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Market Design for Personal Data
No full textIt is now generally understood that personal data––that is, data that relate to individual consumers––drive digital markets. Personal data underlie targeted advertising, which draws billions of dollars into ad-supported markets. Personal data are useful for other purposes as well. Firms in digital markets rely on personal data to deliver their core products and services––we refer to these collectively as “web services”1––to hone and improve them, and to recommend related products and services. These data facilitate innovation, allowing yet more services and “smart” products with increasingly personalized functionalities. Personal data can allow governments to deliver better public services, such as transportation systems, or can help researchers better understand how humans interact with algorithms and which policies might best serve society. And data can also facilitate competition, by improving quality and providing insight into consumer conduct that encourages entry. In these various ways, the massive quantity of personal data currently collected undoubtedly contributes to consumer welfare.
But there also are downsides to the collection and use of personal data on such a grand scale. “Surveillance capitalism,” as Professor Shoshana Zuboff has termed it, has blurred the line between the personal and the public, and has commodified our habits, interests, and beliefs in ways that can feel distasteful and invasive. Massive data collection also has made information about us more accessible to government and commercial actors who often face little to no accountability for its misuse
The Intersectional Origins of Modern Feminist Legal Advocacy
No full textVol. 34.2:6Intersectionality, reproductive justice, abolitionism, LGBTQ+ liberation, and democracy defense have moved to the center of twenty-first century feminist legal thought and advocacy, with feminists of color and queer scholars and activists at the forefront. But it wasn’t always so. Or was it
Introduction: The Nature of the Judicial Process at 100
No full textVol. 34-1This special issue of the Yale Journal of Law and the Humanities contains papers presented at a March 2022 conference at Yale Law School marking the centenary of the publication of Benjamin Cardozo’s The Nature of the Judicial Process. (The pandemic foiled our efforts to time these events more precisely.) One of us (Barzun) came up with the idea, and the two of us, together with Daniel Markovits, Benjamin Zipursky, and Konstanze von Schütz, planned the event and this volume. We can think of no more apt publisher for the conference papers than the Yale Journal of Law and Humanities. As a person of letters and science with both pre-modern and modern sensibilities, as someone both of and not of this world, and as a jurist who was unsentimental yet devoted to the cause of human dignity and welfare, Cardozo approached the law first and foremost as a humanist. The papers here collected—which range from the historical to the philosophical to the literary—are offered in the same spirit.
One may ask whether the hundredth anniversary of the publication of Cardozo’s book is an occasion worth marking. Judge Richard Posner observed in his contribution to the centennial issue of the Harvard Law Review that because “a journal has no natural lifespan, the fact that it is 100 years old should interest only people who have a superstitious veneration for round numbers.” A book’s publication date may have an even weaker claim for recognition since it does not even give birth to an institution with a “lifespan” at all, natural or otherwise
The Winding Path Toward Gender Equality and the Advocates and Scholars Who Forged It
No full textVol. 34.2:14At its broadest, “feminist legal thought” describes the effort across generations to secure equality for women through law. The ideas that have emerged from this work can be loosely typed as “equality theories,” and the statutes, constitutional interpretations, and doctrines they inform can be tied together under the heading of “gender law.
CARDOZO AND UNCERTAINTY IN THE COMMON LAW
No full textVol. 34-1Since at least the time of Blackstone, scholars have identified the “uncertainty” of the common law as a problem that is endemic to its functioning. Indeed, to Blackstone the idea was “so generally adopted” that any attempt to “refute it” was likely to result in ridicule. Yet, even to him, the precise source of the uncertainty was something of a mystery, variously attributed to the multiplicity of laws and judicial decisions, the resulting abundance of potentially contradictory rules, and the heightened discretion afforded to judges to declare the law in individual disputes. All the same, to Blackstone, the fault—if any—was not with the common law but with the nature of laws more generally. As he wrote:
It has sometimes been said [that uncertainty] owe[s] its original to the number of our municipal constitutions, and the multitude of our judicial decisions; which occasion, it is alleged, abundance of rules that militate and thwart with each other, as the sentiments or caprice of successive legislatures and judges have happened to vary. . . . People are apt to be angry at the want of simplicity in our laws: they mistake variety for confusion, and complicated cases for contradictory
Contract Remedies for New-Economy Collaborations
No full textProductive activity that once look place within a single firm now occurs when two or more firms collaborate to form an "alliance." The agreements that govern alliances are not typical contracts containing prices and quantities. Rather, they are "framework agreements" that regulate process and specify the parties' tasks-e.g., conduct R&D: explore marketing opportunities: exchange proprietary knowledge: create a dispute-resolution structure: and develop a plan for a successful result. The COVID-19 vaccines provide an example: alliance partners reciprocally exploited their, flexibility and comparative advantages to create the vaccines. The COVID-19 collaborations, however, were unusual because there was both an assured demand for-and great reputational gains from-delivering the product, and public pressure to finish promptly deterred strategic behavior. In the usual case, it is difficult to induce potential parties to commit to a collaboration, to stay with it when doubts about success arise, and to exploit a successful result efficiently. Collaboration breakups at the startup and implementation stages are common. Yet, disappointed parties seldom sue. This Article makes two principal contributions. Our first contribution is to show that lawsuits do not occur for new collaboration breakups because current contract law provides no remedies for a party disappointed by a counterparty's defection. Our second contribution is to develop remedies that would encourage private parties to enter into and to stay with potentially productive collaborations. Thus, our goal is to extend contract law to a significant part of the economy whose deals today the law does not support
Consumer Protection for Online Markets and Large Digital Platforms
No full textConsumer-protection law is vital for ensuring that market-based economies work in the economic interest of consumers as well as businesses, and thus to the benefit of society as a whole. This is well understood.
Caveat emptor—“let the buyer beware”—may have made sense as the default risk allocation between buyer and seller in the village marketplaces of yore, in which transactions were relatively small, and buyers and sellers were likely to know and expect future dealings with each other. These features would naturally encourage traders to comply with community-generated and community-enforced norms of commercial fair dealing.1 In these admittedly idealized markets, sellers who cheated would quickly be found out, and they would face high social and economic costs, in contrast to the social and economic costs sellers face in modern markets, where traders are more likely to be strangers engaged in one-off transactions. The idealized markets of yore also dealt mostly in physical goods, which allowed buyers the opportunity to examine the goods before purchase.
Modern markets, especially online markets, differ from the idealized village marketplace in significant ways. The scope and scale of most contemporary online markets, for example, make it unrealistic to hope that relational obligations or a shared sense of morality could fully counterbalance incentives to cheat
DOMESTIC VIOLENCE AND FUNCTIONAL PARENT DOCTRINES
No full textToday, approximately two-thirds of the states have a functional parent doctrine. Under these doctrines, a court can extend parental rights based on the conduct of forming a parental relationship with a child, regardless of whether the person is the child's biological or adoptive parent. In recent years, these functional parent doctrines have garnered significant attention. Some critics fear that perpetrators of domestic violence will misuse functional parent doctrines to abuse, harass, and coerce their victims. These critics often imagine a paradigmatic case -- one involving a former nonmarital different-sex partner who has a limited relationship with the child and uses the doctrine in a post-dissolution custody action as a way to continue to harass and control his former partner, the child's mother. Drawing upon relevant findings from our empirical study of all electronically available decisions issued in the last forty years applying functional parent doctrines, this Article sheds light on these fears by reporting what we know about allegations of domestic violence in cases decided under these doctrines. Ultimately, our findings reveal that the paradigmatic case that critics envision is quite rare. Former nonmarital differentsex partners constitute only a small share of the functional parent claimants. Instead, the population of claimants is characterized by diversity. Indeed, our study includes more than twice as many relatives -- a group routinely overlooked in conversations about functional parent doctrines -- than different-sex nonmarital partners. Even as allegations of domestic violence are more common in cases involving intimate partners, they are hardly a common feature. Moreover, even the small share of cases that would seem to be of most concern -- those involving allegations of domestic violence against only the functional parent -- rarely present the straightforward facts that structure objections to functional parent doctrines. Rather than finding that functional parent doctrines are routinely used in ways that disrupt children's lives, we find that the doctrines often function to provide stability and security for children. Our account raises questions about opposing functional parent doctrines altogether based on fears that male ex-partners will use the doctrines for abusive ends. Instead, given the important benefits of functional parent doctrines for children, we conclude that concerns about domestic violence, which are indisputably serious and must be taken into consideration, should be addressed within functional parent doctrines, as some states recently have done
Ambivalence, Judicial Craftmanship, and the Development of the Law: Variations on a Theme of Benjamin Cardozo
No full textVol. 34-1In The Nature of the Judicial Process, Cardozo identifies the embrace of uncertainty as a mark of judicial expertise. Such uncertainty, he claims, provides an occasion for the exercise of creative energy and the judicial development of the law. This paper critically examines and extends, in light of contemporary work on the philosophy and psychology of ambivalence, Cardozo’s views about the relevance of uncertainty in judicial decision making and its import for the evolution of the law. First, it provides an account of the benefits of ambivalence in judicial decision-making, with a special focus on the links that there are between ambivalence and judicial creativity. Second, it argues that there is a certain tension between Cardozo’s views on the important role that ambivalence plays in judicial decision-making and his view of law’s evolution as a streamlined, self-correcting, process. Two problems—the problem of hidden alternatives and the problem of unconceived alternatives—and the ever-present possibility of error vividly bring to light the extent to which law’s progress may be hampered. Third, it argues that for judges to recognize and resolve ambivalence in ways that positively contribute to the development of the law, a certain kind of judicial temperament must be developed. This temperament is neither skeptic nor dogmatic, vindicates imagination as a critical capacity for excellence in judging, and fosters a judicial style (and, more broadly, a legal culture) that, in Cardozo’s spirit, frees itself from the quest for certainty