the resulting builds comply with essential regulations, such as tenant protections and environmental safeguards.

 

I. LIHTC: Structure, Critiques, and Progressive Potential

The LIHTC program awards federal tax credits to private sector developers who build or rehabilitate housing reserved for low-income tenants. The federal government allocates credits to states, which then select projects through competitive application processes. To qualify for a credit allocation, developers must meet strict requirements on rents, tenant income, and property maintenance, enforced through multifaceted legal and bureaucratic processes involving numerous agencies and specialists. Developers must partner with financial and legal professionals to ensure compliance with complex statutes, regulations, building codes, fair housing mandates, and local ordinances. These intersecting authorities and requirements make LIHTC builds complex and costly.

Critics on the left decry LIHTC as a market-based program that often fails to deliver on its promise to efficiently create affordable housing with government support. This school of thought highlights how filtering subsidy dollars through layers of legal and administrative oversight diminishes the resources that actually reach tenants or build housing units. Further, the role of private developers in affordable housing construction is criticized, since they necessarily prioritize profits over public service. To combat this issue, many on the left call for a larger role for nonprofit entities, a solution that would introduce yet another layer of administrative complexity.

Though these concerns are valid, the urgency of the housing crisis means we cannot wait to design a perfect solution before increasing the supply of affordable housing. While new public housing initiatives may avoid some of the administrative costs that LIHTC developments face, that does not mean we should ignore the potential of existing programs to alleviate housing pressure for low-income groups. Private developers play a key role in expanding housing supply nationwide, but they are unlikely to focus on affordable housing without targeted government incentives. Effective housing policy must balance retaining equitable tenant protections through necessary regulations while ensuring that affordable housing continues to be built at the needed scale.

 

II. Balancing Good and Bad Regulation

LIHTC’s regulatory framework warrants more than dismissal as mere bureaucratic overreach. It requires stringent tenant protections, including detailed inspection protocols, enforceable long-term affordability covenants, and comprehensive anti-discrimination obligations, all underpinned by federal and state oversight. These safeguards reflect a recognition that unregulated markets frequently fail to protect vulnerable populations. Additionally, environmental review processes and location criteria function as critical tools to mitigate negative impacts on residents and communities, preventing the recurrence of harms historically associated with urban renewal and exploitative landlord practices.

It is, however, equally true that some mandates have collectively outlived their usefulness. Inefficient paperwork, repeatedly obsolete reporting standards, and duplicative layers of agency review can slow project delivery, raise legal fees, and siphon resources better used for construction or support services. Progressives should not shy away from streamlining these components, provided reforms are carefully delimited to avoid weakening the core regulatory backbone that protects tenants and communities.

 

III. Interjurisdictional Inequality and the Progressive Case for LIHTC

While private developers can be part of a progressive coalition, there is a risk in embracing a purely supply-side solution to the housing crisis. Conservative legislatures are far more willing to give private developers free rein without robust tenant protections, affirmative fair housing standards, or anti-discrimination rules, which may increase the number of available affordable units at the cost of safety for marginalized renters. Though progressives shouldn’t set aside the importance of retaining important regulations, we should still try to build as many affordable units as possible under those confines.

For communities like transgender individuals, who already face disproportionate rates of homelessness, the legal context of a given state is critical. If the growth of affordable housing is concentrated in conservative regions with weak civil rights safeguards, many vulnerable people may face a stark dilemma: access shelter at the cost of facing hostile or unsafe environments, or remain homeless in hopes of eventually securing spaces in more supportive, inclusive states. The growth of “red state” housing markets could thus tilt political and economic power away from states with stronger protections, making it harder for progressive jurisdictions to set inclusive policy standards for the nation as a whole.

Accepting that LIHTC development costs will always be higher than those of unregulated private construction reflects progressive values. It means prioritizing safety, fairness, and environmental protection over building as many units as possible. The challenge is to find the right balance by cutting out unnecessary regulations that waste time and money while keeping the rules that make affordable housing a reliable source of stability and dignity for the people who need it most. It is worth paying more for new housing if that housing is safe, fair, accessible, and supported by strong legal protections, no matter where it is built.

Redrawing Democracy: The Supreme Court’s Texas Map Ruling and the Future of Racial Equality in Voting

By jlieditors

By: Maya Frazier

View/Download PDF Version: Redrawing Democracy The Supreme Court’s Texas Map Ruling and the Future of Racial Equality in Voting (Frazier)

When the Supreme Court of the United States allowed Texas to implement a newly drawn congressional map that a lower court found diluted the voting power of Black and Latino communities[1], it did more than resolve a single redistricting fight, it signaled a judicial tolerance for maps that entrench racial and partisan advantage at precisely the moment when demographic change should be translating into political power. On December 4, 2025, the Court’s order reinstating the map came as the nation faces the 2026 midterms, and analysts estimate the new lines could shift as many as five House seats toward Republicans — a concrete effect on representation and on which communities’ voices will matter in Congress.[2]

The Voting Rights Act of 1965 (VRA) and a decade of SCOTUS decisions have steadily narrowed courts’ willingness to police laws and practices that produce racially disparate effects. Section 2 of the VRA — the principal tool for litigating vote-dilution claims — permits plaintiffs to challenge maps that deny minorities an equal opportunity to elect representatives of their choice[3]. But since the Shelby County v. Holder (2013) decision removed the VRA’s preclearance regime, and subsequent rulings (such as Brnovich v. Democratic National Committee) further tightened standards for challengers, winning Section 2 claims has become more difficult.[4] The cumulative effect: states can more easily defend racially consequential redistricting choices, and litigants face heightened evidentiary and doctrinal hurdles.

Texas’s demographic story makes this legal posture particularly consequential. The state’s population has grown quickly in recent years — led in large part by Latino communities in urban and suburban counties, yet disparities persist between demographic shifts and political outcomes.[5] Under the newly reinstated map, White voters remain overrepresented relative to the overall population share, and minority-majority districts have been reconfigured in ways critics say reduce minority influence.[6] Lines on a map, in other words, become the mechanism by which demographic growth either becomes political representation — or gets walled off from it.

The Court’s order in LULAC v. Abbott  also illustrates two broader trends. First, litigation over redistricting is shifting from straightforward inquiries into discriminatory intent to procedural disputes about timing and election administration — a dynamic that often benefits mapmakers seeking to avoid disruption to electoral calendars. In its brief, unsigned order, the Court emphasized that the lower court had “improperly inserted itself into an active primary campaign,” effectively prioritizing electoral stability over resolution of complex racial-gerrymandering claims.[7] This posture raises the cost for courts to enjoin maps, and places a premium on speed and deference to state processes.

Second, the decision is likely to have a chilling, system-wide effect: if courts decline to block maps with plausible race-based harms, state legislatures may be emboldened to engage in race-conscious map-drawing cloaked in partisan justification. Across the country, civil-rights advocates fear an uptick in so-called “legal but unjust” maps (maps that nominally comply with neutral standards while disproportionately packing and cracking communities of color). The danger is not abstract: district boundaries determine which legislative majorities prevail, who gets to control budgets, how enforcement resources get allocated, and whose voices get heard — all fundamental determinants of social and economic inequality.[8]

What options remain for those seeking to challenge or mitigate the effects of the Texas decision? Litigation is not foreclosed — Section 2 challenges remain viable under the right record and theory (especially where plaintiffs can offer alternative districting plans).[9] But the bar and path to relief are narrower and slower than many advocates hoped. Legislative reform is perhaps the clearest structural remedy. The now-reintroduced John R. Lewis Voting Rights Advancement Act (JLVRAA) aims to restore a modernized form of preclearance and strengthen federal review of changes that could adversely affect minority voters, a statutory back-stop that could blunt the effect of Court decisions like Shelby and the new Texas ruling.[10]

But given political headwinds at the federal level, state-level reforms remain especially important and potentially more immediately actionable. Independent redistricting commissions reduce partisan control over mapmaking and often result in more competitive and representative outcomes.[11] State courts and state constitutions provide additional venues for challenges: several recent victories in state courts over unfair maps underscore that federal doctrine is not the only path to meaningful redistricting reform.[12] Data transparency and public participation in map-drawing further act as tools to prevent discriminatory line-drawing.[13]

The Texas ruling should also be understood in the broader context of concurrent barriers to electoral equality. Voter-ID laws, voter-roll purges, limitations on early and mail voting, and uneven election-administration resources all interact with redistricting to shape who can vote — and whose votes translate into seats.[14] The cumulative architecture can either mitigate or magnify long-standing racial and socioeconomic inequalities. When courts retreat from vigorous enforcement of anti-discrimination doctrines, those administrative and legislative tools gain increased power in shaping the composition of the electorate.[15]

For scholars and advocates, the moment calls for a two-track strategy: litigate aggressively where Section 2 or state constitutional protections provide a plausible path; and push hard for institution-building reforms that reduce partisan capture of redistricting: independent commissions, transparent public mapping tools, and statutory rules emphasizing geographic compactness, communities of interest, and proportionality. At the same time, legislative campaigns — even if uphill — to revive robust federal protections like the JLVRAA remain essential if we hope to restore effective national protection against localized practices that dilute minority representation.

Finally, the stakes are not only legal, but democratic as well. Representation matters not just for recognition of communities, but for more tangible outcomes: who gets roads, schools, public-health resources, and enforcement oversight. The Texas map decision is a stark reminder that the law of redistricting is not a hidden technicality, it is a central mechanism of political power. If courts and legislatures fail to close the gap between demographic change and political voice, the result will be a society in which the formal right to vote exists in name, but the effective power of that vote is unevenly distributed. That is the inequality at issue when lines on a map become the front line of democracy.

[1] League of United Latin Citizens v. Abbott, U.S. District Court, W.D. Texas, El Paso Division; Eleanor Klibanoff, Federal court blocks Texas from using new congressional gerrymander in 2026 midterms, Texas Tribune(Nov. 18, 2025), https://www.texastribune.org/2025/11/18/texas-redistricting-ruling-lawsuit-el-paso-court-2026-midterms/.

[2] Amy Howe, Supreme Court Allows Texas to Use Redistricting Map Challenged as Racially Discriminatory, SCOTUSBlog (Dec. 4, 2025), https://www.scotusblog.com/2025/12/supreme-court-allows-texas-to-use-redistricting-map-challenged-as-racially-discriminatory; LULAC v. Abbott.

[3] Voting Rights Act of 1965 § 2, 52 U.S.C. § 10301 (2018).

[4] See Shelby County, Ala. v. Holder, 570 U.S. 529, 530 (2013); Brnovich v. Democratic Nat’l Convention, 594 U.S. 647, 648 (2021).

[5] Texas Population Estimates and Projections 2024, Texas Demographic Center (2024), https://demographics.texas.gov/Visualizations/2024/Estimates2024/ .

[6] Adam Wren, Texas Redistricting Map Heads to Supreme Court, Wash. Post (Dec. 4, 2025), https://www.washingtonpost.com/politics/2025/12/04/texas-redistricting-map-supreme-court/.

[7] Id.

[8] See generally Wren, Texas Redistricting Map Heads to Supreme Court; Texas Republicans Unveil New Redistricting Map in Push for New Lines, The Guardian (Oct. 1, 2025), https://www.theguardian.com/us‑news/2025/oct/01/texas-redistricting‑map-republicans-gerrymandering (explaining the potential racial consequences of gerrymandering).

[9] VRA § 2.

[10] John R. Lewis Voting Rights Advancement Act of 2023, Pub. L. No. 118-11, 137 Stat. 22 (2023).

[11] American Academy of Arts & Sciences, Independent Citizen Redistricting Commissions, American Academy of Arts & Sciences (2025), https://www.amacad.org/news/state-legislative-update-independent-citizen-redistricting-commissions.

[12] See Yurij Rudensky, Alaska Supreme Court Strikes Down Gerrymandered Districts, State Court Report (May 1, 2023), https://statecourtreport.org/our-work/analysis-opinion/alaska-supreme-court-strikes-down-gerrymandered-districts.

[13] See generally, Kristen Clarke & Eliza Sweren‑Wright, Principles for Transparency and Public Participation in Redistricting, Brookings (2021), https://www.brookings.edu/articles/principles-for-transparency-and-public-participation-in-redistricting/ (summarizing the principles for transparency in redistricting).

[14] Brennan Center for Justice, Voting Laws Roundup: 2023 in Review (Jan. 18, 2024), https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-2023-review.

[15] Leah Tulin & Yurij Rudensky, The Voting Rights Act Persists, but So Do Its Adversaries, Brennan Center (Aug. 9, 2024), https://www.brennancenter.org/our-work/research-reports/voting-rights-act-persists-so-do-its-adversaries.

Fighting Pre-Crime?: Law Enforcement, Artificial Intelligence, and Predictive Policing Technology

By jlieditors

By: Aaron Spitler*

View/Download PDF Version: Fighting Pre-Crime? Law Enforcement, AI, and Predictive Policing Technology (Spitler)

For law enforcement agencies (LFAs), the allure of artificial intelligence (AI) is hard to resist. Vendors of AI-powered products have pitched them to police departments by emphasizing how this software can help stop crime in its tracks. The most recent version of Gotham,[1] a data analysis platform created by tech giant Palantir, has been sold to LFAs with assurances that it can pinpoint potential crime locations. Other companies[2] have found success marketing solutions that identify individuals who may be suspects in criminal investigations, leveraging AI to synthesize information on persons of interest. Regardless of the application, companies in this space have made clear that their AI-enhanced technologies could sabotage criminals attempting to evade the law. As a result, LFAs have paid close attention to what AI can do for them.

This strategy for “predictive policing,” where AI is used to analyze data sources such as arrest records and social media posts to anticipate potential crimes (and criminals), is not without its critics. Many charge that this approach blatantly flouts an individual’s right to privacy, placing those who have not perpetrated any crimes under unwarranted and disruptive surveillance. Issues with AI-enabled predictive policing are not limited to how solutions are deployed. Some problems can be traced to the biased data supplied to systems; their outputs can be used to justify over-policing in communities that have been treated unfairly in the past. Measures should be adopted to ensure transparency and accountability in how LFAs employ AI for policing. Otherwise, their unregulated use may erode civil liberties in the name of public safety.

 

Undermining Privacy Rights

 

In principle, predictive policing allows LFAs to monitor would-be criminals before they can act. However, in reality, evidence shows that these tactics have been used by the police to harass and intimidate individuals who have done nothing wrong. A 2021 Brookings report[3] highlighted this trend, citing a case in Florida where a minor was hounded by law enforcement due to an algorithm concluding that they were likely to break the law. Analyzing data points, including school records, the “intelligence-led”[4] program determined that the young man stood as a potential threat, even though he had not committed a serious offense. Armed with this information, officers began visiting his parents’ home without warning to question him, occasionally appearing multiple times a day. After enduring this intimidation campaign, the minor and his family decided to move out of their community. This episode not only underlines the faultiness of predictive tools but also how their misuse infringes upon the freedom from interference that civilians expect.

The sensitive nature of the information amassed by AI-powered predictive policing systems also deserves attention. Products used by LFAs can synthesize disparate data sources to provide a fuller picture of a person’s habits and connections. Researchers with the Brennan Center for Justice[5] outlined how these solutions can be abused by the police, as officers are granted unprecedented access to a person’s private life as part of their formal investigations. Drawing on data gleaned from sources such as vehicle registration forms and social media posts, LFAs can use information compiled by these technologies as they see fit, often without any mechanism for oversight. For individuals who have not violated the law, yet find themselves under surveillance, the glimpse into their day-to-day routines offered by these products can be chilling. With their privacy compromised, civilians affected by these systems may be forced to think twice about what they do and even what they say.

 

Reinforcing Entrenched Biases

 

Opponents of AI-powered predictive policing tools are not only concerned about how they are deployed. They also take issue with how they are developed. Many have emphasized that data fed to these algorithmic systems is often rife with biases that adversely affect minority communities. In a 2020 piece, the MIT Technology Review[6] unpacked how the data sets these tools rely on reflect the discriminatory over-policing of non-white communities across decades. As a result, system predictions simply replicate long-held prejudices about “bad neighborhoods.” Police then use this information to justify patrolling historically marginalized communities, navigating these spaces with the assumption that residents are more likely to be criminals. This dynamic underscores how misconceptions from the past inform the administration of justice in the present when police turn to these technologies. Whether LFAs who deploy these systems have acted to “correct the record,” potentially by reexamining the data integrated by these products, remains largely unknown.

Tools for predictive policing do more than regurgitate stereotypes about who is presumed to be a criminal and where they are likely to be found. They also have the effect of “digitizing” outmoded ideas about criminality that have taken generations to uproot. Wired[7] explored the inherent contradictions of these technologies, noting how tools designed to anticipate where incidents may occur make these determinations by processing flawed and unreliable data from years prior. LFAs have defended the use of these solutions by touting that they are purpose-built to provide objective recommendations on how best to leverage personnel and resources. Yet when considering that the data these systems require is skewed against certain groups, the trust placed in predictive policing to serve and protect all communities appears misplaced. While selling their solutions to improve the efficacy of policing, developers of these data-driven tools have created products where discrimination is a feature, not a bug.

 

Watching The Watchers

 

The drawbacks presented by powerful, but problematic, technologies for predictive policing can be summarized in a single phrase: all that glitters is not gold. Tools adopted by LFAs can be misused in ways that flagrantly disregard the privacy of civilians, all while hoarding sensitive information on individuals who have not run afoul of the law. They also leverage data sets on marginalized communities that are inaccurate at best and discriminatory at worst, further cementing deep-seated stereotypes about who poses a serious threat to public order. Weighing these factors, it may be reasonable to conclude that predictive policing systems have lost their luster in the eyes of many LFAs. Yet police around the world continue to purchase these products. From Argentina[8] to Germany,[9] LFAs remain captivated by the outward promise of predictive policing technologies, while discounting the legitimate dangers they pose. Civilians will, as a result, suffer the consequences of these decisions.

Policymakers must rein in the deployment of these technologies and erect guardrails that uphold civilians’ rights, irrespective of their backgrounds. Advocates for regulation argue that safeguards must have transparency and accountability as their lodestar. For instance, the city of San Jose, California adopted AI principles[10] that strictly govern how AI is used across departments, including those tasked with enforcing the law. Guidelines like these can be valuable for gauging the effectiveness of police systems and assessing whether these products have had a negative impact on civilians’ lives. Officials, along with LFA representatives, could also circulate information about the algorithms powering predictive policing tools. This may provide an opportunity for communities that have been historically over-policed to work together to expose biases in data sets. Technologies like predictive policing tools will be embraced by LFAs given the nature of their work, yet steps can be taken to ensure that their use benefits all people.

* Aaron Spitler is a researcher specializing in digital technologies and human rights. He has worked with organizations exploring these issues, including the International Telecommunication Union and Harvard University’s Berkman Klein Center for Internet & Society.

[1] Palantir Gotham Europe, Palantir (last visited Jan. 12, 2026), https://www.palantir.com/platforms/gotham/europa/.

[2] SoundThinking Unveils CrimeTracer Gen3: Expanding from Investigations to Agency-Wide Crime Data Solution, SoundThinking (Oct. 17, 2025), https://ir.soundthinking.com/news-events/press-releases/detail/324/soundthinking-unveils-crimetracer-gen3-expanding-from.

[3] Ángel Díaz, Data-driven policing’s threat to our constitutional rights, Brookings (Sept. 13, 2021), https://www.brookings.edu/articles/data-driven-policings-threat-to-our-constitutional-rights/.

[4] Pasco Sheriff’s Office Intelligence-Led Policing Manual, Pasco Cnty. Sheriff’s Off. (last visited Jan. 12, 2026), https://embed.documentcloud.org/documents/20412738-ilp_manual012918.

[5] Rachel Levinson-Waldman and Ivey Dyson, The Dangers of Unregulated AI in Policing, Brennan Ctr. For Justice (Nov. 20, 2025), https://www.brennancenter.org/our-work/research-reports/dangers-unregulated-ai-policing.

[6] Will Douglas Heaven, Predictive policing algorithms are racist. They need to be dismantled., MIT Tech. Rev. (Jul. 17, 2020), https://www.technologyreview.com/2020/07/17/1005396/predictive-policing-algorithms-racist-dismantled-machine-learning-bias-criminal-justice/.

[7] Chris Gilliard, Crime Prediction Keeps Society Stuck in the Past, Wired (Jan. 2, 2022), https://www.wired.com/story/crime-prediction-racist-history/.

[8] Harriet Barber, Argentina will use AI to ‘predict future crimes’ but experts worry for citizens’ rights, The Guardian (Aug. 1, 2024), https://www.theguardian.com/world/article/2024/aug/01/argentina-ai-predicting-future-crimes-citizen-rights.

[9] Marcel Fürstenau, German police expands use of Palantir surveillance software, Deutsche Welle (Aug. 4, 2025), https://www.dw.com/en/german-police-expands-use-of-palantir-surveillance-software/a-73497117.

[10] Maria Lungu, Predictive policing AI is on the rise—making it accountable to the public could curb its harmful effects, The Conversation (May 6, 2025), https://theconversation.com/predictive-policing-ai-is-on-the-rise-making-it-accountable-to-the-public-could-curb-its-harmful-effects-254185.

“Defending the Homeland”: Where Does it End? History’s Demonstration of How Far ICE Can Go

By jlieditors

By: Sophia Artley

View/Download PDF Version: “Defending the Homeland” Where Does it End? History’s Demonstration of How Far ICE Can Go (Artley)

In the land of the cold and snow, Immigration and Customs Enforcement (ICE) has become a key point of contention. The Trump administration has ramped up ICE presence and raids on the Minnesota community[1], and so far the Winter of 26 has been characterized by the federal law enforcement’s actions.

There is a sense of irony in the first moment sparking national attention took place during what was rare for Minnesota in January: bright blue skies with temperatures above freezing. In the early morning of Jan 7, an ICE officer shot and killed a woman – a bystander, a legal observer, a protestor, depending on who you speak to – but also a mother, a wife, and a concerned member of her community who lived blocks from where she would die in her car.[2] Local elementary schools went into lockdown, and just hours later, ICE showed up at dismissal time at Roosevelt High School.[3] As students left the building, cars showed up, chaos ensued, and staff and students were tear-gassed and pepper-sprayed.[4] The school went into lockdown.

Starkly, this day was both preceded and followed by several instances of aggressive actions by ICE toward Minnesota residents; the entry into other sensitive places, including hospitals and courthouses, and the detaining of United States citizens by an agency supposedly in place to police non-citizens. We observed a 5-year-old be detained and used as bait by ICE and soon after, a second observer, Alex Pretti, was killed on the streets of Minneapolis.[5]

As a community, we are grieving. We are observing our families, our neighbors, our friends, being violently removed from their places of work or home.[6] We have watched our children be attacked while still wearing their backpacks as they leave school.[7] Our streets have become unsafe, and our safe spaces –schools, libraries, churches, even hospitals – are no longer that. And so, the question I have heard from many is simple: when and where does it end?

The world of immigration law and enforcement is in many ways a wild west, where agencies act first and implement policy later.  Based off of complex statutory language, what is and is not allowed is generally vague and not clear.[8] This is a characteristic of immigration law in general, something that we see now but also when looking back through a history of United States immigration law and policy. Repeatedly, we see the federal government capitalize on the gray areas in immigration law, pushing the boundaries of legality until their actions become normal practice.

Take voluntary departure, for example. Immigration agencies’ early implementation of programs focused on returning undocumented immigrants to Mexico, without formal policy, in the 1920s eventually formalized into a statutorily sanctioned legal mechanism in the 1940s.[9]

The same is demonstrated in CBP “voluntary return” programs. Also known as “catch and release”, this program was a semi-formalized practice that involved physically escorting individuals back to the border before more processing could take place.[10] This program was part of CBP handbook policy, but unlike voluntary departure, never officially sanctioned in any statutory code and without accurate documentation of number of removals.[11]

Both voluntary departure and voluntary return demonstrate immigration agencies willingness to operate on their own, acting first with policy (if any) coming later. Even today, we see the similar evolution happening with self-deportation, something not codified into law but touted as a legal option by the Trump Administration on par with codified avenues in immigration law.[12]

Unless lawmakers act, the bounds that ICE is presently pushing may very well become normalized. Can ICE enter hospitals or public schools? Technically, yes, although for the past decades, agency policy was to limit activity in “sensitive areas”.[13] Can ICE enter a home to make an arrest without a judicial warrant? According to internal memos, yes they can.[14] Can ICE stop and arrest United States citizens? Can an ICE agent shoot and kill a bystander? Can ICE obtain personal information from other agencies, such as the Social Security Administration, to assist in pursuing noncitizens? Unless someone – judge or legislator – stops them, yes, yes, and yes.[15] The agency’s authorizing statutes are vague, and accordingly this “gray area” of law has been left up to the agency’s interpretation on most of these practices. Until now, everyone just operated on the norm that these things would not and should not happen.[16]

The movie The Holdovers provides an important reminder, “history is not simply the study of the past. It is the explanation of the present.” History demonstrates that agencies have the power to push and push until their ideas become normalized and pseudo-policy,  especially within the realm of immigration. It also demonstrates that without intervention from the judicial and legislative branches, these agencies will practically do both what they want and what is most convenient. What we are seeing on the streets of Minneapolis is not normal or understandable. But it will be, unless action is taken now. Lawyers and lawmakers can redirect, respond, and challenge now or risk allowing these practices to become characteristic of expected federal government action in our future.

[1] Rebecca Santana & Michael Balsamo, 2,000 federal agents sent to Minneapolis area to carry out ‘largest immigration operation ever,’ ICE says, PBS News (Jan. 6, 2026), https://www.pbs.org/newshour/politics/2000-federal-agents-sent-to-minneapolis-area-to-carry-out-largest-immigration-operation-ever-ice-says.

[2] Paul Walsh & Jeff Day, ‘She was an amazing human being’: Mother identifies woman shot, killed by ICE agent, Star Tribune (Jan. 7, 2026), https://www.startribune.com/she-was-an-amazing-human-being-mother-identifies-woman-shot-killed-by-ice-agent/601559922.

[3] Id; Mara Klecker et al., Walz tells ICE to ‘stay away’ from Minnesota schools after incident at Roosevelt High School, Star Tribune (Jan. 8, 2026), https://www.startribune.com/minneapolis-schools-close-citing-safety-concerns-after-federal-agents-clash-with-protesters-at-roosevelt-high-school/601560152.

[4] Mara Klecker et al., Walz tells ICE to ‘stay away’ from Minnesota schools after incident at Roosevelt High School, Star Tribune (Jan. 8, 2026), https://www.startribune.com/minneapolis-schools-close-citing-safety-concerns-after-federal-agents-clash-with-protesters-at-roosevelt-high-school/601560152.

[5] Klecker et al., supra note 6; Daniela Silva, Mother recounts terror at seeing her 5-year-old son be taken by ICE agents, NBC News (Jan. 30, 2026), https://www.nbcnews.com/news/us-news/mother-5-year-old-taken-ice-immigration-agents-use-son-bait-rcna256729; Gabby Vinick et al., A minute-by-minute timeline of the fatal shootings of Alex Pretti involving federal agents, (Jan. 26, 2026) https://abcnews.go.com/Politics/minute-minute-timeline-fatal-shooting-alex-pretti-federal/story?id=129547199.

[6] Santana, supra note 1

[7] Klecker et al., supra note 6; Daniela Silva, Mother recounts terror at seeing her 5-year-old son be taken by ICE agents, NBC News (Jan. 30, 2026), https://www.nbcnews.com/news/us-news/mother-5-year-old-taken-ice-immigration-agents-use-son-bait-rcna256729

[8]  8 U.S.C. § 1101 et seq.

[9] Adam Goodman, The Deportation Machine: America’s Long History of Expelling Immigrants 30– 31 (Princeton University Press, 2020); K-Sue Park, Self-Deportation Nation, 132 Harv. L. Rev. 1878, 1917 (2019); 8 U.S.C.A. § 1229c.

[10] Mark R. Rosenblum et. al., Migration Pol’y. Inst., The Deportation Dilemma: Reconciling Tough and Humane Enforcement 15 (Apr. 2014), https://www.migrationpolicy.org/sites/default/files/publications/RemovalsOverview-WEBFINAL.pdf; Lawsuit Against DHS for Failure to Disclose Records on “Voluntary” Returns, American Immigration Council (June 22, 2012),https://www.americanimmigrationcouncil.org/litigation/lawsuit-against-dhs-failure-disclose-records-voluntary-returns/.

[11] Id.

[12] Homeland Sec., CBP Home: Assistance to Voluntarily Self Deport (May 5, 2025); Proclamation No. 10935, 90 Fed Reg. 20357 (May 9, 2025); Lartey & Heffernan, The Feds Are Offering Migrants Cash to Self-Deport. Lawyers Call These Incentives Misleading, The Marshall Project (June 14, 2025), https://www.themarshallproject.org/2025/06/14/ice-immigration-dhs-deportation-facts.

[13] Elizabeth Jacobs, History of the ‘Sensitive Areas’ Policies and What Is in Place Now, Ctr. Immigr. Stud. (Mar. 7, 2025), https://cis.org/Jacobs/History-Sensitive-Areas-Policies-and-What-Place-Now.

[14] Rebecca Santana, Immigration officers assert sweeping power to enter homes without a judge’s warrant, memo says, AP News (Jan. 21, 2026) https://apnews.com/article/ice-arrests-warrants-minneapolis-trump-00d0ab0338e82341fd91b160758aeb2d; See also Orin Kerr, Can ICE Enter a Home to Make an Arrest With Only an Administrative Warrant?, Lawfare (Jan. 22, 2026) https://www.lawfaremedia.org/article/can-ice-enter-a-home-to-make-an-arrest-with-only-an-administrative-warrant (providing an analysis of potential legal arguments made by ICE to back their theory).

[15] Kimberly Kindy and Amanda Seitz, Trump administration hands over Medicaid recipients’ personal data, including addresses, to ICE, ABC News (July 17, 2025) https://abc7chicago.com/post/ice-gain-access-medicaid-recipients-personal-data-agreement-department-homeland-security-trump-admin/17165162/; Sarah Betancourt, Lawsuit aims to stop taxpayer information sharing with ICE, GBH News (Oct. 1, 2025) https://www.wgbh.org/news/local/2025-10-01/lawsuit-aims-to-stop-taxpayer-information-sharing-with-ice.

[16] See Jacobs, supra note 19.

The Surge of Pro Se Plaintiffs

By jlieditors

By: Krista Colbert

View/Download PDF Version: The Surge of Pro Se Plaintiffs (Colbert)

For millions of Americans, the decision to proceed pro se (self-representation) is not ideological or strategic—it is economic. The justice gap reflects a systemic failure of the United States legal system to provide equal justice under the law. Nowhere is this failure more apparent than in civil cases, where there is no right to counsel and legal services remain financially out of reach for most low-to-moderate-income individuals, leaving self-representation as the only option. The growing presence of artificial intelligence (AI) in legal spaces has made that reality more visible. AI tools now draft complaints, explain statutes, and suggest arguments at a speed and scale previously reserved only for those who could afford legal representation. While these tools promise access, they also make clear that inequality persists in who absorbs the risks, labor, and expense of litigation—costs that fall disproportionately on low-income litigants and already strained institutions.

The rise of AI-assisted pro se litigation is inseparable from resource inequality. The Legal Services Corporation reports that 92% of low-income United States Citizen’s substantial civil legal needs go unmet, largely because legal representation is financially out of reach for most people. In that context, self-representation is not a choice, but a necessity. Legal templates and AI tools fill a gap created by the absence of counsel. For unrepresented litigants, these tools can be empowering. Templates provide structure and AI provides language. Together, they help individuals file legal complaints —often the difference between being heard and being dismissed outright.

I began noticing a surge in pro se litigants while working at a defense-side firm in downtown Minneapolis. It did not arrive as a single dramatic case, but as a steady accumulation of work: longer complaints, more motions, and more filings that looked increasingly professional while remaining legally unsound. What stood out most was not simply the number of self-represented litigants, but how many appeared to be using preexisting legal templates—complaints, motions, and “affidavits”—augmented by artificial intelligence. But templates with faulty AI insertions do not replicate legal judgment. They often generate filings that are overinclusive, internally inconsistent, or based on inapplicable law. From the defense perspective, this creates a paradox: pleadings that are sophisticated enough to require a full response but flawed enough that the response requires significant time and effort to untangle.

Based on my experience in the summer of 2025, many pro se filings began to look strikingly similar, repeating the same language and structures and often using copied templates or AI-generated arguments without regard to the specific jurisdiction or legal relevance of the case. AI had not replaced the template; it had supercharged it. For many pro se litigants, this combination offers something that feels close to representation. Further, pro se litigants are given false confidence in their positions. From the defense table, however, it became clear that the costs of this practice are substantial—and unevenly distributed.

 

At the firm, we discussed the alarming rates of disproportionate resources these AI-generated filings consumed. What might once have been resolved quickly now requires extensive briefing.

  • Every claim, even one clearly copied from a generic template, must be addressed to avoid waiver.
  • Every citation—often outdated, irrelevant, or misapplied—must be checked.
  • Motions to dismiss become longer.
  • Discovery disputes multiply.

The additional labor is not optional; it is the cost of participation in a system that values procedural completeness.

 

These costs do not disappear; they are absorbed by defense firms that must respond to such filings, and even without comprehensive data on AI-assisted litigation, the growing volume of these submissions is plainly increasing defense expenses and contributing to court backlogs. Meanwhile, courts—particularly state courts—face mounting pressure. State courts already handle the vast majority of civil cases—an estimated three in four involve at least one party without counsel—placing additional pressure on underfunded judicial systems. Judges and clerks must devote increasing time to managing pro se cases, issuing corrective orders, and explaining basic procedure, all while maintaining neutrality. What appears to be expanded access is subsidized by institutions already stretched thin.

 

From the defense table, the broader pattern is clear. AI and templates do not eliminate inequality; they redistribute it.

  • Low-income litigants bear the risk of legal error.
  • Courts bear the administrative burden.
  • Defense firms bear increased litigation costs.

 

Ultimately, the underlying problem—unequal access to counsel—remains untouched behind a technological advancement that seemingly expands access to all.

This is not an argument against AI or against pro se litigants. It is an argument for recognizing what these tools are actually doing. They are filling a gap created by systemic underinvestment in civil legal representation. Access to information alone, without meaningful access to legal representation, does not produce the streamlined, mutually beneficial process that both individuals and institutions need.

The recent surge in AI-assisted pro se litigation is not a failure of individual litigants. It is a structural signal reflecting who is forced to navigate the legal system alone, whose labor keeps the system running, and whose resources are quietly consumed in the process. Access to counsel must be treated as a matter of justice rather than privilege, otherwise people will continue to use AI in an attempt to redistribute the costs of inequality.

In Defense of Anger: Reason, Morality, and the Law

By jlieditors

By: Lubasha Heredia

View/Download PDF Version: In Defense of Anger: Reason, Morality, and the Law (Heredia)

 

Anger occupies an uneasy place in legal discourse. Courts, commentators, and officials routinely valorize calm, neutrality, and restraint, while framing anger as irrational, destabilizing, or corrosive to reasoned judgment. Our legal culture emphasizes objectivity, neutrality, and formal legal reasoning. Anger is often evaluated by conflating the emotion with action, casting it as a destructive force to be avoided. Seneca wrote, “Raging with an inhuman desire to inflict pain in combat and shed blood in punishment, it cares nothing for itself provided it can harm the other: it throws itself upon the very weapons raised against it, hungry for a vengeance that will bring down the avenger.” Yet contemporary psychology offers a sharply different account.

The American Psychological Association defines anger as “an emotion… arising from frustration, real or imagined injury by another, or perceived injustice,” while distinguishing it clearly from aggression, which involves behavior intended to cause harm. Similarly, Merriam-Webster defines anger as a “strong feeling of displeasure and usually of antagonism,” and one of its closest synonyms, indignation, denotes a righteous anger at what one considers unfair, mean, or shameful. These definitions show that anger is not equivalent to violence; it is an internal evaluative state rather than an action.

This post argues that anger is a rational moral response to perceived injustice, inconsistently recognized by the law, and that public outrage at state violence signals the limits of legal legitimacy rather than disorder.

Psychological research supports this claim, showing that anger arises from appraisals (evaluations of situations as unfair) and a desire for equal recognition and respect, not impulse. People get angry when they feel that shared norms have been violated, for example, when a powerful actor harms someone perceived as undeserving. These appraisals necessarily involve judgments about blame, proportionality, and moral boundaries. Far from opposing reason, anger is structured by it. Despite this, legal and political commentary often treats public anger as a problem to be managed rather than information to be examined.

The law’s discomfort with anger is longstanding. Doctrine recognizes anger’s force through concepts such as heat-of-passion mitigation, yet when anger is directed at the state, it is swiftly delegitimized. Families are praised for composure rather than outrage, and anger is recast as disorder rather than critique. In practice, anger is tolerated only when private and politically inert. This asymmetry is particularly visible in cases involving law enforcement. Use-of-force analysis centers on the officer’s perceptions and fears, evaluating whether those fears were “reasonable” under the circumstances. In Graham v. Connor, the Supreme Court held that claims of excessive force by law enforcement during a seizure must be evaluated from the perspective of a reasonable officer on the scene, recognizing that officers often make “split-second judgments” in tense and uncertain situations. The analysis focused on factors such as the severity of the crime, whether the suspect posed an immediate threat, and whether the suspect was resisting or attempting to flee. In other words, an officer’s fear or stress is treated as a contextual justification rather than a moral failing. Meanwhile, the community’s anger is treated as extraneous — emotional excess rather than moral evidence. For example, a civilian’s anger – expressed as a raised voice, frustration, and refusal to immediately comply with simple commands – is treated as evidence of a threat and justification for escalating force. When community anger manifests as protest after an incident, courts evaluating subsequent police responses often treat that anger as a background disturbance or a public-order problem rather than a moral response. Psychologically, this imbalance is difficult to defend. Fear and anger are parallel moral emotions. Fear signals perceived threat; anger signals perceived violation. A legal framework that validates one while pathologizing the other privileges state perception over civilian judgment.

Anger also serves a crucial social function: it motivates corrective action. Historically, sustained public anger has driven legal reform, from civil rights protections to changes in policing practices. Demanding emotional restraint in the face of perceived injustice weakens one of the primary mechanisms that pressure the law to evolve. Suppressing anger in the name of order risks perpetuating injustice under the guise of stability.

After tragic events, anger often manifests in protests, public mourning, and calls for oversight. Psychologically, these are regulating actions aimed at restoring moral equilibrium when formal legal systems seem slow or biased. They offer emotional support to the community and emphasize actionable steps. In doing so, they prevent state violence from going unnoticed and honor the moral significance of the lost life.

To conclude, reframing anger as rational does not mean endorsing violence or abandoning the legal process. It means recognizing anger as information. It reveals where legal legitimacy is strained, where institutional explanations fail to persuade, and where procedural legality diverges from moral credibility. In law and policy, the task is not to silence anger but to listen to it — to ask what conditions produced it and what failures it reveals. Public anger in response to a tragic event is not evidence of hysteria or disregard for the rule of law – it is evidence of moral engagement with the law. A legal system that cannot tolerate anger in response to its own violence risks confusing order with justice. And a government that demands calm in the face of profound injustice should not be surprised when trust, rather than anger, is what ultimately disappears.