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Full-Text Articles in Law

Administrative Law In The Automated State, Cary Coglianese Apr 2021

Administrative Law In The Automated State, Cary Coglianese

Faculty Scholarship at Penn Law

In the future, administrative agencies will rely increasingly on digital automation powered by machine learning algorithms. Can U.S. administrative law accommodate such a future? Not only might a highly automated state readily meet longstanding administrative law principles, but the responsible use of machine learning algorithms might perform even better than the status quo in terms of fulfilling administrative law’s core values of expert decision-making and democratic accountability. Algorithmic governance clearly promises more accurate, data-driven decisions. Moreover, due to their mathematical properties, algorithms might well prove to be more faithful agents of democratic institutions. Yet even if an automated ...


Protecting Children In The Frontier Of Surveillance Capitalism, Cole F. Watson Feb 2021

Protecting Children In The Frontier Of Surveillance Capitalism, Cole F. Watson

Student Scholarship

This article examines the ongoing technological revolution and its impact on today’s consumers. In particular, this article addresses the promulgation of the Children’s Online Privacy Protection Act (COPPA) in the context of “surveillance capitalism”2 and analyzes the harms associated with social media and data collection. Finally, this paper will argue that COPPA should be revamped to better regulate the Internet of 2020. A just society ought to protect children from the lurking perils of social media.


Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton Jan 2021

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Articles

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites ...


Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Steve Middlebrook, Tom Kierner Jan 2021

Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Steve Middlebrook, Tom Kierner

Articles by Maurer Faculty

This survey year offered developments too numerous to cover, as often is the case. We debated which developments to include and decided to showcase different types of products and services, different providers, and different regulators. Part II views issues related to stimulus payments arising from the COVID-19 pandemic. Part III reports on litigation over whether retailers must offer gift cards printed in Braille. Part IV looks at recent actions of the Federal Trade Commission ("FTC") related to payment processors and others. Part V describes amendments to the "remittance" regulation promulgated by the Consumer Financial Protection Bureau ("CFPB"). Part VI focuses ...


Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison Jan 2021

Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison

Articles

The soccer referee stands in for a judge. Soccer’s Video Assistant Referee (“VAR”) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations.


Beyond Algorithms: Toward A Normative Theory Of Automated Regulation, Felix Mormann Jan 2021

Beyond Algorithms: Toward A Normative Theory Of Automated Regulation, Felix Mormann

Faculty Scholarship

The proliferation of artificial intelligence in our daily lives has spawned a burgeoning literature on the dawn of dehumanized, algorithmic governance. Remarkably, the scholarly discourse overwhelmingly fails to acknowledge that automated, non-human governance has long been a reality. For more than a century, policymakers have relied on regulations that automatically adjust to changing circumstances, without the need for human intervention. This article surveys the track record of self-adjusting governance mechanisms to propose a normative theory of automated regulation.

Effective policymaking frequently requires anticipation of future developments, from technology innovation to geopolitical change. Self-adjusting regulation offers an insurance policy against the ...


The Republic Of Letters And The Origins Of Scientific Knowledge Commons, Michael J. Madison Jan 2021

The Republic Of Letters And The Origins Of Scientific Knowledge Commons, Michael J. Madison

Book Chapters

The knowledge commons framework, deployed here in a review of the early network of scientific communication known as the Republic of Letters, combines a historical sensibility regarding the character of scientific research and communications with a modern approach to analyzing institutions for knowledge governance. Distinctions and intersections between public purposes and privacy interests are highlighted. Lessons from revisiting the Republic of Letters as knowledge commons may be useful in advancing contemporary discussions of Open Science.


Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg Jan 2021

Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg

Faculty Scholarship

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin ...


Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy Dec 2020

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

Faculty Scholarship at Penn Law

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often-countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way to ...


Network Effects In Action, Christopher S. Yoo Nov 2020

Network Effects In Action, Christopher S. Yoo

Faculty Scholarship at Penn Law

This Chapter begins by examining and exploring the theoretical and empirical limits of the possible bases of network effects, paying particular attention to the most commonly cited framework known as Metcalfe’s Law. It continues by exploring the concept of network externalities, defined as the positive external consumption benefits that the decision to join a network creates for the other members of the network, which is more ambiguous than commonly realized. It then reviews the structural factors needed for models based on network effects to have anticompetitive effects and identifies other factors that can dissipate those effects. Finally, it identifies ...


Is The Digital Economy Too Concentrated?, Jonathan Klick Nov 2020

Is The Digital Economy Too Concentrated?, Jonathan Klick

Faculty Scholarship at Penn Law

Concentration in the digital economy in the United States has sparked loud criticism and spurred calls for wide-ranging reforms. These reforms include everything from increased enforcement of existing antitrust laws, such as challenging more mergers and breaking up firms, to an abandonment of the consumer welfare standard. Critics cite corruption and more systemic public choice problems, while others invoke the populist origins of antitrust to slay the digital Goliaths. On the other side, there is skepticism regarding these arguments. This chapter continues much of that skepticism.


Federal Rule 44.1: Foreign Law In U.S. Courts Today, Vivian Grosswald Curran Nov 2020

Federal Rule 44.1: Foreign Law In U.S. Courts Today, Vivian Grosswald Curran

Articles

This article presents an in-depth analysis of the latent methodological issues that are as much a cause of U.S. federal court avoidance of foreign law as are judicial difficulties in obtaining foreign legal materials and difficulties in understanding foreign legal orders and languages. It explores Rule 44.1’s inadvertent introduction of a civil-law method into a common-law framework, and the results that have ensued, including an incomplete transition of foreign law from being an issue of fact to becoming an issue of law. It addresses the ways in which courts obtain information about foreign law today, suggesting among ...


Good Health And Good Privacy Go Hand-In-Hand (Originally Published By Jnslp), Jennifer Daskal Oct 2020

Good Health And Good Privacy Go Hand-In-Hand (Originally Published By Jnslp), Jennifer Daskal

Joint PIJIP/TLS Research Paper Series

No abstract provided.


Executive Order No. 13925: An Attempted Stop Sign On Our Global Cyber-Freeway, Robert C. Montañez Oct 2020

Executive Order No. 13925: An Attempted Stop Sign On Our Global Cyber-Freeway, Robert C. Montañez

GGU Law Review Blog

The year 2020 has brought times of physical isolation and the world has turned to the Internet as a bridge to normalcy. It is not uncommon for a person to wake up and grab his or her phone and consult it (rather than a newspaper) to gather news, browse through friends’ video “stories” shared overnight, check what is “trending” via Twitter, or even stream a popular video on YouTube. During the COVID-19 pandemic, the Internet is more important than ever before and its key to success is its immediacy. On May 26, 2020, without any supporting evidence, President Trump tweeted ...


Accessible Websites And Mobile Applications Under The Ada: The Lack Of Legal Guidelines And What This Means For Businesses And Their Customers, Josephine Meyer Oct 2020

Accessible Websites And Mobile Applications Under The Ada: The Lack Of Legal Guidelines And What This Means For Businesses And Their Customers, Josephine Meyer

Seattle University Law Review SUpra

No abstract provided.


Covert Deception, Strategic Fraud, And The Rule Of Prohibited Intervention (Originally Published As Part Of The Hoover Institution’S Aegis Series), Gary Corn Sep 2020

Covert Deception, Strategic Fraud, And The Rule Of Prohibited Intervention (Originally Published As Part Of The Hoover Institution’S Aegis Series), Gary Corn

Joint PIJIP/TLS Research Paper Series

No abstract provided.


In Re Petition For Rulemaking To Clarify Provisions Of Section 230 Of The Communications Act Of 1934: Comments Of Professors Christopher Terry And Daniel Lyons, Daniel A. Lyons, Christopher Terry Sep 2020

In Re Petition For Rulemaking To Clarify Provisions Of Section 230 Of The Communications Act Of 1934: Comments Of Professors Christopher Terry And Daniel Lyons, Daniel A. Lyons, Christopher Terry

Boston College Law School Faculty Papers

Professors Daniel Lyons and Christopher Terry both specialize in telecommunications law and have extensive experience in practice before the Federal Communications Commission. They are united in their opposition to the National Telecommunications & Information Administration’s Petition requesting that this agency interpret Section 230. NTIA’s proposal offends fundamental First Amendment principles and offers an interpretation of Section 230 that is inconsistent with the statute’s language, legislative history, and interpretation by this agency and by courts.


Day Of Reckoning Approaches For California Net Neutrality Law, Daniel A. Lyons Sep 2020

Day Of Reckoning Approaches For California Net Neutrality Law, Daniel A. Lyons

Boston College Law School Faculty Papers

In 2017, the Federal Communications Commission adopted the Restoring Internet Freedom Order (RIF Order), which repealed the Commission’s two-year-old net neutrality restrictions. This action spawned a flurry of activity in state legislatures that sought to re-impose those restrictions at the state level and subject the RIF Order to a death by a thousand paper cuts. Nowhere was this state activity more prominent than California, where Senate Bill 822 became a vehicle for net neutrality advocates not only to resurrect the requirements of the now-defunct 2015 Open Internet Order, but also to impose additional regulations that even the Obama-era FCC ...


Government Information Crackdowns In The Covid-19 Pandemic, Justin Sherman Aug 2020

Government Information Crackdowns In The Covid-19 Pandemic, Justin Sherman

Joint PIJIP/TLS Research Paper Series

The Covid-19 pandemic has illustrated the importance of accurate, real-time information and empirical data in a rapidly evolving crisis. Yet it has also captured an opposite issue: the spread of misinformation and disinformation during a public health crisis. Numerous governments have used the Covid-19 pandemic as reason to, legitimately or illegitimately, heighten existing state censorship practices or introduce new practices entirely under the justification of stopping false information about the virus. This report analyzes developments in China, India, and Russia as case studies of government censorship amid the public health crisis. It offers five key takeaways from these case studies ...


Tech Policy And Legal Theory Syllabus, Yafit Lev-Aretz, Nizan Packin Aug 2020

Tech Policy And Legal Theory Syllabus, Yafit Lev-Aretz, Nizan Packin

Open Educational Resources

Technology has changed dramatically over the last couple of decades. Currently, virtually all business industries are powered by large quantities of data. The potential as well as actual uses of business data, which oftentimes includes personal user data, raise complex issues of informed consent and data protection. This course will explore many of these complex issues, with the goal of guiding students into thinking about tech policy from a broad ethical perspective as well as preparing students to responsibly conduct themselves in different areas and industries in a world growingly dominated by technology.


The Law Of Black Mirror - Syllabus, Yafit Lev-Aretz, Nizan Packin Aug 2020

The Law Of Black Mirror - Syllabus, Yafit Lev-Aretz, Nizan Packin

Open Educational Resources

Using episodes from the show Black Mirror as a study tool - a show that features tales that explore techno-paranoia - the course analyzes legal and policy considerations of futuristic or hypothetical case studies. The case studies tap into the collective unease about the modern world and bring up a variety of fascinating key philosophical, legal, and economic-based questions.


Is Data Localization A Solution For Schrems Ii?, Anupam Chander Jul 2020

Is Data Localization A Solution For Schrems Ii?, Anupam Chander

Georgetown Law Faculty Publications and Other Works

For the second time this decade, the Court of Justice of the European Union has struck a blow against the principal mechanisms for personal data transfer to the United States. In Data Protection Commissioner v Facebook Ireland, Maximillian Schrems, the Court declared the EU-US Privacy Shield invalid and placed significant hurdles to the process of transferring personal data from the European Union to the United States via the mechanism of Standard Contractual Clauses. Many have begun to suggest data localization as the solution to the problem of data transfer; that is, don’t transfer the data at all. I argue ...


Syllabus For Issues In Law Enforcement: Cybersecurity And Public Interest Technology, Amy J. Ramson Jul 2020

Syllabus For Issues In Law Enforcement: Cybersecurity And Public Interest Technology, Amy J. Ramson

Open Educational Resources

This is a syllabus for a course in Issues in Law Enforcement. The curriculum is a public interest technology course in cybersecurity. Principally, the federal government handles cybersecurity investigations along with some state governments and the FBI acts as the center for all cybersecurity complaints.

The course expands beyond law enforcement and provides a comprehensive background to the field through the following presentations: a history of cybersecurity; an explanation of the Internet; an introduction to cybercrime and cybersecurity techniques; the legal environment, which includes a survey of law enforcement and prosecution departments and agencies, and federal and NY state criminal ...


Cybersecurity-Cybercrime-The Legal Environment, Amy J. Ramson Jul 2020

Cybersecurity-Cybercrime-The Legal Environment, Amy J. Ramson

Open Educational Resources

This presentation covers the legal environment of cybercrime to date. It addresses: the challenges of law enforcement; federal government vs. sate jurisdiction of cybercrime; law enforcement department and agencies which handle cybercrime; criminal statutes and privacy statutes.


Towards A Data-Driven Financial System: The Impact Of Covid-19, Nydia Remolina Jul 2020

Towards A Data-Driven Financial System: The Impact Of Covid-19, Nydia Remolina

Centre for AI & Data Governance

The COVID-19 outbreak has a growing impact on the global economy and the financial sector, which plays a critical role in mitigating the unprecedented macroeconomic and financial shock caused by the pandemic. Given the unprecedented nature of the current crisis, financial regulators and supervisors, central banks, along with governments and legislatures face challenges to maintain financial stability, preserve the well-functioning core markets, and ensure the flow of credit to the real economy. Even though the COVID-19 has slowed down our daily lives and stopped the operation of many industries, it did not have the same effect in the data-driven finance ...


Automated Copyright Enforcement Online: From Blocking To Monetization Of User-Generated Content, Henning Grosse Ruse-Khan Jul 2020

Automated Copyright Enforcement Online: From Blocking To Monetization Of User-Generated Content, Henning Grosse Ruse-Khan

Joint PIJIP/TLS Research Paper Series

Global platforms such as YouTube, Facebook, Instagram or TikTok live on users ‘freely’ sharing content, in exchange for the data generated in the process. Many of these digital market actors nowadays employ automated copyright enforcement tools, allowing those who claim ownership to identify matching content uploaded by users. While most debates on state-sanctioned platform liability and automated private ordering by platforms has focused on the implications of user generated content being blocked, this paper places a spotlight on monetization. Using YouTube’s Content ID as principal example, I show how monetizing user content is by far the norm, and blocking ...


Artificial Financial Intelligence, William Magnuson Jul 2020

Artificial Financial Intelligence, William Magnuson

Faculty Scholarship

Recent advances in the field of artificial intelligence have revived long-standing debates about what happens when robots become smarter than humans. Will they destroy us? Will they put us all out of work? Will they lead to a world of techno-savvy haves and techno-ignorant have-nots? These debates have found particular resonance in finance, where computers already play a dominant role. High-frequency traders, quant hedge funds, and robo-advisors all represent, to a greater or lesser degree, real-world instantiations of the impact that artificial intelligence is having on the field. This Article will argue that the primary danger of artificial intelligence in ...


Revisiting The Western Frontier, Alfred C. Yen Jun 2020

Revisiting The Western Frontier, Alfred C. Yen

Boston College Law School Faculty Papers

I appreciate very much the opportunity to look back on “old” scholarship. The work I have chosen to review is Western Frontier or Feudal Society? Metaphors and Perceptions of Cyberspace. I published this article in 2002 as a reaction to the then popular idea that the Internet was a libertarian utopia whose natural qualities made government regulation unnecessary or perhaps even harmful.

Hindsight is indeed 20/20, and there are things one could have done differently. Whether it would have been reasonably possible for me to do these things is an open question. Accordingly, I will divide my retrospective into ...


Boston’S Victory Against Airbnb Poses Risks To Internet Economy, Daniel A. Lyons May 2020

Boston’S Victory Against Airbnb Poses Risks To Internet Economy, Daniel A. Lyons

Boston College Law School Faculty Papers

Like many popular tourist destinations, Boston benefits from the sharing economy. Innovative intermediaries such as Airbnb have helped middle-class residents supplement their incomes by monetizing their greatest assets: their homes. The new short-term rental market allows homeowners to keep up with rising living costs while providing additional capacity to attract tourists who contribute to the local economy.

Also like many cities nationwide, Boston has struggled with the unintended consequences of this new marketplace. Policymakers are concerned that the new market is incentivizing owners to remove long-term rentals from the housing stock, particularly in popular and space-constrained areas like Chinatown. To ...


Regulatory Approaches To Consumer Protection In The Financial Sector And Beyond: Toward A Smart Disclosure Regime?, Nydia Remolina, Aurelio Gurrea-Martinez, Yvonne Ai-Chi Loh, David R. Hardoon May 2020

Regulatory Approaches To Consumer Protection In The Financial Sector And Beyond: Toward A Smart Disclosure Regime?, Nydia Remolina, Aurelio Gurrea-Martinez, Yvonne Ai-Chi Loh, David R. Hardoon

Centre for AI & Data Governance

Traditionally, consumer and data protection policies evolved from issues of consent and information disclosure. The purpose of these regulatory approaches is the protection of consumers by reducing some contracting failures, such as asymmetries of information and a lower bargaining power, especially in transactions involving complex issues such as financial products and sensitive personal data. In the past, regulators have responded to privacy and consumer protection by adopting what this paper refers to as an “imperfectly informed regime”, in which consumers do not receive full information about the risks associated with their decisions, even if they are still protected through a ...