Engineering Commons^™

The First Amendment, Common Carriers, And Public Accommodations: Net Neutrality, Digital Platforms, And Privacy, Christopher S. Yoo

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Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial …

Administrative Law In The Automated State, Cary Coglianese

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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 state were …

Rethinking Grid Governance For The Climate Change Era, Shelley Welton

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The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, at the same time that it transforms to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100% clean energy targets. But fossil fuel corporations are pushing back, seeking to maintain their structural domination of the U.S. energy sector. This article calls attention to one central but under-scrutinized way that these companies impede the clean energy transition: Incumbent fossil fuel companies …

The Bounds Of Energy Law, Shelley Welton

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U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil …

Environmental Soft Law As A Governance Strategy, Cary Coglianese

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Soft law governance relies on nongovernmental institutions that establish and implement voluntary standards. Compared with traditional hard law solutions to societal and economic problems, soft law alternatives promise to be more politically feasible to establish and then easier to adapt in the face of changing circumstances. They may also seem more likely to be flexible in what they demand of targeted businesses and other entities. But can soft law actually work to solve major problems? This Article considers the value of soft law governance through the lens of three major voluntary, nongovernmental initiatives that address environmental concerns: (1) ISO 14001 …

Transparency And Algorithmic Governance, Cary Coglianese, David Lehr

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Machine-learning algorithms are improving and automating important functions in medicine, transportation, and business. Government officials have also started to take notice of the accuracy and speed that such algorithms provide, increasingly relying on them to aid with consequential public-sector functions, including tax administration, regulatory oversight, and benefits administration. Despite machine-learning algorithms’ superior predictive power over conventional analytic tools, algorithmic forecasts are difficult to understand and explain. Machine learning’s “black-box” nature has thus raised concern: Can algorithmic governance be squared with legal principles of governmental transparency? We analyze this question and conclude that machine-learning algorithms’ relative inscrutability does not pose a …

The Tao Of The Dao: Taxing An Entity That Lives On A Blockchain, David J. Shakow

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In this report, Shakow explains how a decentralized autonomous organization functions and interacts with the U.S. tax system and presents the many tax issues that these structures raise. The possibility of using smart contracts to allow an entity to operate totally autonomously on a blockchain platform seems attractive. However, little thought has been given to how such an entity can comply with the requirements of a tax system. The DAO, the first major attempt to create such an organization, failed because of a programming error. If successful examples proliferate in the future, tax authorities will face significant problems in getting …

The Quiet Undoing: How Regional Electricity Market Reforms Threaten State Clean Energygoals, Danny Cullenward, Shelley Welton

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In a series of largely unnoticed but extremely consequential moves, two regional electricity market operators are pursuing reforms to make it more difficult for states to achieve their clean energy goals. The federal energy regulator, FERC, has already approved one such reform and ordered a second market operator to go farther in punishing state-supported clean energy resources than it had initially proposed. This disturbing trend highlights a shift in energy governance that threatens to destabilize the field’s delicate cooperative federalist model. Over the past several decades, states have increasingly ceded control over energy dispatch and grid planning to private market …

Common Carriage’S Domain, Christopher S. Yoo

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The judicial decision invalidating the Federal Communications Commission's first Open Internet Order has led advocates to embrace common carriage as the legal basis for network neutrality. In so doing, network neutrality proponents have overlooked the academic literature on common carriage as well as lessons from its implementation history. This Essay distills these learnings into five factors that play a key role in promoting common carriage's success: (1) commodity products, (2) simple interfaces, (3) stability and uniformity in the transmission technology, (4) full deployment of the transmission network, and (5) stable demand and market shares. Applying this framework to the Internet …

Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr

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Machine-learning algorithms are transforming large segments of the economy, underlying everything from product marketing by online retailers to personalized search engines, and from advanced medical imaging to the software in self-driving cars. As machine learning’s use has expanded across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of life previously dependent on human judgment. Alarm bells sounding over the diffusion of artificial intelligence throughout the private sector only portend greater anxiety about digital robots replacing humans in the governmental sphere. A few administrative agencies have already begun to adopt this technology, while others …

Public Energy, Shelley Welton

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Many scholars and policy makers celebrate cities as loci for addressing climate change. In addition to being significant sources of carbon pollution, cities prove to be dynamic sites of experimentation and ambition on climate policy. However, as U.S. cities set climate change goals far above those of their federal and state counterparts, they are butting up against the limits of their existing legal authority, most notably with regard to control over energy supplies. In response, many U.S. cities are exercising their legal rights to reclaim public ownership or control over private electric utilities as a method of achieving their climate …

Grid Modernization And Energy Poverty, Shelley Welton

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Grid modernization holds the alluring promise of rationalizing electricity pricing, saving consumers money, and improving environmental quality all at the same time. Yet, we have seen only limited and patchwork regulatory initiatives towards significant grid modernization in the United States. Outside of a few leading states, state energy regulators appear loath to embrace full-throated versions of the project. This article argues that the under-discussed problem of energy poverty in the United States is a critical contributing factor in the gap between grid modernization’s possibilities and our regulatory reality. Only by explicitly understanding how the issues of grid modernization and energy …

The Challenge Of Regulatory Excellence, Cary Coglianese

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Regulation is a high-stakes enterprise marked by tremendous challenges and relentless public pressure. Regulators are expected to protect the public from harms associated with economic activity and technological change without unduly impeding economic growth or efficiency. Regulators today also face new demands, such as adapting to rapidly changing and complex financial instruments, the emergence of the sharing economy, and the potential hazards of synthetic biology and other innovations. Faced with these challenges, regulators need a lodestar for what constitutes high-quality regulation and guidance on how to improve their organizations’ performance. In the book Achieving Regulatory Excellence, leading regulatory experts …

Open Source, Modular Platforms, And The Challenge Of Fragmentation, Christopher S. Yoo

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Open source and modular platforms represent two powerful conceptual paradigms that have fundamentally transformed the software industry. While generally regarded complementary, the freedom inherent in open source rests in uneasy tension with the strict structural requirements required by modularity theory. In particular, third party providers can produce noncompliant components, and excessive experimentation can fragment the platform in ways that reduce its economic benefits for end users and app providers and force app providers to spend resources customizing their code for each variant. The classic solutions to these problems are to rely on some form of testing to ensure that the …

Wireless Network Neutrality: Technological Challenges And Policy Implications, Christopher S. Yoo

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One key aspect of the debate over network neutrality has been whether and how network neutrality should apply to wireless networks. The existing commentary has focused on the economics of wireless network neutrality, but to date a detailed analysis of how the technical aspects of wireless networks affect the implementation of network neutrality has yet to appear in the literature. As an initial matter, bad handoffs, local congestion, and the physics of wave propagation make wireless broadband networks significantly less reliable than fixed broadband networks. These technical differences require the network to manage dropped packets and congestion in a way …

Cloud Computing, Contractibility, And Network Architecture, Christopher S. Yoo

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The emergence of the cloud is heightening the demands on the network in terms of bandwidth, ubiquity, reliability, latency, and route control. Unfortunately, the current architecture was not designed to offer full support for all of these services or to permit money to flow through it. Instead of modifying or adding specific services, the architecture could redesigned to make Internet services contractible by making the relevant information associated with these services both observable and verifiable. Indeed, several on-going research programs are exploring such strategies, including the NSF’s NEBULA, eXpressive Internet Architecture (XIA), ChoiceNet, and the IEEE’s Intercloud projects.

Cyber Espionage Or Cyber War?: International Law, Domestic Law, And Self-Protective Measures, Christopher S. Yoo

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Scholars have spent considerable effort determining how the law of war (particularly jus ad bellum and jus in bello) applies to cyber conflicts, epitomized by the Tallinn Manual on the International Law Applicable to Cyber Warfare. Many prominent cyber operations fall outside the law of war, including the surveillance programs that Edward Snowden has alleged were conducted by the National Security Agency, the distributed denial of service attacks launched against Estonia and Georgia in 2007 and 2008, the 2008 Stuxnet virus designed to hinder the Iranian nuclear program, and the unrestricted cyber warfare described in the 1999 book by …

A Market-Oriented Analysis Of The 'Terminating Access Monopoly' Concept, Jonathan E. Nuechterlein, Christopher S. Yoo

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Policymakers have long invoked the concept of a “terminating access monopoly” to inform communications policy. Roughly speaking, the concept holds that a consumer-facing network provider, no matter how small or how subject to retail competition, generally possesses monopoly power vis-à-vis third-party senders of communications traffic to its customers. Regulators and advocates have routinely cited that concern to justify regulatory intervention in a variety of contexts where the regulated party may or may not have possessed market power in any relevant retail market.

Despite the centrality of the terminating access monopoly to modern communications policy, there is surprisingly little academic literature …

Moore’S Law, Metcalfe’S Law, And The Theory Of Optimal Interoperability, Christopher S. Yoo

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Many observers attribute the Internet’s success to two principles: Moore’s Law and Metcalfe’s Law. These precepts are often cited to support claims that larger networks are inevitably more valuable and that costs in a digital environment always decrease. This Article offers both a systematic description of both laws and then challenges the conventional wisdom by exploring their conceptual limitations. It also explores how alternative mechanisms, such as gateways and competition, can permit the realization benefits typically attributed to Moore’s Law and Metcalfe’s Law without requiring increases in network size.

U.S. Vs. European Broadband Deployment: What Do The Data Say?, Christopher S. Yoo

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As the Internet becomes more important to the everyday lives of people around the world, commentators have tried to identify the best policies increasing the deployment and adoption of high-speed broadband technologies. Some claim that the European model of service-based competition, induced by telephone-style regulation, has outperformed the facilities-based competition underlying the US approach to promoting broadband deployment. The mapping studies conducted by the US and the EU for 2011 and 2012 reveal that the US led the EU in many broadband metrics.

• High-Speed Access: A far greater percentage of US households had access to Next Generation Access (NGA) …

Technological Determinism And Its Discontents, Christopher S. Yoo

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This book review takes a critical review of the claim advanced by Susan Crawford in Captive Audience that the merger between Comcast and NBC Universal would harm consumers and that policymakers should instead promote common carriage regulation and subsidize municipal symmetrical gigabit fiber-to-the-home (FTTH). First it evaluates the extent to which next-generation digital subscriber lines (DSL) and wireless broadband technologies can serve as effective substitutes for cable modem service, identifying FCC data showing that the market has become increasingly competitive and likely to continue to do so. Furthermore, the market is not structured in a way that would permit the …

Possible Paradigm Shifts In Broadband Policy, Christopher S. Yoo

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Debates over Internet policy tend to be framed by the way the Internet existed in the mid-1990s, when the Internet first became a mass-market phenomenon. At the risk of oversimplifying, the Internet was initially used by academics and tech-savvy early adopters to send email and browse the web over a personal computer connected to a telephone line via networks interconnected through in a limited way. Since then, the Internet has become much larger and more diverse in terms of users, applications, technologies, and business relationships. More recently, Internet growth has begun to slow both in terms of the number of …

Toward A Closer Integration Of Law And Computer Science, Christopher S. Yoo

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Legal issues increasingly arise in increasingly complex technological contexts. Prominent recent examples include the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), network neutrality, the increasing availability of location information, and the NSA’s surveillance program. Other emerging issues include data privacy, online video distribution, patent policy, and spectrum policy. In short, the rapid rate of technological change has increasingly shown that law and engineering can no longer remain compartmentalized into separate spheres. The logical response would be to embed the interaction between law and policy deeper into the fabric of both fields. An essential step would …

The Taxation Of Cloud Computing And Digital Content, David Shakow

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“Cloud computing” raises important and difficult questions in state tax law, and for Federal taxes, particularly in the foreign tax area. As cloud computing solutions are adopted by businesses, items we view as tangible are transformed into digital products. In this article, I will describe the problems cloud computing poses for tax systems. I will show how current law is applied to cloud computing and will identify the difficulties current approaches face as they are applied to this developing technology.

My primary interest is how Federal tax law applies to cloud computing, particularly as the new technology affects international transactions. …

When Antitrust Met Facebook, Christopher S. Yoo

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Social networks are among the hottest phenomena on the Internet. Facebook eclipsed Google as the most visited website in both 2010 and 2011. Moreover, according to Nielsen estimates, as of the end of 2011 the average American spent nearly seven hours per month on Facebook, which is more time than they spent on Google, Yahoo!, YouTube, Microsoft, and Wikipedia combined. LinkedIn’s May 19, 2011 initial public offering (“IPO”) surpassed expectations, placing the value of the company at nearly $9 billion, and approximately a year later, its stock price had risen another 20 percent. Facebook followed suit a year later with …

Network Neutrality And The Need For A Technological Turn In Internet Scholarship, Christopher S. Yoo

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To most social scientists, the technical details of how the Internet actually works remain arcane and inaccessible. At the same time, convergence is forcing scholars to grapple with how to apply regulatory regimes developed for traditional media to a world in which all services are provided via an Internet-based platform. This chapter explores the problems caused by the lack of familiarity with the underlying technology, using as its focus the network neutrality debate that has dominated Internet policy for the past several years. The analysis underscores a surprising lack of sophistication in the current debate. Unfamiliarity with the Internet’s architecture …

Rough Consensus And Running Code: Integrating Engineering Principles Into Internet Policy Debates, Christopher S. Yoo

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This is the introduction to a symposium issue for a conference designed to bring the engineering community, policymakers, legal academics, and industry participants together in an attempt to provide policymakers with a better understanding of the Internet’s technical aspects and to explore emerging issues of particular importance to current broadband policy.

Promoting The Buildout Of New Networks Vs. Compelling Access To The Monopoly Loop: A Clash Of Regulatory Paradigms, Christopher S. Yoo

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No abstract provided.

Product Life Cycle Theory And The Maturation Of The Internet, Christopher S. Yoo

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Much of the recent debate over Internet policy has focused on the permissibility of business practices that are becoming increasingly common, such as new forms of network management, prioritization, pricing, and strategic partnerships. This Essay analyzes these developments through the lens of the management literature on the product life cycle, dominant designs, technological trajectories and design hierarchies, and the role of complementary assets in determining industry structure. This analysis suggests that many of these business practices may represent nothing more than a reflection of how the nature of competition changes as industries mature. This in turn suggests that network neutrality …

Network Neutrality Or Internet Innovation?, Christopher S. Yoo

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Over the past two decades, the Internet has undergone an extensive re-ordering of its topology that has resulted in increased variation in the price and quality of its services. Innovations such as private peering, multihoming, secondary peering, server farms, and content delivery networks have caused the Internet’s traditionally hierarchical architecture to be replaced by one that is more heterogeneous. Relatedly, network providers have begun to employ an increasingly varied array of business arrangements and pricing. This variation has been interpreted by some as network providers attempting to promote their self interest at the expense of the public. In fact, these …