The Record

The Essential Facilities Doctrine in the Digital Economy: Dispelling Persistent Myths

The antitrust “essential facilities” doctrine is reawakening. After decades of rejection and decline, the doctrine’s approach of granting access rights to facilities for which there is no reasonable alternative in the market has received several high-profile endorsements across the political spectrum. While courts have mainly applied the doctrine to physical infrastructure, its potential now lies in addressing the gatekeeping power of online platforms.

Wargames: Analyzing the Act of War Exclusion in Insurance Coverage and Its Implications for Cybersecurity Policy

Cyber risk insurance coverage has become an increasingly vital tool permitting both public and private-sector organizations to mitigate an array of cyber risks, including the prevalent issue of ransomware. However, despite the relatively rapid uptake of these policies, a series of issues and barriers emerged. Litigation has centered on issues ranging from what constitutes “covered computer systems” as many employees are working from home, to questions of negligence.

AI & Antitrust: Reconciling Tensions Between Competition Law and Cooperative AI Development

Cooperation between companies developing artificial intelligence (AI) can help them create AI systems that are safe, secure, and with broadly shared benefits. Researchers have proposed a range of cooperation strategies, ranging from redistributing “windfall” profits to assistance to address the harmful dynamics of a competitive race for technological superiority.

Informal Governance: Internet Referral Units and the Rise of State Interpretation of Terms of Service

The legal framework governing online speech relies on a distinction between the public and private sphere. A direct consequence of this distinction is the bifurcation between user and citizen. While the former is largely governed by private contractual norms—like a platform’s terms of service—the latter is traditionally governed by public law norms.

Who's Afraid of Section 1498? A Case for Government Patent Use in Pandemics and Other National Crises