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Adjudicating Fake News
Full text linkOn July 30, 2025, President Trump imposed 50% tariffs on imports from Brazil and sanctioned a sitting Brazilian Supreme Court Justice, both partially because of Brazil’s online content moderation decisions. This is an extreme, but not an isolated event: worldwide, legislators and regulators struggle to craft public policies that address problems of disinformation and online harassment while protecting the freedom of expression—leading to increasing international confrontations. One key question in content moderation is content adjudication—or who is responsible for deciding what type of speech violates the law and should be taken down. This article presents the results of a six-year, large empirical and qualitative project on the adjudication of fake news disputes by Brazilian Courts from 2018 onwards. It examines what led Brazilian judges to order the takedown of online content, which social networks and types of content were most affected by judicial decisions, and whether there is evidence that incumbent politicians abused the system, among other factors. It also critically analyzes the evolution of this novel court-driven content moderation regime—one in which Courts play an increasingly active role in policing online discourse—with significant implications for the Brazilian information ecosystem, democratic institutions, and judicial reputation. Ultimately, the Brazilian experience teaches/reinforces five lessons to jurisdictions rethinking their online content moderation regulatory regimes: (i) content moderation systems must articulate clear end goals to work properly; (ii) experimentation in content moderation regulation is possible and desirable, allowing for incremental learning and adaptation; (iii) a content moderation system must have strict protection against the slippery slope that may lead it to censorship and arbitrariness; (iv) content-based moderation systems become part of the information environment—claims about neutrality in adjudication cannot, by themselves, support long-term systemic legitimacy; (v) increasing regulatory fragmentation impose new urgency on the development of international guidelines for limits on the extraterritoriality of online decisions
Duality in Contract and Tort
Full text linkWe study situations in which a single investment serves the dual role of increasing the expected value of a contract (a reliance investment) and reducing the expected harm of a post-performance accident (a care investment). We show that failing to account for the duality of the investment leads to inefficient damages for breach of contract and inefficient standards for due care in tort. Conversely, we show that accounting for the duality yields contract damage measures and tort liability rules that provide correct incentives for efficient breach and reliance in contract and for efficient care in tort
The Fiduciary Code of Capital and Climate Change
Full text linkFiduciary law is part of the “code” for the management of capital, as Katharina Pistor has conceptualized law. Climate activists, attorneys, investors, and international organisations have turned to fiduciary law for legal solutions to the ongoing problem of inadequate corporate and state action in response to climate change. Our thesis is that the turn to fiduciary law by norm entrepreneurs is an attempt to encode a concern for climate change within the management of capital. We make two contributions to the literature on private law and climate change. First, we rigorously identify the features of fiduciary law that make it a vehicle for targeting the relatively small number of “superagents” (states, state-owned enterprises, and transnational private firms) that are primarily responsible for climate change. Second, we identify the barriers to successful use of fiduciary law to encode climate risks into the management of capital, which we call the sword and shield problem, the legitimacy trap, and the interface problem. To test our theory, we contrast developments in the U.S. and EU and in so doing shed light on debates about Environmental, Social, and Governance (ESG) initiatives, corporate responsibility, and state responses to climate advocacy
Law Librarians as Content Preservers and Mediators for Modern Legal Researchers
Full text linkEven though libraries have existed for thousands of years, one must wonder what role law libraries play and, more importantly, what roles law librarians play in supporting students, faculty, lawyers, and judges with so much information now available online? What value do law librarians add for today’s legal researchers?
At their core, law librarians continue to strive to perform two major functions: (1) “select, organize, and preserve legal information” and (2) help lawyers, judges, students, and faculty locate and use that information. This article hopes to explain just why it is important that law librarians continue to serve in these roles and how they are serving these roles for students, faculty, lawyers, and judges
The Moving Pieces of Corporate Disclosure: Truth, Falsity, and Half-truths in Between
Full text linkThe half-truth doctrine is made operational in the common statutory and rule-based admonitions in the securities laws (particularly Rule 10b-5) not to omit “material fact[s] necessary in order to make . . . statements made . . . not misleading . . . .” It cabins the temptation to exploit the privilege of nondisclosure through what has been called “artful paltering.” Unfortunately, the evolution of the half-truth doctrine has become more of a poor stepsister than a muscular companion. It carries less than a full load in the complex ecosystem that exists for public company disclosure today. And it is woefully undertheorized and widely misunderstood. To this end, this article traces duty as it has developed so haphazardly in the Supreme Court, showing how the Court may have missed opportunities to do better. Our attention will mainly be devoted to a recent 2024 case (Macquarie), which is bookended by the Court’s initial effort to describe the doctrine as it applies to statements of opinion (Omnicare) and its ill-fated effort to address the temporal dynamics of risk disclosure (Facebook)
The National Security Internet
Full text linkIn response to widespread foreign surveillance and growing geopolitical distrust, governments are erecting a national security internet. Pioneered by China, national firewalls have gone global. But where firewalls sought to keep information out, they now seek to keep data in. Governments keen to avoid their citizens’ data from falling into foreign hands demand not only that personal data be stored on local servers, but also require that it be stored on local servers by local companies—what this Article calls “data localization squared.” Enforcing this demand requires a new mechanism of transnational control: immunity from foreign jurisdiction—a concept previously unexplored in legal scholarship. AI systems, too, now need licenses for export. We are witnessing the creation of Digital Berlin Walls, complete with Checkpoint Charlies to permit border crossings.
The ascent of digital border controls in the name of national security treats a domain of speech and commerce according to the rules of war. This Article traces this turn through six case studies: TikTok, the U.S. “rip and replace” program, the Chinese “Delete America” program, Microsoft 365, connected cars, and AI models. The TikTok saga is but the visible edge of a broad reconfiguration of international economic relations largely occurring through obscure administrative processes. Existing scholarship has recognized various aspects of this national security turn; this article weaves together regulatory moves from TikTok to cars, from China to the United States, to identify a paradigm shift in digital regulation.
The Article argues that the national security internet will come at a steep price, disrupting trade and investment, reducing competition, inviting retaliation, increasing government control over speech, and undermining efforts to stem climate change and promote development, while offering easily circumvented protection against foreign surveillance. The Article offers a typology of corporate strategies to satisfy national security demands and assesses their shortcomings. The Article proposes reforms that constrain foreign surveillance in order to protect both civil rights and national security
The Administrative State\u27s Second Face
Full text linkWe often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.
This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that governs it. While first-face administrative law demands delegated authority, transparent justification, and democratic collaboration, second-face administrative law allows agencies to operate without specific grants of power, to process knowledge in secret, and to control populations. Second-face administrative law inverts the ordinary norms of first-face administrative law. And where the first face drives legal and political conflict, the second face enjoys consensus.
Bringing the second face into view qualifies talk of an ongoing “attack” on the administrative state. It calls attention to neglected issues of enforcement, allows us to analyze how administrative law supports an interrelated set of violent state structures, and reveals that consensus support for second-face agencies is misguided. Those who seek to combat government overreach and to protect liberty and popular self-governance should turn their attention to the administrative state’s second face
Digital Regulation and Development: A Global Micro and Macro Comparison
Full text linkRegulation of the digital economy is receiving increased attention both domestically and internationally, but too little scholarship exists assessing the degree to which these new rules effectively support economic, social, and sustainable development. This Article advances a micro-macro framework for assessing digital regulation and its development dimension, including digital inclusion and measures to address the digital divide, the protection of human rights, and the operationalization of the United Nations’ Sustainable Development Goals. In doing so, it incorporates a “micro international law” methodology to compare domestic legal design features and trace their diffusion into regional trade agreements and, in turn, into soft law and multilateral instruments. Domestic law has been an important driver of legal change in areas like data privacy, human rights, digital infrastructure, and access to finance. In many cases, domestic law has influenced rules at a regional level, highlighting how micro approaches can flow upward to influence more macro-level rules. Trade agreements increasingly integrate new approaches in development-focused digital regulation as well, including the recent trend to include provisions on digital inclusion, such as those that appear in the Digital Economy Partnership Agreement, the New Zealand-United Kingdom Free Trade Agreement, and Digital Trade Protocol to the African Continental Free Trade Area Agreement, among other instruments. Across these emerging trends, some promising variation in bottom-up legal diffusion is apparent, suggesting that legal innovations may stem from a range of national sources. However, both domestic law and trade agreements contain notable gaps in linking digital rules to social and sustainable development. These include insufficient data privacy protection, incomplete approaches to artificial intelligence, and piecemeal focus on digital infrastructure and the digital divide. Sustainability in the digital realm is an even more amorphous concept, and current national and regional rules largely overlook both environmental and social gains and losses resulting from increased digital activity. This Article explores domestic, regional, and international digital rules in the context of economic, social, and sustainable development, highlighting innovations in domestic law and trade agreements, along with alternative “micro” interventions, for future study and scaling
Preface: The Field of International Economic Law
Full text linkThis is the preface to our forthcoming book Advanced Introduction to International Economic Law for Edward Elgar Publishing. The book is unique in multiple ways. It is the first book that addresses the breadth of international economic law thematically, instead of serially by sub-field of law. We examine the history of key sub-fields, their contested functions, and the ways that they disparately address issues of liberalization and market access, discrimination, state regulatory policy space, fairness, governance and dispute resolution. Unlike law and economic accounts, we do not naturalize the “functions” of international economic law. Rather, we note how different actors and commentators specify core functions to advance their goals and interests. While this book notes US and European perspectives given their power and traditionally predominant roles, it also provides examples and addresses topics of relevance to other countries and regions in a rapidly changing world
Legal Issues and Outcomes of a Medical-Legal Partnership for Cancer Patients
Full text linkThe medical-legal partnership (MLP) model is a multidisciplinary intervention with demonstrated success in addressing health-harming legal needs. We analyzed initial data from the Georgetown University Health Justice Alliance’s Cancer Legal Assistance and Well-being Project (Cancer LAW), an MLP between Georgetown University and MedStar Health serving cancer patients receiving care at an urban, safety-net hospital in Washington, D.C. The sample included 81 patients, who had an average of two legal issues, most commonly in the areas of Social Security, estate planning, housing, and health insurance. Data collected during legal representation captured both financial and non-financial benefits to patients. Patients who responded to a post-legal services survey reported reduced stress, and nearly 75% of survey respondents reported that legal services helped them maintain their treatment regimen. Further research, including on the impact of legal services on health outcomes, may be helpful in efforts to incorporate legal services as an accepted best practice in cancer care