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Artificial Intelligence and Trade
Get PDFArtificial Intelligence is already powering trade today. It is crossing borders, learning, making decisions, and operating cyber-physical systems. It underlies many of the services that are offered today – from customer service chatbots to customer relations software to business processes. The chapter considers AI regulation from the perspective of international trade law. It argues that foreign AI should be regulated by governments – indeed that AI must be ‘locally responsible’. The chapter refutes arguments that trade law should not apply to AI and shows how the WTO agreements might apply to AI using two hypothetical cases . The analysis reveals how the WTO agreements leave room for governments to insist on locally responsible AI, while at the same time promoting international trade powered by AI
Vertical Mergers in a Model of Upstream Monopoly and Incomplete Information
Get PDFWe examine the role of private information on the impact of vertical mergers. A vertical merger can improve the information that is available to an upstream monopolist because, after the merger, the monopolist can observe the cost of its downstream merger partner. In the pre-merger world, because the costs of the downstream firms are private information, the monopolist has incomplete information and cannot implement the monopoly outcome: The expected pre-merger equilibrium price of the downstream product is lower than the monopoly price. After a vertical merger, the equilibrium input price that is charged to the downstream rival can either increase or decrease -- depending on whether the downstream merger partner’s cost is low or high, respectively. However, in all cases the equilibrium price of the downstream product increases to the monopoly price. Therefore, the merger leads to consumer harm even when it leads to a reduction in the input price. The merged firm, however, cannot extract all of the monopoly profit: The merger causes production inefficiency (when the downstream rival has a relatively small cost advantage) and the downstream rival still earns an information rent (when it has a relatively large cost advantage). These results also have implications for vertical merger policy
Going Global, Acting Local: How an International Pandemic Convention Can Support Regional and Community Response
Get PDFA WHO pandemic convention could set in place an overarching framework needed for strengthening global health security. As the World Health Assembly (WHA) debated the merits of such an agreement, a critically important regional instrument – the Treaty for the Establishment of the African Medicines Agency (AMA Treaty) – entered into force on 5 November 2021. The new agency will, among other things, ensure there is a “common framework” for addressing “emerging issues and pandemics in the event of a public health emergency on the continent with cross border or regional implications.”
An improved worldwide health security strategy is essential but global mechanisms should complement without undermining effective regional, national, and sub-national approaches. Consequently, WHA decision-makers should carefully consider the scope of a potential global convention and make deliberate choices as to the content that requires truly worldwide coordination while incorporating and enhancing fit for purpose regional, national, and local strategies
From Lex Informatica to the Control Revolution
Get PDFLegal scholarship on the encounter between networked digital technologies and law has focused principally on how legal and policy processes should respond to new technological developments and has spent much less time considering what that encounter might signify for the shape of legal institutions themselves. This essay focuses on the latter question. Within fields like technology studies, labor history, and economic sociology, there is a well-developed tradition of studying the ways that new information technologies and the “control revolution” they enabled—in brief, a quantum leap in the capacity for highly granular oversight and management—have elicited long-term, enduring changes in the structure and operation of economic organizations. I begin by considering some lessons of work in that tradition for law understood as a set of organizations constituted for the purpose of governance. Next, I turn the lens inward, offering some observations about techlaw scholarship that are essentially therapeutic. The disruptions of organizational change have affected scholars who teach, think, and write about techlaw in ways more profound than are commonly acknowledged and discussed. It seems fitting, in a symposium dedicated to Joel Reidenberg’s life and work, to use the process of grief as a device for exploring the arc of techlaw scholarship over its first quarter century. The fit is surprisingly good and the takeaways relatively clear: If, as I intend to suggest, the organizational forms that underpin our familiar legal institutions have been in the process of evolving out from under us, we still have choices to make about how legal institutions optimized for the information economy will be constituted. Finally, I identify two sets of important considerations that should inform the processes of organizational and institutional redesign
\u3cem\u3eBivens\u3c/em\u3e and the \u3cem\u3eAncien Régime\u3c/em\u3e
No full textIn its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court derided Bivens as the product of an “‘ancien regime,’ ... [in which] the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose.” This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. It first describes and assesses the Court’s reasons for shifting to the nouveau régime in the statutory context. The Essay then explains why the Court’s shift to a nouveau régime for implying damage remedies under federal statutes does not justify a similar shift with respect to constitutional remedies. The Constitution’s omission of specific remedies for violation of the Constitution’s substantive provisions does not reflect the Founders’ belief that such remedies are unnecessary to give efficacy to those provisions, or that those provisions should be of only limited efficacy. The Constitution was adopted against the background of an ongoing system of common-law remedies, and the Founders understood that such remedies would be available to victims of constitutional violations. This ancien régime of common-law remedies for constitutional violations retains considerable relevance to the current status and scope of Bivens remedies.
For most of our history, these remedies were regarded as neither federal law nor state law; they were understood to be part of the general common law. When the Supreme Court in Erie Railroad v. Tompkins eliminated this in-between category of law, the courts without discussion came to regard the common-law remedies as state-law remedies and, in Bivens, the Court recognized a supplemental federal remedy. Congress subsequently preempted state-law remedies against federal officials, preserving only the Bivens remedy. The Court, in turn, has been chipping away at Bivens on the ground that it constitutes improper judicial lawmaking. These developments risk leaving us with a remedial regime far narrower than that which had prevailed for most of our history. This Essay argues that the federal damage remedy recognized in Bivens could have been framed—and should now be understood—as the post-Erie manifestation of the general common-law remedial regime that prevailed since the Founding. The existence of these remedies, as supplemented by Bivens, has until now obviated substantial constitutional questions about the remedies necessary to give efficacy to the constitutional obligations of federal officials. Any further narrowing of Bivens would require the Court to confront these long-dormant questions
The Case for \u3ci\u3eChevron\u3c/i\u3e Deference to Immigration Adjudications
Get PDFChevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower—to show that “this case against Chevron has * * * its greatest force when it comes to immigration.”
The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general and specific delegations of authority to the Attorney General, the expertise of the agency which has honed its interpretive enterprise through adjudicating tens of thousands of cases annually, and the ultimate political accountability of the agency head in immigration adjudication. For these reasons, the Supreme Court has applied Chevron deference to immigration adjudications since the very foundation of that framework. Although they advance an interesting contrarian thesis, the Professors ultimately provide no sound basis for retreating from four decades of established jurisprudence
Could Private Legislation Be the First Key to Unlocking the Nation’s Information Resources in the Battle Against Misinformation?
Get PDFUnfiltered, unverified information flows freely on the web and is much more easily found and used than reliable sources. There are logical reasons for this, as quality, reliable information often costs both time and money to investigate, verify, and publish. However, that type of investment only justifies the charging for the information at the outset, not the cabining of it once it is available and has been purchased. Where public libraries have acquired content, they should be allowed to maximize its use in society within the bounds of copyright. Such use is within the spirit of copyright and its hope for an informed citizenry and more equal access to information. Private legislation coupled with library collaboration on multiplying access points could make quality information available to the public in a quantity and manner that could help fight the war on misinformation
The Supreme Court, the Texas Abortion Law (SB8), and the Beginning of the End of \u3cem\u3eRoe v Wade\u3c/em\u3e?
Get PDFThirteen states have enacted so-called “fetal heartbeat” laws banning abortions once embryotic cardiac activity can be detected. Courts have enjoined their enforcement as unconstitutional. However, on September 1, 2021, the Supreme Court declined to block a Texas fetal heartbeat law, which virtually eliminates access to abortion services. Texas Governor Greg Abbott signed SB8 into law on May 19th, with an effective date of September 1st. The law essentially prohibits abortion after 6 weeks of gestational age, before most women know they are pregnant.
Texas’ fetal heartbeat law has a unique feature. It empowers private individuals to bring civil lawsuits not just against physicians but also against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” regardless of whether the person knew the abortion was unlawful. It includes “reimbursing the costs of an abortion through insurance.” The language is so broad that it could cover a friend, clergyman, or even a driver who counsels a woman or transports her to an abortion clinic. SB8 goes further, imposing liability if the person even “intends to engage in the conduct.” Any citizen may bring a civil lawsuit and, if successful, violators are required to pay damages of $10,000 or more for each abortion, along with costs and attorney’s fees. SB8 therefore leaves the law’s enforcement not to state officials, but to private individuals, who are rewarded with damages
From Liability Shields to Democratic Theory: What We Need from Tort Theory Now
Get PDFAmong possible legal responses to a pandemic, quashing tort liability might seem startling. Common sense indicates that a deadly and debilitating disease would call for possible tort liability, to enable recovery for losses by those subjected to the disease because of others’ carelessness while also discouraging careless conduct that could lead to preventable cases illness in the first place. Yet, when faced with SARS-CoV-2 and COVID-19, the life-threatening disease caused by the virus, the first response of many American lawmakers was to enact, or attempt to enact, COVID-19 “liability shield” statutes. These laws introduced doctrine to eliminate or narrow grounds for tort claims against those who caused others to contract COVID-19.
As it turns out, the COVID-19 liability shields have an extensive pedigree in the American law of torts. In this article, I review the steady introduction of what I call “eliminative” tort doctrines, especially the wave of them dating back to the 1970s. Individually and together, these doctrines sharply reduce the grounds for personal injury claims, burden the injured’s ability to prevail in permitted claims, and restrict the recovery available even when such claims succeed. Eliminative tort doctrines appear in both federal and state law and apply in a variety of factual circumstances. I maintain that existing eliminative tort doctrines facilitated the rapid promulgation of intricate, detailed COVID-19 liability shield statutes.
A fifty-year surge in eliminative doctrines is a distinctive development. It calls for explanation and interpretation. In this article, I introduce a tort theory that centers eliminative tort doctrines, rather than dismiss them as aberrations or passing political fads. I title the theory “tort deflationism.” It is deflationary because it treats tort law as a field that should be modest in the legal liability it creates and the extent of the liability it allows. I argue that tort deflationism is latent in the post-1960s eliminative tort doctrines and their relationship to modern American conservatism, a broad social, intellectual, and political movement that arose after World War II and continues to the present day.
I myself do not endorse tort deflationism. I have chosen to articulate it in this article in order to explore its explanatory power, evaluative force, implications for alternative tort theories, and potential significance for democratic theory and practice. Tort deflationism deserves serious attention, if for no other reason than to clarify grounds for objecting to it or to criticize its conception of the law of personal injury.
The article examines the COVID-19 liability shields and their predecessors so as to identify the features that any theory geared to them must illuminate. It then spells out the mid-level principles central to tort deflationism and develops a full-blown theoretical synthesis of these principles by showing their ties to the intellectual and ethical commitments of modern American conservatism. Next, the article canvases how tort deflationism can make sense of developments in American tort law other than the post-1960s surge in eliminative tort doctrines, using as an example the law of workplace injury. Then, it covers how tort deflationism compares to other tort theories, showing how it serves as a useful foil. Finally, the article considers how tort deflationism relates to ongoing debates about the legitimacy of law in pluralist democracies
False Advertising Law and New Private Law
Get PDFThis chapter, which will appear in the Oxford Handbook of New Private Law, examines the extent to which US false advertising law can be viewed as part of the private law. Its working hypothesis is that that although it can be helpful to distinguish private from public law, there is not a sharp border between the two regions. Laws that fall on the private side of the divide can be designed in light of purposes and principles commonly associated with public law, and vice versa. False advertising law provides an example. Despite the fact that it is commonly classified as public law, one can find in it structures, functions, and values commonly associated with private law.
The structural features include horizontal duties, transfer remedies, private enforcement, and judge-made rules. False advertising law is unusual in that, viewed through a private law lens, it imposes on advertisers one duty owed to two distinct categories of persons. The duty not to engage in deceptive advertising is owed both to consumers, who might be deceived by an advertisement, and to honest competitors, who might lose sales as a result of consumer deception. And the duties it imposes on advertisers differ from analogous or ancestral common law torts. Rather than a duty not to lie or utter falsehoods, advertisers have a responsibility to consumers not to cause them false beliefs. Rather than a duty not to disparage another business or its products, advertisers have a duty to competitors to play by the rules of the marketplace. That said, advertisers’ obligations to consumers and to competitors can both be understood in ethical terms familiar to the private law.
This is not to deny the differences from other areas of private law. US false advertising law lives in statutes and regulations; it is enforced by federal agencies and state attorneys general; and its rules can seem designed more to promote consumer welfare and market efficiency than to enforce interpersonal obligations or compensate for wrongful losses. And there are practical impediments to consumer lawsuits, consumer oriented remedies, and adjudicative resolution of false advertising claims. But false advertising law shows its private law roots, even if its branches extend beyond them