Special Issue Digital Public Sphere Series

Legal discourse in the digital public square is driven by memoranda, motions, briefs, contracts, legislation, testimony, and judicial opinions. And as lawyers are taught from their first day of law school, the strength of these genres of legal communication is built on authority. But finding that authority often depends on a duopoly of for-profit legal research resources: Westlaw and Lexis. Although contemporary legal practice relies on these databases, they are far from ethically neutral. Not only are these “data cartels” expensive—creating significant access to justice challenges—they also are controlled by parent companies that profit by providing information to Immigration and Customs Enforcement that is used to surveil, arrest, and deport immigrants, creating a sense of ethical unease in the colloquial sense. One way to make legal research (and by extension, legal practice) more publicly and ethically accessible is to find ways to increase the availability of alternative and supplemental options to research authority. That said, the challenge is that there are not enough free, public alternatives. Wikipedia has the power to disrupt these data cartels and increase public access to legal information. The non-profit, publicly-funded encyclopedia that anyone can edit is already the silent first stop for many ¬legal researchers including judges, lawyers, and the public. With expert editing by law students and junior lawyers Wikipedia could become much more than a first step. This Essay builds on the scholarly literature and multiple years of classroom experience to suggest that law students are particularly well-positioned to challenge the singular reliance on data cartels by reimagining Wikipedia’s place in law and legal education. Further, teaching law students how to use and maintain Wikipedia sidesteps colloquial ethical issues raised by data cartels and produces concrete benefits for students: editing Wikipedia creates substantive opportunities to investigate different genres of legal writing, allows integration of students’ legal research and writing skills into practice, and instills ethical service obligations and provides professional identity formation opportunities during students’ formative years. With proper training, law students can grow as lawyers and legal writers while also making significant and meaningful contributions to the accessibility of legal knowledge during law school and beyond by creating and editing Wikipedia articles that are free, accurate, and ethical sources of that knowledge.

When autonomous algorithms act within socio-digital institutions and take wrong decisions, what are the consequences for legal liability? Is a uniform liability regime required, or should fragmentation along sectoral rules prevail? The article argues for a middle path between the Scylla of one-size-fits-all and the Charybdis of situationism. For an appropriate diversity of liability regimes, this article draws on a typology of machine behavior developed in IT-studies and simultaneously on sociological and philosophical theories which suggest identifying the foundations for three emerging socio-legal institutions in (1) personification of non-human actors, (2) human-machine association as an emergent social system with the qualities of a collective actor, and (3) distributed cognition in the interconnectivity of algorithms. The liability regimes proposed in this article will have a considerable impact on the digital public sphere and its regulation. The differentiating approach will contribute significantly to the digital constitution that is currently emerging.

Constitutional law in the European Union has become, in recent years, geared towards the mutual stabilization of liberal democracies. The vigilance required thereto is greatly facilitated by digital media. A major role has come to be played by social media platforms like Twitter and blogs such as the Verfassungsblog. While the rise of authoritarianism is one major concern, public law scholarship becomes increasingly involved in a controversy over its proper task.