Law Commons^™

Either The Law Will Govern Ai, Or Ai Will Govern The Law, Margaret Hu

Popular Media

No abstract provided.

Caging The Bored Ape: How The Ftc's Expanded Anti-Monopoly Authority Can Tame "Nfts" For Web 3.0, J. Scott Colesanti

William & Mary Business Law Review

Non-Fungible Tokens, or “NFTs,” ballooned into a 40-billion-dollar industry in under a decade. Their creators include artists, corporations, entrepreneurs, fraudsters—and even Donald Trump. While NFT owners and traders could be any of us, the parties running the marketplaces are hidden. NFT regulators have yet to be identified. Most alarmingly, the dominant NFT marketplaces are dangerously centralized. Accordingly, the publicized tales of exorbitant or manipulated NFT prices and frequent related scams abound. Meanwhile cryptocurrency—the technology enabling the life of an NFT—remains beset with, at best, theoretical models for effective regulation a full generation after its emergence.

To propose a rational start …

Optimizing Cybersecurity Risk In Medical Cyber-Physical Devices, Christopher S. Yoo, Bethany Lee

All Faculty Scholarship

Medical devices are increasingly connected, both to cyber networks and to sensors collecting data from physical stimuli. These cyber-physical systems pose a new host of deadly security risks that traditional notions of cybersecurity struggle to take into account. Previously, we could predict how algorithms would function as they drew on defined inputs. But cyber-physical systems draw on unbounded inputs from the real world. Moreover, with wide networks of cyber-physical medical devices, a single cybersecurity breach could pose lethal dangers to masses of patients.

The U.S. Food and Drug Administration (FDA) is tasked with regulating medical devices to ensure safety and …

Emerging Technology's Language Wars: Cryptocurrency, Carla L. Reyes

William & Mary Law Review

Work at the intersection of blockchain technology and law suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, legal researchers, lawmakers, researchers in the technical sciences, and the public all talk past each other, using the same words, but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates related to developing regulation in one specific area of the blockchain technology ecosystem: cryptocurrency. Using cryptocurrency …

Digital Asset Regulation: Peering Into The Past, Peering Into The Future, Kevin Werbach

William & Mary Law Review

Blockchain is often compared to the internet as a disruptive technology that will realign economic structures across the world. This analogy extends to law and regulation. Similar to internet-based services, digital assets raise a host of challenges for policymakers. They also pose general questions regarding the desirability and practicality of regulating decentralized systems. Such debates play out against a backdrop of concerns that regulatory action will chill innovation or push market activity to more tolerant jurisdictions. The story of internet policy in the late 1990s and early 2000s therefore provides important lessons for policymakers today when confronting digital assets. Two …

Defi: Shadow Banking 2.0?, Hilary J. Allen

William & Mary Law Review

The growth of so-called “shadow banking” was a significant contributor to the financial crisis of 2008, which had huge social costs that we still grapple with today. Our financial regulatory system still has not fully figured out how to address the risks of the derivatives, securitizations, and money market mutual funds that comprised Shadow Banking 1.0, but we are already facing the prospect of Shadow Banking 2.0 in the form of decentralized finance, or “DeFi.” DeFi’s proponents speak of a future where sending money is as easy as sending a photograph—but money is not the same as a photograph. The …

Regulating Crypto, On And Off The Chain, Eric D. Chason

William & Mary Law Review

Cryptocurrency had its most turbulent year in 2022. The collapse of TerraUSD ushered in a broad market decline, and the FTX debacle brought new publicity and scrutiny to crypto’s woes. Both events will likely spark new regulation and legislation.

Policymakers and regulators should regulate market structures like exchanges. While many cryptocurrencies are extremely transparent and require little if any additional disclosures, others are plagued by serious informational asymmetries. An exchange might allow participants to trade Bitcoin, and regulators need to protect investors who rely on such exchanges. Investors may face informational asymmetries regarding the operation and safety of the exchange. …

Regulation Of Algorithmic Tools In The United States, Christopher S. Yoo, Alicia Lai

All Faculty Scholarship

Policymakers in the United States have just begun to address regulation of artificial intelligence technologies in recent years, gaining momentum through calls for additional research funding, piece-meal guidance, proposals, and legislation at all levels of government. This Article provides an overview of high-level federal initiatives for general artificial intelligence (AI) applications set forth by the U.S. president and responding agencies, early indications from the incoming Biden Administration, targeted federal initiatives for sector-specific AI applications, pending federal legislative proposals, and state and local initiatives. The regulation of the algorithmic ecosystem will continue to evolve as the United States continues to search …

The Genie Is Out Of The De-Extinction Bottle: A Problem In Risk Regulation And Regulatory Gaps, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Once the province of horror films and fantasy, the idea of recreating extinct life forms is poised to move from science fiction to laboratories and from there to the world at large. While “de-extinction is not something that will take place tomorrow . . . scientists are making major advancements, and eventual success appears inevitable.” Spurred on by the burgeoning field of genetic engineering, it was only a matter of time before scientists turned their attention to recreating extinct life forms, either for the thrill of it or in atonement for the human role in the extinction process.

But science …

Optimizing Regulation For An Optimizing Economy, Cary Coglianese

All Faculty Scholarship

Much economic activity in the United States today emanates from technological advances that optimize through contextualization. Innovations as varied as Airbnb and Uber, fintech firms, and precision medicine are transforming major sectors in the economy by customizing goods and services as well as refining matches between available resources and interested buyers. The technological advances that make up the optimizing economy create new challenges for government oversight of the economy. Traditionally, government has overseen economic activity through general regulations that aim to treat all individuals equally; however, in the optimizing economy, business is moving in the direction of greater individualization, not …

Common Carriage’S Domain, Christopher S. Yoo

All Faculty Scholarship

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 …

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

All Faculty Scholarship

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.

Expanding Horizons: Scientific Frontiers, Legal Regulation And Globalization, Belinda Bennett

Indiana Journal of Global Legal Studies

In the six decades since the discovery of the double helix structure of DNA by Watson and Crick in 1953, developments in genetic science have transformed our understanding of human health and disease. These developments, along with those in other areas such as computer science, biotechnology, and nanotechnology, have opened exciting new possibilities for the future. In addition, the increasing trend for technologies to converge and build upon each other potentially increases the pace of change, constantly expanding the boundaries of the scientific frontier. At the same time, however, scientific advances are often accompanied by public unease over the potential …

New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo

All Faculty Scholarship

No abstract provided.

Towards A Differentiated Products Theory Of Copyright, Christopher S. Yoo

All Faculty Scholarship

The well-known “access-incentives” tradeoff that lies at the heart of the standard economic analysis of copyright follows largely from the assumption that copyright turns authors into monopolists. If one instead analyzes copyright through a framework that allows for product differentiation and entry, the access-incentives tradeoff becomes less significant. By increasing producer appropriability and profit, increased copyright protection can stimulate entry of competitors producing similar works, which in turn results in lower prices, increased product variety, and increased access. This approach would also broaden set of available policy instruments, although disentangling the effects of one from another can be quite complicated.