Over the last seven decades, mainstream U.S. torts jurisprudence shifted dramatically from rigid formal rules—focused on duty and culpability—to more flexible norms and principles of accountability. This shift was part of a general transformation of tort law that can be observed in the case law, the Restatements, and academic scholarship. Recently, however, where internet platforms such as Amazon are involved, courts appear to have reverted to a formalistic approach to limit duty, and hence liability, for personal injuries caused by the sale of defective products using the platform. With a few notable exceptions, courts have focused on the word “seller” in § 402A of the Second Restatement of Torts and have concluded that Amazon is not a “seller” when it facilitates a sale between a customer and a third-party merchant. This Article is the third in a series of articles that develop a functional, control-based approach to platform liability. It proceeds in five steps. First, we develop the general tort principles that govern liability for transactions in defective consumer products. Second, we show how Amazon, as a platform situated squarely between a third-party seller and the customer, has control over both sides of that transaction. This places Amazon in a position where they should be held accountable as a non-manufacturing seller, where the third-party seller is not amenable to suit. Third, we give an example of how courts have resisted this conclusion, taking shelter in formal concepts of title rather than traditional understandings of culpability and loss allocation. Fourth, we develop a functional approach to platform liability that uses traditional tort principles to evaluate the platform’s role in a transaction and apply those principles to Amazon. Lastly, we consider how these principles should apply to platforms generally.
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.
Crypto industry attorneys have argued in litigation and before regulatory agencies that the First Amendment immunizes their line of business from ordinary market regulation. On the merits, these arguments range from weak to frivolous. But they nevertheless create value for the crypto industry in two ways. First, they help to drive a predatory marketing strategy that attracts retail investors with appeals to individual liberty and resistance to “financial censorship.” Second, they tee up arguments that financial regulators’ jurisdiction should be interpreted narrowly under the “canon of constitutional avoidance” and the “major questions doctrine.” Overall, crypto’s First Amendment opportunism interferes with public efforts to protect investors, collect taxes, and fight financial crime—and ultimately, it debases the First Amendment itself. At every opportunity, agencies and courts should debunk these arguments in terms that are clear enough for the industry’s target audiences to understand.