Law Commons^™

Between Risk Mitigation And Labour Rights Enforcement: Assessing The Transatlantic Race To Govern Ai-Driven Decision-Making Through A Comparative Lens, Valerio De Stefano, Antonio Aloisi

Articles & Book Chapters

In this article, we provide an overview of efforts to regulate the various phases of the artificial intelligence (AI) life cycle. In doing so, we examine whether—and, if so, to what extent—highly fragmented legal frameworks are able to provide safeguards capable of preventing the dangers that stem from AI- and algorithm-driven organisational practices. We critically analyse related developments at the European Union (EU) level, namely the General Data Protection Regulation, the draft AI Regulation, and the proposal for a Directive on improving working conditions in platform work. We also consider bills and regulations proposed or adopted in the United States …

Regulating The Risks Of Ai, Margot E. Kaminski

Publications

Companies and governments now use Artificial Intelligence (“AI”) in a wide range of settings. But using AI leads to well-known risks that arguably present challenges for a traditional liability model. It is thus unsurprising that lawmakers in both the United States and the European Union (“EU”) have turned to the tools of risk regulation in governing AI systems.

This Article describes the growing convergence around risk regulation in AI governance. It then addresses the question: what does it mean to use risk regulation to govern AI systems? The primary contribution of this Article is to offer an analytic framework for …

Public Nuisance As Risk Regulation, Thomas W. Merrill

Faculty Scholarship

Public nuisance has always been defined in terms of the object of protection – the community, the public, or perhaps even the state as a whole. Public nuisance in this regard has been juxtaposed to private nuisance, which protects individual persons and their use and enjoyment of land. Commentary on public nuisance has thus long been concerned with defining (without notable success) what it means to advance a public as opposed to a private right.

In this paper, I offer a different take on the function of public nuisance. The common law is designed to provide redress for actual harm, …

The Law And Economics Of Risk Regulation, Cary Coglianese

All Faculty Scholarship

Law plays a central role in the management of risk in society. The rules adopted by regulatory agencies now affect nearly every facet of the economy, and as such regulation has motivated a substantial body of academic research. Law and economics research on regulation has, first, demonstrated the normative justification for governmental intervention in the marketplace based on the concept of market failure. Second, political economy research on regulation has shown how, as a positive matter, interest groups, political movements, and public pressure affect the stringency of such regulation, sometimes more than any normative rationale for regulation. Third, risk regulation …

Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation claims as part of their justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald J. Trump, …

Virtual Competition The Rise Of Unchallenged Collusion And Discrimination?, Maurice Stucke, Ariel Ezrachi

College of Law Faculty Scholarship

No abstract provided.

The Rule Of Law In The Technological Age Challenges And Opportunities For The Eu Collected Papers, Maurice Stucke

Scholarly Works

No abstract provided.

Law, Environment, And The “Nondismal” Social Sciences, William Boyd, Douglas Kysar, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Over the past 30 years, the influence of economics over the study of environmental law and policy has expanded considerably, becoming in the process the predominant framework for analyzing regulations that address pollution, natural resource use, and other environmental issues. This review seeks to complement the expansion of economic reasoning and methodology within the field of environmental law and policy by identifying insights to be gleaned from various “nondismal” social sciences. In particular, three areas of inquiry are highlighted as illustrative of interdisciplinary work that might help to complement law and economics and, in some cases, compensate for it: the …

Serial Litigation In Administrative Law: What Can Repeat Cases Tell Us About Judicial Review, Gillian E. Metzger

Faculty Scholarship

In Deference and Dialogue in Administrative Law, Emily Meazell takes up the topic of serial administrative law litigation. These repeated rounds of challenges and remands, which Meazell finds are particularly prevalent in contexts of risk regulation, provide a new lens on court-agency relationships. Meazell closely reviews several instances of such litigation, spanning topics as diverse as endangered species, potential workplace carcinogens, and financial qualifications of nuclear plant operators. She argues that such close examination reveals a process of dialogue, with agencies ultimately (if not immediately) responding to judicial concerns and courts in turn acknowledging administrative responses.

The One Percent Problem, Kevin M. Stack, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Parties frequently seek exemption from regulation on the ground that they contribute only a very small share to a problem. These one percent arguments are not inherently questionable; it can be efficient to exclude relatively small contributors. These arguments for exemption garner broad acceptance in part because they appeal to behavioral biases that induce individuals to discount or ignore small values. But when a regulatory problem can be solved only by regulating small contributors, accepting one percent arguments creates what we call the one percent problem. This Article shows that this general problem for regulation has particularly damaging effects on …

Risk, Everyday Intutions, And The Institutional Value Of Tort Law, Govind C. Persad

Sturm College of Law: Faculty Scholarship

This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. The second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how …

Diverse Conceptions Of Emotions In Risk Regulation, Peter H. Huang

Publications

No abstract provided.

Why De Minimis?, Matthew D. Adler

All Faculty Scholarship

De minimis cutoffs are a familiar feature of risk regulation. This includes the quantitative “individual risk” thresholds for fatality risks employed in many contexts by EPA, FDA, and other agencies, such as the 1-in-1 million lifetime cancer risk cutoff; extreme event cutoffs for addressing natural hazards, such as the 100-year-flood or 475-year-earthquake; de minimis failure probabilities for built structures; the exclusion of low-probability causal models; and other policymaking criteria. All these tests have a common structure, as I show in the Article. A de minimis test, broadly defined, tells the decisionmaker to determine whether the probability of some outcome is …

The Second National Risk And Culture Study: Making Sense Of - And Making Progress In - The American Culture War Of Fact, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen

GW Law Faculty Publications & Other Works

Cultural Cognition refers to the disposition to conform one's beliefs about societal risks to one's preferences for how society should be organized. Based on surveys and experiments involving some 5,000 Americans, the Second National Risk and Culture Study presents empirical evidence of the effect of this dynamic in generating conflict about global warming, school shootings, domestic terrorism, nanotechnology, and the mandatory vaccination of school-age girls against HPV, among other issues. The Study also presents evidence of risk-communication strategies that counteract cultural cognition. Because nuclear power affirms rather than threatens the identity of persons who hold individualist values, for example, proposing …

Did Nepa Drown New Orleans? The Levees, The Blame Game, And The Hazards Of Hindsight, Thomas O. Mcgarity, Douglas A. Kysar

Cornell Law Faculty Publications

This Article highlights the hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were "caused" by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers' hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the …

It Might Have Been: Risk, Precaution, And Opportunity Costs, Douglas A. Kysar

Cornell Law Faculty Publications

This Article, which is part of a larger project on the competing merits of cost-benefit analysis (CBA) and the precautionary principle (PP) as competing policymaking paradigms for environmental, health, and safety regulation, examines one specific plank of the case against the PP: the claim that the principle's ignorance of the opportunity costs of precaution leads to indeterminate or impoverishing policy advice. Because PP defenders emphasize the limits of human knowledge and the frequency of unpleasant surprises from technology and industrial development, they prefer an ex ante stance of precaution whenever a proposed activity meets some threshold possibility of causing severe …

The Case Against Smoking Bans, Thom Lambert

Faculty Publications

In recent months, numerous localities and states have banned smoking in public places (i.e., privately owned places to which members of the public are invited). Such sweeping bans are typically justified on grounds that they alleviate externalities, shape individuals' preferences in a desirable manner, and reduce risks. This essay rebuts the externality, preference-shaping, and risk-reduction arguments for smoking bans and contends that such bans are unnecessary and, on the whole, utility-reducing.

Controlling Toxic Harms: The Struggle Over Dioxin Contamination In The Pulp And Paper Industry, William Boyd

Publications

This essay addresses the challenges of controlling toxic harms through an intensive case study of efforts to regulate and remedy dioxin contamination in the U.S. pulp and paper industry. By focusing on the struggle to control a specific toxic harm in a specific industrial sector, the essay explores the politicized nature of toxic harms in the United States and, in the process, highlights the considerable shortcomings of existing legal frameworks and institutions for dealing with problems of such scope and complexity. In doing so, the essay raises a host of normative issues regarding current institutional arrangements and the appropriate strategy …

Risky Business, Michael S. Baram

Faculty Scholarship

In prior studies by high-level commissions, emphasis was given to improving the scientific basis and institutional procedures for risk assessment and risk regulation within existing statutory frameworks. Recommendations have led to slow but steady progress. This study is considerably different. It emphasizes a public health approach for efficient use of resources in a new flexible framework for risk management, reductionist approaches to risk assessment and characterization, increased public involvement, and various methods for managing such public involvement. It provides a mix of aspirations and concepts, procedures, and "shop floor rules" for putting the new system of risk management into practice. …

Equivalent Frames Of Reference For Judging Risk Regulation Policies, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Although the design of risk regulations has not yet attained what might be termed the economist's ideal of maximizing the difference between benefits and costs, substantial progress has been made in the design of regulatory policy. When the risk regulation agencies began their efforts in the early 1970s, there was widespread concern that something needed to be done to address the important risks that society faces. The substantial optimism with respect to our technological capabilities in reducing risk may have led to a failure to recognize the limits of our risk regulation ventures. Over time, there has been increasing emphasis …

Are Individuals Bayesian Decision Makers?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

There has been increasing interest in whether normative models of individual choice under uncertainty accord with actual behavior. These concerns have been much greater than in other economic contexts because of the particularly severe demands such decisions place on the rationality of the decision maker. The limitations of these decisions have widespread consequences, as they provide the rationale for many governmental efforts to regulate the risks people face. Here I explore the issues raised by a Bayesian decision framework, focusing particularly on my analyses of worker and consumer behavior.