Digital Commons Network^™

Not The Same Old Broken Record?: Why Judicial Review Of The 2024 Net Neutrality Rules Could Be Different, Christopher S. Yoo

Articles

Judicial review of the Open Internet Order adopted by the Federal Communications Commission (“FCC”) in April 2024 has the chance to deviate substantially from the deferential scrutiny that resulted in upholding all three versions of the net neutrality rules adopted in prior years. With respect to administrative law, the Supreme Court’s pending reconsideration of the Chevron doctrine and its 2022 embrace of the major questions doctrine may open the door to more exacting judicial scrutiny of the FCC’s actions. In addition, Justice Kavanaugh’s elevation to the Supreme Court provides new salience to the First Amendment challenge to the 2015 version …

Rethinking The Balance Of Interests In Non-Exculpatory Defenses, Paul Robinson, Jeffrey Seaman, Muhammad Sarahne

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"Most criminal law defenses serve the criminal law’s goal of shielding blameless defendants from liability. Justification defenses, such as self-defense and law enforcement authority, exculpate on the ground that the defendant’s conduct, on balance, does not violate a societal norm. Excuse defenses, such as insanity and duress, exculpate on the ground that, while the defendant may well have violated a societal norm, it was done blamelessly. That is, it is the excusing conditions, not the defendant, that is to blame. In contrast, a third group of general defenses, what has been called “non-exculpatory defenses,” bar liability in instances where the …

Generative Interpretation, David A. Hoffman, Yonathan Arbel

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We introduce generative interpretation, a new approach to estimating contractual meaning using large language models. As AI triumphalism is the order of the day, we proceed by way of grounded case studies, each illustrating the capabilities of these novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the actual agreements that they adjudicated, we show that AI models can help factfinders ascertain ordinary meaning in context, quantify ambiguity, and fill gaps in parties’ agreements. We also illustrate how models can calculate the probative value of individual pieces of extrinsic evidence. After offering best practices for the use of …

Enhancing Public Access To Agency Law, Cary Coglianese, Bernard W. Bell, Michael Herz, Margaret Kwoka, Orly Lobel

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"A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

Adventure Capital, Elizabeth Pollman

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This symposium Article traces the history and rise of venture capital and venture-backed startups in the United States from a business law perspective and explores the current big questions in the field. This examination highlights that after lawmakers shaped the enabling environment for venture capital to flourish, corporate and securities law has responded to the rise of venture-backed startups incrementally but with profound effect. Although business law has not always fit easily with the distinctive features of venture backed startups, it has provided an enormous space in the private realm for them to order their governance and maneuver with relative …

Partisanship Creep, Kate Shaw

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It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.

For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton …

Overseeing The Administrative State, Jill Fisch

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"In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A HISTORY OF SECURITIES LAW IN THE SUPREME COURT, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

What's In A Name?: Common Carriage, Social Media, And The First Amendment, Christopher S. Yoo

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Courts and legislatures have suggested that classifying social media as common carriers would make restrictions on their right to exclude users more constitutionally permissible under the First Amendment. A review of the relevant statutory definitions reveals that the statutes provide no support for classifying social media as common carriers. Moreover, the fact that a legislature may apply a label to a particular actor plays no significant role in the constitutional analysis. A further review of the elements of the common law definition of common carrier reveals that four of the purported criteria (whether the industry is affected with a public …

Toward Abolitionist Remedies: Police (Non)Reform Litigation After The 2020 Uprisings, Cara Mcclellan, Jamelia N. Morgan

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In the summer of 2020, across the country, Americans took to the street in protest of Mr. George Floyd’s murder and the police killings of countless other Black people. In too many cases, police responded to protesters with excessive force and the very brutality that had led people to protest police in the first place. In the wake of these horrific displays of force, over 40 lawsuits were filed nationwide that challenged police conduct at protests. Smith v. City of Philadelphia, one of the lawsuits brought on behalf of residents and protesters in Philadelphia, was unique because the tragic underlying …

A Rapidly Shifting Landscape : Why Digitized Violence Is The Newest Category Of Gender-Based Violence, Rangita De Silva De Alwis

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This paper proposes that new research on technology-facilitated violence must shape gender-based violence against women laws. Given the AI revolution, including large language models (“ LLMs ”), and generative artificial intelligence, new technologies continue to create power disparities that help facilitate gender-based violence both online and offline. The paper argues that the veil of anonymity provided by the digital realm facilitates violence ; and the automation capabilities offered by technology amplify the scope and impact of abusive behavior. Although the direct physical act of sexual violence is different from offline violence, there are similarities. Firstly, both acts share the structural …

Grid Reliability In The Electric Era, Joshua Macey, Shelley Welton, Hannah Wiseman

Articles

The United States has delegated the weighty responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Despite the fact that NERC is one of the largest and most important examples of industry-led governance—and regulates in an area that is central to our economy and basic human survival—this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To achieve deep decarbonization, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run largely …

Lessons From Gdpr For Ai Policymaking, Christopher S. Yoo, Josephine Wolff, William Lehr

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The ChatGPT chatbot has not just caught the public imagination; it is also amplifying concern across industry, academia, and government policymakers interested in the regulation of Artificial Intelligence (AI) about how to understand the risks and threats associated with AI applications. Following the release of ChatGPT, some EU regulators proposed changes to the EU AI Act to classify AI systems like ChatGPT that generate complex texts without any human oversight as “high-risk” AI systems that would fall under the law’s requirements. That classification was a controversial one, with other regulators arguing that technologies like ChatGPT, which merely generate text, are …

Chaotic Childhoods, Stephanos Bibas

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Rob Henderson’s breakout memoir, Troubled, gives us a window on troubled youth. Henderson, a brilliant young psychologist, illumines how harmful childhood instability is by reflecting on his own experience. He never knew his father, was abandoned by his drug-addicted mother, and bounced around foster care. After squandering much of his early education and drowning his rage in alcohol, drugs, fights, and vandalism, he made his way through the Air Force to Yale and now Cambridge. But few of his friends escaped the wounds from their childhoods; many wound up unemployed, in prison, or dead. As an outsider to the elites …

The Critical Role Of History After Dobbs, Serena Mayeri

Articles

The Dobbs majority’s reliance on a flawed and impoverished account of “history and tradition” to deny fundamental freedoms today may tempt us to despair of appealing to the past as a source of constitutional rights or principles. But the problem with Dobbs is not its discussion of history per se; rather, it is how and for what purposes the Court looks to the past. History need not preserve archaic values; it can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality. This essay explores critical roles for history in legal, constitutional, and political arguments about …

Democracy's Bureaucracy: The Complicated Case Of Voter Registration Lists, Michael Morse

Articles

This Article calls attention to the development and derailment of a novel cross-governmental bureaucracy for voter registration. It focuses specifically on voter registration lists as the vulnerable backbone of election administration. In short, the constitutional allocation of election authority has left a mobile electorate scattered across fifty different state registration lists. The result is more than a tenth of the electorate likely registered in their former jurisdiction and more than a third not registered at all. The solution, in the vocabulary of election officials, has become “list maintenance”—or, identifying when voters, previously registered at one address, subsequently move or die, …

Corporate Democracy And The Intermediary Voting Dilemma, Jill E. Fisch, Jeff Schwartz

Articles

Corporate governance is changing. For the past two decades, the focus of shareholder voting and engagement was deconstructing impediments to shareholder power and increasing managerial accountability. The goal of these interventions was to increase firm value by reducing agency costs. Increasingly, however, environmental and social issues have risen to the fore. This new focus is arguably more about values than value. This Article is the first to argue that, because of this shift, institutional intermediaries—namely, pension and mutual fund managers—can no longer vote and engage on the affairs of their portfolio companies without seeking the input of the pension-plan participants …

Startup Failure, Elizabeth Pollman

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Venture-backed startups famously aim for a successful “exit” by going public or selling to another company through an acquisition deal and achieving financial return for all equity holders. A different path, however, is vastly more likely to occur—failure. Although high-risk innovative ventures fail at exceedingly high rates, no scholarly account systematically explains what happens to these startups at the end of their life cycle. This Article provides an original theory of startup failure: how law and culture have shaped a system for dealing with the large number of startups that cannot reach an exit that will produce a financial return …

Algorithms And Competition In The Digital Economy, Cary Coglianese, Alicia Lai

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No abstract provided.

Standing Back And Standing Down: Citizen Non-Cooperation And Police Non-Intervention As Causes Of Justice Failure And Crime, Paul H. Robinson, Jeffrey Seaman, Muhammad Sarahne

Articles

The article discusses the failures of the American justice system to find and punish offenders for the majority of serious crimes. It highlight the low clearance and conviction rates for crimes such as murder, rape, and assault. It further argues that these failures of justice have practical consequences on crime rates and also disproportionately affect racial minorities and low-income communities.

Gender And Deception: Moral Perceptions And Legal Responses, Gregory Klass, Tess Wilkinson-Ryan

Articles

Decades of social science research has shown that the identity of the parties in a legal action can affect case outcomes. Parties’ race, gender, class, and age all affect decisions of prosecutors, judges, juries, and other actors in a criminal prosecution or civil litigation. Less studied has been how identity might affect other forms of legal regulation. This Essay begins to explore perceptions of deceptive behavior—i.e., how wrongful it is, and the extent to which it should be regulated or punished—and the relationship of those perceptions to the gender of the actors. We hypothesize that ordinary people tend to perceive …

Donating To The District Attorney, Michael Morse, Carissa Byrne Hessick, Nathan Pinnell

Articles

The United States is the only country that elects its local prosecutors. In theory, these local elections could facilitate local control of criminal justice policy. But the academic literature assumes that, in practice, prosecutor elections fail to live up to that promise. This Article complicates that conventional wisdom with a new, national study of campaign contributions in prosecutor accountability by analyzing contributions to local candidates as well as their election results. It details the amount of money in local prosecutor elections, including from interest groups, and the relationship between candidate fundraising and success. The stark differences across the country underscore …

What Is A Law And Political Economy Movement Without Law And Economics Or Political Economy?, Gus Hurwitz

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No abstract provided.

Contracting Covid: Private Order And Public Good (Standstills), Norman Powell, Jonathan C. Lipson

Articles

COVID (2019) rendered many contracts in or near breach. If commercial actors in these circumstances marshaled their presumptive legal rights—whether to sue or to shelter in bankruptcy—the result could be catastrophic for the legal system and for an economy that is increasingly interconnected through contract. The fact that the economy might revive quickly would mean that terminating relationships through litigation could be especially wasteful. Responses to COVID’s effect on contract have focused largely on public interventions such as government mandates and subsidies, as well as adjudication. This essay explores the important but underappreciated role that private ordering can play through …

A Podcast Of One's Own, Katherine Shaw, Leah Litman, Melissa Murray

Articles

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are …

Designing A Pattern, Darkly, Gus Hurwitz

Articles

There is growing academic, regulatory, and legislative interest in “dark patterns”—digital design practices that influence user behavior in ways that may not align with users’ interests. For instance, websites may present information in ways that influence user decisions, or use design elements that make it easier for users to engage in one behavior (e.g., purchasing the items in a shopping cart) than another (e.g., reviewing the items in that shopping cart). The general thrust of this interest is that dark patterns are problematic and require regulatory or legislative action. While acknowledging that many concerns about dark patterns are legitimate, this …

Picking Prosecutors, Michael Morse, Carissa Byrne Hessick

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The conventional academic wisdom is that prosecutor elections are little more than empty exercises. Using a new, national survey of local prosecutor elections––the first of its kind––this Article offers a more complete account of the legal and empirical landscape. It confirms that incumbents are rarely contested and almost always win. But it moves beyond extant work to consider the nature of local political conflict, including how often local prosecutors face any contestation or any degree of competition. It also demonstrates a significant difference in the degree of incumbent entrenchment based on time in office. Most importantly, it reveals a stark …

Faith, Law, And Love: Peg Brinig's Legacy, Stephanos Bibas

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The central question in Peg Brinig’s work is how the law can help intimate associations to raise healthy kids. She pursues this theme through a variety of inquiries, ranging from parochial schools in big-city neighborhoods to covenant-marriage laws in Louisiana. Her answers depend on context, varying with how close each social actor or institution is to the process of raising children. But nearly all her recommendations seek to foster permanent, loving, involved social environments. Following Brinig’s lead, I’ll celebrate her work by highlighting some of the answers she offers in three different social contexts. In Part I, I’ll explore her …

Madison And Shannon On Social Media, Gus Hurwitz

Articles

The Internet has changed speech, and our traditional understandings of speech regulation are struggling to adapt. This article argues that the Internet has tipped the quantity of information that individuals are exposed to beyond the point which they are able to meaningfully process. This article draws from a range of fields— from Information Theory, to cognitive psychology, to informatics—to provide both empirical and theoretical support for the idea that there is a limit to how much information individuals can meaningfully process and that we have surpassed that limit. This argument poses a direct challenge to bedrock First Amendment concepts such …

Telemarketing, Technology, And The Regulation Of Private Speech: First Amendment Lessons From The Fcc's Tcpa Rules, Gus Hurwitz

Articles

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent (such as Reed v. Town of Gilbert and Sorrell v. IMS Health) and technological & regulatory developments (such as the FCC’s ongoing consideration of rules that would allow or require prospective callers to implement technologies that obviate many of the TCPA’s concerns). The TCPA is the primary law prohibiting “robocalls” – phone calls made using autodialers or pre-recorded messages without the consent of the call recipient. In recent years robocalls have become one of the primary consumer protection issues …

State, Local, And Regional Issues In Cybersecurity: Symposium Introduction, Gus Hurwitz

Articles

Cybersecurity is one of the more difficult and urgent issues of the day. It is an issue that touches almost every aspect of modern life. Recent years have seen major cybersecurity incidents affect national security, our political process, major government institutions, companies of every size throughout our economy, critical infrastructure, banking, consumer electronics, and, of course, consumers themselves. Examples of each of these feature so prominently in the news that they barely need citation: OPM, Sony, Target, concerns about the 2016 election, disclosure of NSA hacking tools, attacks on the banking sector’s SWIFT network, ransomware attacks against hospitals, DDoS attacks …