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The Rise, Fall, and Rise of Cyber Civil Libertarianism
Get PDFUsing sexual speech as its focal point, this essay explores the ambiguous legacy of cyber civil liberties and the ascent of alternative paradigms for digital freedom. From its inception, cyberlaw was characterized by a moral panic over sexual speech, pornography, and the protection of children familiar to First Amendment scholars. Important civil libertarian victories recognized that sexual speech and pornography were constitutionally protected from state intervention. The civil libertarian paradigm saw government regulation as the primary threat to free speech online, the marketplace as the more appropriate mechanism for regulating expression, and courts as the rightful arbiters of these disputes.But while civil libertarians successfully rolled back much regulatory intervention to enforce moral codes online, their successes came at a price: the legitimation of private power over speech. Though the civil libertarian tradition would theoretically protect sexual speech, it has in practice shifted the locus of power over speech from public to private hands. The result is a form of “market” ordering that is nominally private but that, in fact, reflects the entrenched power and influence of conservative cultural politics. In turn, this burgeoning private authority has prompted both political and cultural realignments (the “techlash”) and a broader turning away from the civil libertarian approach to speech. Amid attacks on women’s health, privacy, equality, and autonomy, it is tempting to look to online platforms as guardians of these values and defenders of First Amendment traditions. Yet platforms have been—and continue to be—ambivalent defenders of sexual speech. Today, private speech enforcement is far broader than what the state could accomplish through direct regulation. But in a moment of challenge to sexual freedom and equality, cyber civil libertarianism might—with renewed attention to private power—yet find another foothold
Artificial Intelligence, Copyright Registration, and the Rule of Doubt
Get PDFArtificial intelligence (“AI”) technology has detonated an explosive burst of seemingly creative expression. Stories, images, music, and even entire books are now being generated very quickly. This development is a major headache for copyright registrars because the copyrightability of works created in this way is uncertain. The almost limitless variability in the extent of human involvement in the creation of a work using an AI tool compounds the uncertainty. In some cases, copyrightability is easy to determine, such as where an author only claims rights in the selection and arrangement of AI-generated output rather than the output itself. But in many cases the registrability of a work created with the aid of an AI technology is far from certain. In these situations, the Copyright Office should apply a rule of doubt to allow registration. This solution appears to be a novel idea, at least as a permanent solution to the problems AI has generated. Nevertheless, approaching the problem in this way would protect authors’ rights to any original contributions they make to AI-assisted works, authors’ interests in the privacy of their creative processes, the interests of authors whose works may have been used without their consent to train AI, and the ability of alleged infringers to challenge the existence and scope of claimed copyrights in AI-generated and AI-assisted works. It would also ease the burden on copyright examiners
Careers After Prison: Preventing Recidivism by Reforming Restrictive Licensing Regimes
Get PDFA prisoner leaving confinement in the United States is unlikely to seamlessly reintegrate into society. People leaving incarceration face a cornucopia of economic and social barriers that prevent them from easily finding secure economic footing. The well-established link between unemployment and recidivism materializes when economic circumstances drive the poor and desperate back toward crime and back into prison. This vicious circle not only rips apart families and communities but also imposes a ruinously expensive financial burden on states. Despite this cost, many states continue to bar formerly incarcerated people from their most viable opportunities to become peaceful and productive members of society. This Comment shows how the occupational licensing regimes currently in place in many states act to push people out of the workforce on no rational basis. But an alternative standard based on negligent hiring law could balance the protective and rehabilitative policies of licensing regimes. By doing so, it would allow formerly incarcerated people a shot at lawful independence. Maintenance of an irrational system, though, produces only irrational results
A New Era of Deference: From Chevron to Loper Bright
Get PDFDeference to administrative agencies’ interpretations of ambiguous statutory provisions has been a hallmark of administrative law and regulatory policy for the past forty years. The Supreme Court recently upended that settled allocation of power between agencies and courts, granting interpretive primacy to courts even where statutes essentially require policy choices. However, questions remain about precisely how courts will exercise this policymaking authority that agencies used to exercise, as well as about the multiple “offramps” from this nondeferential standard that the Court left open. Rather than a new era of nondeference, it is just as likely we are embarking on a new era of deference — different in some respects from the regime that preceded it, but still ultimately respectful of agencies’ superior ability to responsibly and legitimately develop policy
Shaping Preferences with Pigouvian Taxes
Get PDFA Pigouvian tax is a tax that is imposed to correct an externality, which arises when a person engages in behavior that harms others without their consent. Pigouvian taxes are popular among academics—with prominent economists and legal scholars arguing for their imposition on myriad goods and activities that harm third parties, like carbon emissions and alcohol. Policymakers have recently been receptive to at least some of these arguments as evidenced by taxes imposed on or proposed for a variety of externality-generating goods, including guns, plastic bags, and sugary drinks.The conventional economic rationale for Pigouvian taxes assumes that they affect behavior by increasing the prices of taxed goods and not by altering people’s underlying preferences for them. For example, a carbon tax reduces driving by making gasoline more expensive, but it otherwise leaves people’s desire to drive unchanged. This conclusion follows from the standard assumption in economics that people’s tastes and preferences are fixed and determined exogenously to public policy.Contrary to standard analysis, I argue that Pigouvian taxes can in fact shape preferences and that policymakers should consider using them for that purpose. A carbon tax, for instance, would not only make driving more expensive, it might also modify preferences such that people develop a taste for alternative modes of transportation—making driving less desirable, even if we ignore the increase in gas prices.I make an original contribution to the literature on Pigouvian taxes by explaining in detail the psychological mechanisms through which these taxes can alter preferences. I also argue that once we relax the assumption of fixed preferences, the already strong case for Pigouvian taxes often becomes even more compelling. Specifically, preference endogeneity means that the loss in consumer utility resulting from Pigouvian taxes will often be smaller than standard analysis suggests. Moreover, malleable preferences dramatically expand the potential scope for Pigouvian taxes and enhance their impact on behavior through a social multiplier effect that can make taxes more effective in achieving public policy goals than scholars have traditionally assumed. I illustrate these points in a variety of policy-relevant contexts, including environmental law, gun control, and public health policy
Affirmative Action’s Asian American Problem
Get PDFAsian American opponents of affirmative action have received both credit and blame for their pivotal role in toppling racial preferences in university admissions in Students for Fair Admissions v. Harvard (SFFA). Allied conservatives highlighted evidence of discrimination against Asian American applicants as a compelling reason to dismantle affirmative action; liberals either denied this discrimination existed or tolerated it as an acceptable cost of helping other minority applicants. But largely unacknowledged is the precipitating history of the Supreme Court’s marginalization of Asian American applicants and its decades of tacit approval of their exclusion from affirmative action programs. This unwritten history is essential to understanding how the Court’s affirmative action decisions from Bakke to Fisher contributed to the eventual demise of racial preferences in admissions. As such, it is a chapter of Asian American and affirmative action history that needs telling.
This intertwined history also illuminates a path for improving diversity on college campuses in a post-affirmative action era: the consideration of volunteered immigration histories in the admissions process. Immigration histories are not limited by race or nationality and offer a more specific, nuanced, and personal window into the incredible diversity within each ethnic group than broad demographic categories. As a case in point, Asian Americans constitute a highly diverse demographic; yet under previous affirmative action programs, their diversity was largely invisibilized as they were lumped together as an overrepresented monolithic minority. Allowing applicants to reflect on their personal or family immigration histories would reveal diversity within other ethnicities as well, while abiding by SFFA’s newly articulated equality principles—equality of opportunity and equality of treatment across races
Intellectual Property, Innovation and Economic Inequality
Get PDFWhile growing disparities in wealth and income are well-documented across the globe, the role of intellectual property rights is often overlooked. This volume brings together leading commentators from around the world to interrogate the interrelationship between intellectual property and economic inequality. Interdisciplinary and globally oriented by design, the book features economists, legal scholars, policy analysts, and other experts. Chapters address the impact of intellectual property rights on economic inequality, the effect of economic inequality on the protection and enforcement of these rights, and the potential use of innovation law and policy to help reduce economic inequality. The volume also tackles timely issues like race and gender disparities and the North-South divide in innovation
Online Disinhibited Contracts
Get PDFThere have been at least two dominant forces at work in the realm of consumer contracting over the past several decades. One has been the rise and domination of the standard form contract (whereby merchants contract with consumers via the use of standardized, boilerplate terms and conditions that consumers do not read or understand). The second force has been the rise of e-commerce and the purchase of goods and services via websites and other online platforms, and the use of “wrap” formation methodology (whereby merchants obtain consumer assent to the online terms and conditions via the consumer’s informal click, scroll, or browse of the merchant’s website through the use of “browsewrap,” “clickwrap,” and similar mechanisms). Moreover, it is apparent that most retail merchants impose numerous favorable terms in their online terms and conditions, but do not impose any terms on their in-person, or “offline,” customers that purchase at their brick-and-mortar locations. Why? This Article utilizes John Suler’s Online Disinhibition Effect to potentially explain this behavior. The Online Disinhibition Effect describes the phenomenon that people are less restrained in what they say and do online than when they are in the face-to-face world. We see this in the way people interact on social media—in messaging each other, and even in email. People are emboldened to act in the online context because the Internet lacks the traditional social checks that constrain in-person social interaction. Although Suler focused his observations on individuals’ social activity online, this Article seeks to use them to partially explain consumers’ and merchants’ contract activity—that is, their ready and uninhibited willingness to enter into, and impose, online terms and conditions. Looking at Suler’s factors such as dissociative anonymity, invisibility, and asynchronicity, the fact that no humans tend to interact or react to one another in the online formation process generally reduces any opportunity for inhibitions to the terms to be imposed. Given that merchants are even less inhibited in imposing robust and favorable terms in the online context than they are in the offline brick-and-mortar context, courts should give particular care when analyzing the fairness of such terms, whether under principles of unconscionability or otherwise
Can They Fix It? YES, They Can: Rebalancing the Scale of Financial Security on Construction Projects
Get PDFThe construction industry is one of the most dominant industries worldwide. The United States is no stranger to development and growth, and as so, it possesses one of the largest construction industries in the world. Given the magnitude of the industry, it is no secret that every party involved in a construction project feels the loom of financial risks and that such risks continue to plague the industry. The government, particularly the legislature, has a special influence in that the laws it passes can either encourage continued development and make the industry flourish or bring it to a complete stop, bringing detrimental loss to all involved. Texas is evidence of this when it deemed construction workers “essential” during the COVID-19 pandemic. While many businesses struggled to stay afloat, the development of projects across the state continued. This Comment explores what it is like to be exposed financially as a lower-tier party on a construction project and the protections that exist in law for them. Specifically, this Comment will dive deep into the remedies of Texas law, analyzing the realities of their use coupled with their complexities. Additionally, it will examine the laws of other states to illustrate the unique complexities that exist in Texas law. Finally, this Comment will conclude with proposed changes that seek to streamline the financial lifeline of many construction industry participants
The Promise and Perils of Tech Whistleblowing
Get PDFWhistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete control over corporate information, shielding their activities from oversight and scrutiny by regulators and the public. Secrecy, however, begets leaks, and leaks have become the de facto source of crucial information for lawmakers, regulators, and the public. Today, whistleblowing is an important part of broader efforts to bring accountability and transparency to the tech industry.Yet existing frameworks for protecting whistleblowers are partial and haphazard. The law often permits firms to retaliate against internal critics, leakers, and organizers. The result is an informational environment shaped by selective disclosures on the part of tech whistleblowers, and enormous discretion for tech firms that can choose whether and how to respond. Whistleblowing is therefore an incomplete, but still significant, source of information in the absence of meaningful, rigorous, and systematic transparency rules. I make the case that broader protections for whistleblowing are a necessary component of systemic regulation of the tech sector