Law Commons^™

A Public Technology Option, Hannah Bloch-Wehba

Faculty Scholarship

Private technology increasingly underpins public governance. But the state’s growing reliance on private firms to provide a variety of complex technological products and services for public purposes brings significant costs for transparency: new forms of governance are becoming less visible and less amenable to democratic control. Transparency obligations initially designed for public agencies are a poor fit for private vendors that adhere to a very different set of expectations.

Aligning the use of technology in public governance with democratic values calls for rethinking, and in some cases abandoning, the legal structures and doctrinal commitments that insulate private vendors from meaningful …

Algorithmic Governance From The Bottom Up, Hannah Bloch-Wehba

Faculty Scholarship

Artificial intelligence and machine learning are both a blessing and a curse for governance. In theory, algorithmic governance makes government more efficient, more accurate, and more fair. But the emergence of automation in governance also rests on public-private collaborations that expand both public and private power, aggravate transparency and accountability gaps, and create significant obstacles for those seeking algorithmic justice. In response, a nascent body of law proposes technocratic policy changes to foster algorithmic accountability, ethics, and transparency.

This Article examines an alternative vision of algorithmic governance, one advanced primarily by social and labor movements instead of technocrats and firms. …

Content Moderation As Surveillance, Hannah Bloch-Wehba

Faculty Scholarship

Technology platforms are the new governments, and content moderation is the new law, or so goes a common refrain. As platforms increasingly turn toward new, automated mechanisms of enforcing their rules, the apparent power of the private sector seems only to grow. Yet beneath the surface lies a web of complex relationships between public and private authorities that call into question whether platforms truly possess such unilateral power. Law enforcement and police are exerting influence over platform content rules, giving governments a louder voice in supposedly “private” decisions. At the same time, law enforcement avails itself of the affordances of …

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 …

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 …

Automation In Moderation, Hannah Bloch-Wehba

Faculty Scholarship

This Article assesses recent efforts to encourage online platforms to use automated means to prevent the dissemination of unlawful online content before it is ever seen or distributed. As lawmakers in Europe and around the world closely scrutinize platforms’ “content moderation” practices, automation and artificial intelligence appear increasingly attractive options for ridding the Internet of many kinds of harmful online content, including defamation, copyright infringement, and terrorist speech. Proponents of these initiatives suggest that requiring platforms to screen user content using automation will promote healthier online discourse and will aid efforts to limit Big Tech’s power.

In fact, however, the …

Rise Of The Robot Lawyers?, Milan Markovic

Faculty Scholarship

The advent of artificial intelligence has provoked considerable speculation about the future of the American workforce, including highly educated professionals such as lawyers and doctors. Although most commentators are alarmed by the prospect of intelligent machines displacing millions of workers, this is not so with respect to the legal sector. Media accounts and some legal scholars envision a future where intelligent machines perform the bulk of legal work, and legal services are less expensive and more accessible. This future is purportedly at hand as lawyers struggle to compete with technologically savvy alternative legal service providers.

This Article challenges the notion …