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Space Enterprises as International Lawmakers: Nudges, Pledges, and Other Bottom-Up Modalities
Full text linkPrivate entities are influencing the development of international space law. Space enterprises need regulatory certainty and consistent standards to attract capital and develop their plans for space. Yet, states have lagged in their capacity to make multilateral international space law in traditional public fora. Private entities have responded to this legal lag by attempting to create, develop, and nudge international space law in commerce-friendly ways. This chapter surveys a variety of modalities by which commercial actors can affect the development of international law, offers several examples of how commercial lawmaking effort
Beyond Digital Pessimism: How a Focus on Trust Can Enhance EU Digital Law
Full text linkLawmakers looking to foster technological innovation on the European market are adopting laws they hope will promote consumer trust in digital products. Their strategy can be broken down into three components. First, they aim to empower consumers to choose how much data they want to share with companies through an express consent framework. Second, they seek to avoid harms from digital products through product safety law such as adapting the Product Safety Regulation to digital products or adopting the AI Act. Third, they endeavor to prevent manipulation of consumers through digital means.
In this essay, we argue that while laudable, these efforts fall short of reaching their goal. For instance, the express consent framework does not offer real choice to consumers, and the EU’s approach to preventing manipulation has a counterproductive focus on consumers as rational agents. More broadly, we contend that avoiding negative outcomes is not enough to build trust with consumers. Building trust requires creating shared positive experiences between digital companies and product users.
To promote trust in digital products, we propose the EU should adopt a principle-based approach. More specifically, we suggest four principles should be incorporated into EU digital law. The principle of confidentiality should be operationalized as discretion, or the quality of behaving or speaking in such a way as to avoid causing offense or revealing private information. Transparency should be replaced with honesty, which would empower consumers to make real choices instead of consenting to hundreds of pages of user agreement without being truly informed. Security should become protection, incorporating a broader duty to safeguard the interests of those who share their data or use AI systems. Finally, there should be a duty of loyalty, which would require that companies prioritize consumers’ interests over their own
Data Rights for Workers
No full textWorkers are subject to immense amounts of data collection on the job, and the algorithmic management tools built with that data can produce negative effects, including deskilling jobs, unstable work hours, reduced wages, and dangerous and degrading working conditions. Workers thus have significant interests how their data are collected and used, and yet they have been excluded from nearly all the recently enacted or proposed data protection laws. Their exclusion stems from data protection’s roots in privacy law and theory, which primarily focused on consumers as data subjects. Current data protection laws, even if expanded to cover workers, would provide little protection because those laws are framed by an individual consumer model of privacy that does not account for the distinctive ways workers are vulnerable to firms’ data practices. Traditional labor law protections are also insufficient to protect their rights because they fail to address a central cause of workers’ disempowerment today—the largely unrestrained collection and exploitation of their data by firms. Protecting workers’ rights will require legally recognizing their collective interests in data and providing robust channels for worker participation in decisions about how data-driven technologies are deployed. Empowering collective worker voice over data practices is essential to ensure that the gains from these technologies will be widely shared rather than just enriching a few
Privatising International (Organizations) Law
No full textThis essay explores the increasing role of private commercial actors within international organizations (IOs) and the implications for international law. Once conceived as state-centred institutions, IOs now routinely involve corporations, trade associations, and philanthropic foundations in lawmaking, policy-setting, financing, and implementation. These actors participate through multiple channels: as observers, delegates, stakeholders, funders, and partners. While private involvement has historical precedents, its contemporary scale and formalization mark a significant transformation in global governance. International law, however, offers little guidance on the boundary between public and private authority, leaving legitimacy concerns unresolved. To evaluate privatization, the article identifies two competing logics: a logic of representation, which grounds legitimacy in accountability and democratic participation, and a logic of production, which emphasizes outcomes, problem-solving capacity, and effectiveness. The challenge for international law is to hold these logics in tension by developing theories, rules, and categories that respond to conditions of hybridity in international organizations and shifts in the larger legal order
The Limits of Punishment
Full text link“Punishment” is an all-important category in criminal legal thought. Conventional scholarship adopts a narrow definition and focuses on justifying penal sanctions. Much critical work, in contrast, seeks to expand the category—defining more practices and institutions as “punishment.” In this Article, I argue that the focus on purposes of punishment and on what constitutes punishment distracts from a larger theoretical and practical issue—much of what the criminal system does probably isn’t punishment as such. Certainly, a carceral sentence is punishment. But what about a curfew requirement for a defendant awaiting trial? What about a restriction on gun ownership post conviction? What about a traffic stop? Each of these restrictions on liberty or interactions with the criminal system might be stigmatizing or cause great hardships. So, it might be tempting to categorize them as “punishment.” While I am skeptical of conventional formalist definitions of “punishment,” I argue that striving to define more acts or institutions as “punishment” actually doesn’t accomplish much—as a doctrinal matter, judges are reluctant to afford defendants increased substantive or procedural rights in this realm. As a theoretical and even rhetorical matter, the punishment frame undersells the nature and scale of the carceral state. I argue instead that it might be more helpful to focus on “criminal justice” as a form of governance—a constellation of institutions and approaches that sometimes punish, sometimes deliver services, and sometimes do social control. Sometimes these institutions perform all three functions (and more), and that’s a major problem with the U.S. criminal system
Data Rights for Workers
Full text linkWorkers are subject to immense amounts of data collection on the job, and the algorithmic management tools built with that data can produce negative effects, including deskilling jobs, unstable work hours, reduced wages, and dangerous and degrading working conditions. Workers thus have significant interests how their data are collected and used, and yet they have been excluded from nearly all the recently enacted or proposed data protection laws. Their exclusion stems from data protection’s roots in privacy law and theory, which primarily focused on consumers as data subjects. Current data protection laws, even if expanded to cover workers, would provide little protection because those laws are framed by an individual consumer model of privacy that does not account for the distinctive ways workers are vulnerable to firms’ data practices. Traditional labor law protections are also insufficient to protect their rights because they fail to address a central cause of workers’ disempowerment today—the largely unrestrained collection and exploitation of their data by firms. Protecting workers’ rights will require legally recognizing their collective interests in data and providing robust channels for worker participation in decisions about how data-driven technologies are deployed. Empowering collective worker voice over data practices is essential to ensure that the gains from these technologies will be widely shared rather than just enriching a few
Taking Legality Seriously: What the Major Questions Doctrine Is — And Isn\u27t
No full textThe Major Questions Doctrine (MQD), a controversial recent innovation of the Roberts Court that applies stricter scrutiny to “major” actions taken by federal agencies, has faced criticism for being atextual, unprincipled, and nakedly ideological. But this critique misses the fact that the doctrine has near-exact analogues in many other legal systems, where it is an established tool for reining in executive overreach. This Article argues that, while the MQD reflects valid rule-of-law concerns, as applied, it lacks theoretical clarity, consistency and limits. More importantly, the Court itself lacks a theory of what the MQD is. We provide an answer grounded in a theory of legality, and propose a revised doctrinal test for its application. As this Article shows, across legal systems, judicial “majorness” tests are rooted in the principle of legality, which requires that all government action be traced back to a legal authority. In an American administrative law context “legality” has mainly been the concern of those who want to dismantle the regulatory state. Our approach is different. At the core of our theory is the idea that legality is a principle, not a binary, and therefore that a test of majorness can, and ought to, not only hold government to the rule of law, but also allow it to function efficiently. We thus propose a revised test for MQD review: First, we clarify what should qualify as a “major” action, as opposed to routine matters or total delegations. We then argue that “majorness” can take two distinct forms: (1) actions that pose a risk to fundamental rights or the political process, and (2) actions that are exceptionally large in scale or significance but do not carry such risks. Each type, we contend, warrants a different judicial response depending on the clarity or ambiguity of the statutory delegation. We apply our test to a pair of case studies—the student loan debt relief case and a hypothetical executive program banning abortion pills under the Comstock Act—to illustrate its purchase.Legality is about the line between legislation and execution, a line that is fuzzy at best, but one which, we believe, can and should be enforced by judges. This Article offers two novel contributions. First, we provide a better understanding of the MQD, offering both a critique and a constructive path forward. Second, we advance a theory of legality that better grounds executive power in the rule of law, while suggesting how judicial review can place principled limits on its exercise. In the unfolding Trump era and the post-Loper Bright world, both are significant
Abolishing the Family
No full textFamily law scholarship is replete with calls for reform. Yet gender-, race-, and class-based inequalities within and across families remain intractable. So what if, instead of reforming the family, we abolish it?Abolishing the family might sound like a startling idea for a family-law analysis, especially after decades of efforts to expand the legal understanding of “family.” But the proposal is hardly new. In this Article, we lay the groundwork for integrating family abolitionist ideas, which have until now mostly taken place outside of law, into family law scholarship.While family abolition is in many ways a radical departure from current family law reform projects and scholarship, we show that abolitionist thinking is not wholly unprecedented even in these settings. Our analysis provides a taxonomy synthesizing legal and non-legal critiques that strike at core features of the family. In particular, we identify five theoretical models that we discover in the existing literature and that we argue provide different paths towards family abolition. They are: the direct compensation model, the communal care model, the friendship model, the disaggregation model, and the statist model. Each model envisions a world in which law does not maintain the family’s narrowly defined status as a distinctive entity meriting special rules. We end by operationalizing these models and consider how each might respond to the various family law problems that we set out, all of which focus on care—who performs it, who receives it, and how it is valued.Engaging in an abolitionist, as opposed to reformist, project provides a way to address problems in family law that have proven intransigent and reveals why reforms have been so difficult to implement. To be clear, we are not advocating for any particular path to accomplish family abolition. Instead, we are dismantling the veneer of inevitability and appeals to nature that couch discussions of both the family and family law. Ultimately, this Article seeks to expand conversations about family law to include family abolition and, in turn, conversations about family abolition to include family law
Teaching Constitutional Law: Politics, Democracy and History
No full textTeaching Constitutional Law in the present era presents unique pedagogical challenges. My students arrive skeptical of the field, doubtful of the Supreme Court’s authority, questioning the relevance of legal methods in determining case outcomes, and perceiving constitutional adjudication as irreducibly political. Rather than dismiss these concerns, I argue that constitutional law professors must acknowledge them directly. Our task is not to restore naïve faith in judicial neutrality (an impossible ideal), but to present students with a vision of constitutional meaning-making—one grounded in politics, history, and democratic politics—in which they can recognize themselves as engaged participants in the future of our constitutional democracy