Volume 25
The idea of a "public sphere"--a shared, ideologically neutral domain where ideas and arguments may be shared, encountered, and contested--serves as a powerful imaginary in legal and policy discourse, informing both assumptions about how public communication works and ideals to which inevitably imperfect realities are compared. In debates about feasible and legally permissible content governance mechanisms for digital platforms, the public sphere ideal has counseled attention to questions of ownership and control rather than to other, arguably more pressing questions about systemic configuration. This essay interrogates such debates through the lens of infrastructure, with particular reference to the ways that digital tracking and advertising infrastructures perform systemic content governance functions.
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.
Far before online platforms tried to imagine communities, the United States Supreme Court had to decide on how much their standards mattered. In this essay, Kendra Albert walks through the history of obscenity’s community standards doctrine, arguing that the Supreme Court’s debates and disagreements about how to regulate speech in that context presage more modern conversations over content moderation online. They sketch the community standards doctrine’s history, from the dozens of cases of the 1950s-70s to how networked technologies from 1989 to the early 2000s exacerbated earlier debates about which community’s standards matter, and how they should be applied. Albert then explains how shadow regulation by payment providers has supplanted the legal rules entirely, replacing theoretical community norms with corporate multinational risk, a move that parallels broader shifts in online speech.
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.
Since 2021, thirty-four U.S state legislatures have introduced bills regarding technology companies’ moderation of users’ content. Of these, three have successfully become law, most notably in Texas and Florida, which, in a national first, have banned social media companies from censoring users’ opinions or de-platforming political candidates. Critically, neither law depends on a federal regulator, instead advancing a vision of state-by-state internet speech regulation that, at times, allows the state to assert extraterritorial authority while proposing no clear mechanism for delineating in-state and out-of-state users or interactions. Social media laws like the ones in Texas and Florida directly implicate Dormant Commerce Claus concerns, which U.S. internet law has long avoided. Though later blocked by federal courts on other grounds, these social media laws likely violated the Dormant Commerce Clause, which requires that no state or local law places an undue burden on interstate commerce. While no court has yet reached the question, such arguments were raised challenging the Florida and Texas laws and will no doubt arise again as similar laws coming down the legislative pipe are contested in future. This Essay argues that no commitment to federalism in the face of changing technology justifies giving one state the authority to substantially interfere with how out-of-state residents talk to each other. While perhaps well-intentioned, these laws will, at best, further balkanize interstate online discourse by jeopardizing innumerable businesses and individuals communicating across state lines, and at worst, allow individual states to unconstitutionally step beyond the reach of federal law. Though some scholars have argued that Dormant Commerce Clause challenges may be overcome through use of geolocation tracking, such solutions raise a host of privacy and cybersecurity concerns that would, perversely, only contribute further to degradation of a democratic, digital public sphere.
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.
The most pressing debates in antitrust today center on major platforms like Amazon, Google, and Facebook. Platform markets are subject to strong network effects, which tend to create barriers to entry and reinforce market power. Frequently, the only way for a new platform to enter the market successfully is to differentiate itself from the leading incumbent in some way—often by offering exclusive content or features. However, recently some dominant platforms have attempted to prevent this by entering into a novel type of “most favored nation” (MFN) agreement with trading partners. Unlike traditional MFNs, which restrain pricing, these MFNs prohibit trading partners from offering any exclusive content, features, or other services to smaller platforms. These new MFNs are the subject of numerous ongoing lawsuits and regulatory probes involving major platforms, including Amazon. But they have not previously been examined in academic research. This article evaluates the novel antitrust issues they raise. The primary concern is that these MFNs may allow a dominant platform to forestall competitive entry by restraining the ability of new platforms to differentiate themselves. This is consistent with research in economics indicating that exclusive dealing can help to facilitate entry in network industries. I discuss some key differences between these restraints and traditional price-based MFNs, and I identify some key errors in recent judicial decisions evaluating them.
Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghostwriters has been criticized in the literature as unethical. This practice presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession. This Article fills that space by offering a quantitative and theoretical analysis of the gendered disparate impact of normative authorship omissions in law. Using patent practitioner signatures from patent applications and office action responses, which include a national identification number correlated to the time of patent bar admission, this work demonstrates how women’s names are disproportionately concealed from the record when the senior-most legal team member signs on behalf of the team. This work also suggests that, when women reach equivalent levels of seniority, they do not overexert their power to claim credit to the same extent as their male peers. This parallels sociological findings that competence-based perception, accent bias, and perceived status differentiation between male and female colleagues can manifest in adverse and disparate attribution for women. Under-attribution of female practitioners falsely implies that women do less work, are more junior, and do not deserve as much credit as their male colleagues. Addressing the failure of current practices requires cultural changes and regulatory action to ensure proper and equitable attribution in scholarship and industry. Legal obligations to maintain the integrity of the legal profession must include these affirmative steps to remedy this discrimination.
Digital networked society needs friction-in-design regulation that targets the digital architectures, supposedly smart (data-driven, algorithmic) systems, and interfaces that shape human interactions, behavior, and will (beliefs, preferences, values, intentions). The relentless push to eliminate friction for the sake of efficiency has hidden social costs that affect basic human capabilities and society. A general course correction is needed. Friction in the digital networked environment can come in many forms. It can be as simple as a time delay prior to publishing a social media post, a notice that provides salient information coupled with a nudge toward actual deliberation, or a query that tests comprehension about important consequences that flow from an action–for example, when clicking a virtual button manifests consent to share information with strangers. We explore many examples using a simple descriptive framework that helps analysts compare and evaluate them. One major obstacle in the United States to almost any regulation of how private companies design digital networked technologies and govern social interactions online is the First Amendment and its rigorous protections for free speech. The First Amendment has so often been used to strike down government regulation of various forms of speech that it now has a powerful preemptive effect, which some have called First Amendment Lochnerism. We are most concerned with the foreclosure of regulatory imagination and thus consideration and exploration of new regulatory possibilities, such as friction-in-design regulation. In this article, we clear the First Amendment brush and reveal an open and mostly underappreciated regulatory territory to explore. We argue that friction-in-design regulation should be understood as Twenty-First century time, place, and manner restrictions, akin to laws that prohibit using megaphones in the middle of the night, require permits before marches, and prohibit adult theaters in residential neighborhoods. This does not mean that friction-in-design regulation would escape First Amendment scrutiny altogether, of course. But it would trigger intermediate rather than strict scrutiny, so long as the friction-in-design regulation remained content neutral. In other words, not all friction-in-design regulations would qualify as content neutral time, place, and manner restrictions. We discuss various examples. At the same time, we advance a novel governance theory that casts time, place, and manner restrictions as a useful regulatory model to bring online from the offline context and conventional First Amendment jurisprudence. Properly understood, designed and applied, time, place, and manner restrictions constitute a system for balancing individual freedom to communicate with the collective (state) interest in maintaining social order and peace, both offline and online.
Emerging technologies, such as artificial intelligence and quantum computing, are predicted to grow exponentially over the next decade. This growth should lead to a substantial economic impact on various commercial markets, but it will also lead to different types of harms. These may include physical harms, such as a chess robot breaking a child’s finger, or non-physical harms, such as excessive privacy breaches and cyberattacks enabled by quantum computing. While considering the safe integration of emerging technologies into our commercial stream, stakeholders often overlook the vital role of insurance. So far, scholars have identified different roles insurance hold, such as spreading and reducing risk. This Article identifies a new role insurance has in the context of emerging technologies—enabling safe and productive innovation. The novelty of emerging technologies leads to difficulties in premium estimations and setting the terms of a liability policy to genuinely reflect the risks associated with an emerging technology. Despite this difficulty, insurance possesses the ability to enhance the integration of emerging technologies into daily commercial routines while mitigating the harms that may arise from this process. Throughout history, from the industrial revolution to outer space exploration, insurance has allowed innovative manufacturers to pursue breakthrough technologies while hedging their risks. The intersection of torts, technology and liability insurance is perpetually developing as each field continuously fuels the others. Emerging technologies lead to new types of risks and losses, creating new liability rules, which in turn drive the purchase of liability insurance. Other times, tort law reacts slowly to harms caused by emerging technology leading to the purchasing of liability insurance and only then to the formation of liability rules, which are influenced by the existence of these policies. Yet in other instances, the existence of liability rules and insurance helps facilitate the safe dissemination of emerging technologies into our commerce stream. This virtuous cycle is a dominant one in the realm of liability law. However, to date, little has been discussed on the interplay between these three fields. This Article challenges the notion that insurance is inadequate to cover emerging technologies given their novelty. It argues that insurance holds a vital underexplored role in advancing safe and healthy innovation and that, as a result, regulators should actively ensure its availability to both manufacturers and consumers. It aims to flesh out the influence torts, liability insurance and emerging technologies have on each other. Liability insurance allows consumers and manufacturers of emerging technologies to innovate while hedging their risks, thus acting as a catalyzing force of innovation itself.
Living with the Merchandising Right (Or How I Learned to Stop Worrying and Love Free-Riding Stories)
Trademark scholars love to hate the merchandising right (i.e., the use of trademark law to give trademark owners control over product markets in which the trademark is the good—e.g., a BOSTON RED SOX baseball cap). We think that trademark law should protect consumer interests. If no one thinks that sports teams manufacture their own merchandise, then there’s no possibility of source confusion. Rather than benefitting consumers, the merchandising right artificially increases consumer costs by giving trademark holders an unwarranted monopoly over the use of their marks as products.
Questions over what constitutes “reasonable” cybersecurity reporting and operating practices have long vexed businesses and policymakers. Given a lack of clear guidance from Congress, states have filled the vacuum by passing a series of laws requiring “reasonable” cybersecurity such as for manufacturers of Internet- connected devices. Other states have elected instead to provide safe harbors, like Ohio, which rewards companies for investing in a pre- determined list of recognized cybersecurity standards and frameworks—such as the National Institute for Standards and Technology (NIST) Cybersecurity Framework—by minimizing liability in the aftermath of a data breach. This Article: (1) summarizes the current state of state-level cybersecurity policymaking with a special emphasis on how states are defining “reasonable” cybersecurity; (2) discloses the results of a statewide survey on cybersecurity perceptions and practices among organizations in Indiana done in partnership with the Indiana Attorney General’s Office; and (3) makes a series of suggestions based on these findings about how to better educate and incentivize firms about instituting reasonable cybersecurity best practices.
The law governing an “individual genome” (the genetic material and information extracted from a single person) in the United States has two key shortcomings. First, it adopts an absolute conception of ownership, permitting only one entity to claim ownership over an individual genome—either the person from whom it was extracted or someone else, such as researchers and law enforcement officials. Consequently, the law fails to represent and protect the legitimate concurrent ownership interests of multiple entities stemming from, e.g., personhood, labor, and possession. Instead, it prioritizes one interest at the expense of another. Second, the law fails to accommodate the multifaceted and relational nature of an individual genome. An individual genome consists of both genetic material and genetic information; involves personal, familial, and collective aspects; and has varying degrees of excludability and subtractability. The law, however, does not consider these characteristics together.
To combat bioterrorism and cybercrime in the 2000s, antitrust agencies stepped up where Congress failed repeatedly to pass a cybersecurity bill. Their actions were surprising both in content and method. Substantively, the policy the FTC and DOJ promoted was to encourage plausibly anticompetitive joint ventures to proceed, so long as these collaborations existed for cyber safety purposes. The administrative agencies pursued this policy not via either formal or informal rulemaking, but rather a network of non-binding guidance known as “soft law.” This technique structured industry incentives such that joint ventures would continue developing cyber defense mechanisms to protect the entire country. This analysis forces questions about ongoing debates within antitrust law and theories of agency activity. The Article also muses on why decentralized regulation, typically a polarizing subject, is so universally favored for cyber governance.