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Foreward: 2024 Ira C. Rothgerber JR. Conference: Artificial Intelligence and the Constitution
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Anchoring Digital Sovereignty
Full text linkFor a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet\u27s infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world\u27s democracies to keep the Internet free, open, and global; yet it is not the only way that international law knows to define the powers of a state.
Drawing from the law of the sea, this Article argues that we should anchor the nature of state authority in cyberspace in the limited sovereign rights that coastal states possess in the waters off their shores. Unlike the plenary powers that sovereignty vests in states over their entire land territory, a coastal state\u27s sovereign rights weaken the further one goes out to sea, and they are subject to the rights of other states (and of their nationals) to engage in certain peaceful uses of such waters. By redefining state authority over cyberspace in terms of layers of sovereign rights that are subject to the digital rights of others, states can enact legitimate online regulations within international legal constraints that preserve the Internet’s free, open, and global character
Ghosting the Crowd
Full text linkCrowdfunded companies are legally bound to provide investors with an annual report--but most don\u27t. This ghosting of the crowd violates federal securities laws and raises the risk of opportunism by entrepreneurs, who are more prone to misbehave if no one is watching. Most ominously, it threatens the very viability of the investment crowdfunding market, as investors who are ghosted by one company are less likely to invest in another.
This Article reports on the embarrassing record of noncompliance with the annual report rule imposed by the Jumpstart Our Business Startups ( JOBS ) Act of 2012 and Regulation Crowdfunding, and proposes a simple solution: Crowdfunding platforms should withhold one percent of the capital raised by an issuer and only release it once the company files its first annual report. Due to competitive pressure, however, any given crowdfunding platform is unlikely to impose such a rule on its own; Securities and Exchange Commission ( SEC ) action is needed. This Article accordingly concludes with a proposed regulation readymade for the SEC to adopt
Unwritten Administrative Law and the Regulatory Last Mile
No full textPrograms like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act are ostensibly federal. But once they change hands from national to subnational, they’re implemented through state statutes and regulations, not direct enforcement of the United States Code. As a result, state, not federal, administrative law governs in many bread-and-butter situations. Through a comprehensive fifty-state survey, I find that this body of law is largely unwritten.
Yet cooperative federalism relies on the capacity of state institutions to function. And equally critical is the existence of law that shepherds a program from congressional subcommittee to the very ends—the last mile—of state implementation. Throughout the country, however, questions of when an agency can make policy through adjudication, what counts as guidance versus a rule, which standard governs the revocation of a rule as compared to initial promulgation, and what, if any, restrictions there are when an agency refuses to promulgate a rule, have often gone unanswered by state supreme courts and state legislatures. To compound matters, states rarely publish anything other than formal regulations.
The consequence is that the last mile of cooperative federalism—the part that decides who receives a permit, when and if enforcement actions are taken, and where agencies make policy—is radically underspecified. In other words, because federal statutes are implemented through state law, federal law is unwritten, too. Untangling and identifying these patterns demonstrates that both the virtues of administration, such as notice and reason-giving, and the benefits of federalism, like participation and experimentation, are diminished when national programs are executed through undeveloped state law
