This Essay examines racial formation in the context of the digital public sphere with a focus on how artificial intelligence (AI) systems’ understanding of social identities—especially racial identities—translates into real-world policy decisions about “bias,” “risk,” and “impact” as commonly interpreted by industry, government, and philanthropy. Drawing on examples in business advertising and consulting, I illustrate the ethical costs of uncritically integrating the notion of race as a data point, a drop-down menu of physical features one can mix and match. I turn then to three case studies of artist-technologists of color whose work models radical alternatives to techno- instrumentalist notions of race that often invisibly inform the quantification of social justice impact (sometimes referred to as effective altruism or strategic philanthropy). Rashaad Newsome, Amelia Winger-Bearskin, and Catie Cuan challenge discourses that frame racialized populations primarily in terms of negatively “impacted” communities, as the grateful recipients of largesse deserving of “access” to digital tools or technological literacy, or as those who can be best uplifted through the so- called “blessings of scale” and other maximalist approaches to social impact. In radical contrast, these three artist-technologists refigure those “impacted” as agentive co-producers of knowledge and imagination. Their art and performance engage alternative cultural values and metrics that counter the technological vision embracing Mark Zuckerberg’s refrain of “move fast and break things.” Instead, the aesthetic values of friction, duration, and liveness in their work offer counter- narratives and experience to more fully effect both joy and justice in the digital public sphere.

Debate about the regulation of “digital labor platforms” abounds globally among scholars, legislators, and other analysts concerned about the future of work(ers). In 2024, the European Parliament passed a first-of-its kind “Platform Work Directive” aimed at extending and growing protections for workers who labor for firms that utilize “automated systems to match supply and demand for work.” In this Essay, we consider the problematics of regulating the digital labor platform as a distinct subtype of firm and “platform work” as a novel form of employment. We propose that digital platforms are not firms, but rather labor management machines. Thus, the Directive is vastly underinclusive in its extension of much-needed rights to workers who toil under algorithmic decision-making systems.

This Article addresses the copyright regime of artistic works generated by artificial intelligence (AI). I argue that the law of authorship as developed by courts, together with the Intellectual Property Clause in the U.S. Constitution, entails that, if anyone is entitled to copyright ownership of these works, it is the AI itself. Arguments advanced in the literature that programmers, developers, or similarly situated humans should own the copyright instead are rejected. However, I argue further that countervailing policy considerations suggest that AI-generated works should remain in the public domain for the time being. In particular, the fundamental differences between AI-generated artworks and traditional artworks justify thinking of the former not as art, but rather as what I call “pseudo art.” Considerations concerning the nature of pseudo art support the position of the U.S. Copyright Office, who has so far denied copyright protection to AI-generated material.

We are witnessing the birth of a Platform Federation. Global platforms wield growing power over our public sphere–and yet our politics and public debates remain stubbornly state-based. In the platform age, speech can transcend international boundaries, but the repercussions of speech are mainly felt within our own domiciles, municipalities, and national territories. This mismatch puts countries in a difficult place, in which they must negotiate the tension between steering the public sphere to protect local speech norms and values and the immense benefits of free transboundary communication. This Article explores the outcome of this balancing act—what we call platform federalism: where it comes from, how it is unfolding, and how to make it better. The rise of global digital platforms brought up a crisis that has not yet been fully diagnosed. Until their appearance, the public sphere was disciplined by gatekeepers such as traditional mass media and other civil society institutions. They acted to enforce a common set of norms over public discourse. These gatekeepers fulfilled crucial social functions. They enacted and enforced the fundamental social norms that made public communication possible, while at the same time avoiding direct state intervention in public discourse. Through social media, people are now able to bypass these institutions and reach mass audiences directly—what we call the “bypass effect.” Countries are reacting to the consequences of the bypass effect by enforcing local social norms directly. Autocracies might enjoy the dubious luxury of shutting down Internet borders completely. This option, however, is not available for democracies, nor is it desirable. Democracies have embraced softer forms of regulation, which we call “state federalism.” As civil-society gatekeepers are bypassed, states take the mission of curating the public sphere onto themselves: they forcefully impose their own civility norms on platforms’ users (like Germany) or directly forbid fake news on them (like France). State federalism might work in restoring the public sphere’s civility, but it risks unduly imposing the state’s (as opposed to the community’s) values upon the population. State federalism, in other words, can quickly become incompatible with liberalism. We propose a new set of policy tools to maintain domestic civility in the public sphere while keeping state power at bay: civil society federalism. In civil society federalism, the state does not police the public sphere by itself, but rather requires platforms to invite civil society back into their gatekeeping role. These policies ask civil-society organizations to shape the norms that constitute public discourse; as in the past, they are the ones to exclude hate speech, profanity, or misinformation from the public sphere. By bringing civil society back, states can ensure the civility of the public sphere without exerting undue power over it.

In March of 2023, OpenAI released GPT-4, an autoregressive language model that uses deep learning to produce text. GPT-4 has unprecedented ability to practice law: drafting briefs and memos, plotting litigation strategy, and providing general legal advice. However, scholars and practitioners have yet to unpack the implications of large language models, such as GPT-4, for long-standing bar association rules on the unauthorized practice of law (“UPL”). The intersection of large language models with UPL raises manifold issues, including those pertaining to important and developing jurisprudence on free speech, antitrust, occupational licensing, and the inherent-powers doctrine. How the intersection is navigated, moreover, is of vital importance in the durative struggle for access to justice, and low-income individuals will be disproportionately impacted. In this Article, we offer a recommendation that is both attuned to technological advances and avoids the extremes that have characterized the past decades of the UPL debate. Rather than abandon UPL rules, and rather than leave them undisturbed, we propose that they be recast as primarily regulation of entity-type claims. Through this recasting, bar associations can retain their role as the ultimate determiners of “lawyer” and “attorney” classifications while allowing nonlawyers, including the AI-powered entities that have emerged in recent years, to provide legal services—save for a narrow and clearly defined subset. Although this recommendation is novel, it is easy to implement, comes with few downsides, and would further the twin UPL aims of competency and ethicality better than traditional UPL enforcement. Legal technology companies would be freed from operating in a legal gray area; states would no longer have to create elaborate UPL- avoiding mechanisms, such as Utah’s “legal sandbox”; consumers—both individuals and companies—would benefit from better and cheaper legal services; and the dismantling of access-to-justice barriers would finally be possible. Moreover, the clouds of free speech and antitrust challenges that are massing above current UPL rules would dissipate, and bar associations would be able to focus on fulfilling their already established UPL-related aims.