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Algorithms in Business, Merchant-Consumer Interactions, & Regulation
Get PDFThe shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In so doing, algorithms raise new theoretical considerations on information asymmetry and power imbalances in merchant–consumer interactions and multiply existing biases and discrimination or create new ones in society. Against this backdrop of the concentration of algorithmic decision-making in merchants, the traditional understanding of consumer protection is overdue for change, and normative debate about fairness, accountability, and transparency and interpretive considerations for non-discrimination is necessary. The theory that notice and choice in data protection laws and consumer protection laws are sufficient in an algorithmic era is inadequate, and countervailing consumer empowerment is necessary to balance the power between merchants and consumers. While legislative activity and regulation have conceivably increased consumer-empowerment, such measures may provide a limited or unclear response in the face of the transformative nature of algorithms. Instead, policy makers should consider responsible algorithmic code and other proposals as potentially effective responses in the analysis of socio-economic dimensions of algorithms in business
Exacting Inclusion: Property Theory, the Character of Government Action, and Implicit Takings
Get PDFRecent takings cases challenging inclusionary housing ordinances tap into an ongoing controversy about whether government interventions in the housing market do more harm than good; but they also raise much more general questions about takings law. This Article uses the controversy raised by recent housing cases to probe the relationship between the Supreme Court’s regulatory takings jurisprudence and its exaction takings jurisprudence and to suggest a more coherent approach to implicit takings. The Court’s exaction takings jurisprudence is well-designed if it is applied appropriately. As a general matter, it encourages the mitigation of socially harmful nuisances, incentivizes developers to make socially desirable decisions about how to develop their properties, and protects private property from overreaching administrators who might abuse their discretion to usurp surpluses from the owners’ development projects. This Article offers guidelines for determining when the Court’s exaction takings jurisprudence should apply. It also proposes that, in some circumstances, a property owner should be able to make an exaction takings claim and a regulatory takings claim. Finally, it offers a roadmap for analyzing implicit takings claims more coherently. Under that roadmap, whether inclusionary housing programs should be subjected to the nexus and rough proportionality tests depends upon how they are designed
