Law Commons^™

A Scientific Approach To Tech Accountability, David Choffnes, Woodrow Hartzog, Scott Jordan, Athina Markopoulou, Zubair Shafiq

Faculty Scholarship

The Federal Trade Commission can only do so much to hold tech companies accountable. Enforcement agencies and the people they protect need help. One problem is that the inner workings of large organizations and complex algorithmically driven systems remain obscure and opaque while their privacy representations are voluminous and vague. In this Essay, we propose a scientific approach to tech accountability, where academic researchers can play a larger role in privacy policy. This approach involves surfacing a company’s privacy representations and statements, as well as measuring the actual behavior of their systems with respect to algorithms, user interfaces, and data …

The Legal Innovation Sandbox, Cristie Ford, Quinn Ashkenazy

All Faculty Publications

"The Legal Innovation Sandbox" examines a novel regulatory approach, called the innovation sandbox, in the context of the legal profession. The paper makes the claim that the “sandbox” regulatory model is in fact better suited to fostering innovation in the legal services arena than it is in the financial technology, or fintech, arena in which the sandbox concept developed. However, any effort to transplant a technique from one context to another needs to be carefully considered. This article is comparative across disciplines – financial regulation and legal services regulation – and across jurisdictions – covering the United Kingdom, the United …

Stark Choices For Corporate Reform, Aneil Kovvali

Articles by Maurer Faculty

For decades, corporate law scholars insisted on a simple division of responsibilities. Corporations were told to focus exclusively on maximizing financial returns to shareholders while the government tended to all other concerns by adopting new regulations. As reformers challenged this orthodoxy by urging corporations to take action on pressing social problems, defenders of the status quo have responded by suggesting that these efforts could be dangerous. In their view, internal corporate governance reforms could interfere with the adoption of external governmental regulations that would be more effective. The hypothesis that reformers face a stark choice between pursuing internal corporate changes …

Family Moves And The Future Of Public Education, Elizabeth Chu, James S. Liebman, Madeleine Sims, Tim Wang

Faculty Scholarship

State laws compel school-aged children to attend school while fully funding only public schools. Especially following the COVID-19 pandemic, this arrangement is under attack — from some for unconstitutionally coercing families to expose their children to non-neutral values to which they object and from others for ignoring the developmental needs of students, particularly students of color and in poverty whom public schools have long underserved. This Article argues that fully subsidized public education is constitutional as long as public schools fulfill their mission to model and commit people to liberal democratic values of tolerance and respect for all persons as …

Municipal Law—A Wedge In Climate Initiatives: How State Legislatures’ Preemption Of Local Government’S Role In Climate Change Policy And Arkansas’ Act 308 Of 2021 Are Misplaced., Travis Golliher

University of Arkansas at Little Rock Law Review

No abstract provided.

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

Let The Exceptions Do The Work: How Florida Should Approach Environmental Regulation After Cedar Point Nursery V. Hassid, Olivia Johnson

University of Miami Law Review

For nearly fifty years, courts distinguished between per se physical takings and regulatory takings. Yet, in 2021, the Supreme Court signaled a change of course with the monumental Cedar Point Nursery v. Hassid decision. The ruling challenges the government’s ability to mandate anything that impacts private property. In the face of environmental catastrophe and increasing pressure to assuage our climate crisis, how can governments respond without triggering a takings challenge?
Chief Justice Roberts in his majority decision may have left the door cracked open for governments to work around the Cedar Point Nursery ruling. By looking at the legacy of …

Special Purpose Acquisition Companies (Spacs) And The Sec, Neal Newman, Lawrence J. Trautman

Faculty Scholarship

Special Purpose Acquisition Companies (SPACs) are simply enterprises that raise money from the public with the intention of purchasing an existing business and becoming publicly traded in the securities markets. If the SPAC is successful in raising money and the acquisition takes place, the target company takes the SPAC’s place on a stock exchange in a transaction that resembles a public offering. Also known as “blank-check” or “reverse merger” companies, this process avoids many of the pitfalls of a traditional initial public offering.

During late 2020 and 2021 an unprecedented surge in the popularity and issuance of Special Purpose Acquisition …

The Environmental, Social, Governance (Esg) Debate Emerges From The Soil Of Climate Denial, Lawrence J. Trautman, Neal Newman

Faculty Scholarship

It has been almost six decades since Rachel Carson’s ominous warning of pending environmental disaster. During 2019 the United Nations requested urgent action from world leaders, given that “just over a decade is all that remains to stop irreversible damage from climate change.” With every passing year, damage resulting from destructive climate change causes increased pain, suffering, death and massive property loss. During 2020 and 2021 alone, severe weather events have included: destructive fires in California; record breaking freeze, power outage, and threat to the electrical grid in Texas; continuation of disruptive drought in U.S. Western states; and record-breaking high …

On Monopolistic Practices In Bitcoin: A Coded Solution: A Coded Solution, Sanya Samtani, Varun Baliga

Indian Journal of Law and Technology

The underlying values inherent in the creation of bitcoins are those of decentralization and accessibility. The horizontal power structure is an integral part of bitcoins’ architecture – this paper seeks to find a feasible alternative to status quo in order to preserve these characteristics. First, we look at the harms of monopolies and how the concentration of bitcoins is exceptionally harmful to its continued existence. Second, we expose the inadequacies of the existing regulatory frameworks, and discuss how status quo militates against the foundational ideology of bitcoin as a non-institutional cryptocurrency. Third, we undertake a comparative study of the existing …

Infrastructure Innovation In India: What Can Be Inferred From Eu Regulation?, Serge J.H. Gijrath

Indian Journal of Law and Technology

This article assesses the innovation policy objectives underlying the proposed EU Telecom Single Market (TSM) regulation considering disruptive technological developments and asks what the regulator in India can infer from such regulation. The paper explores the network operator’s dilemma of how to deal with investments in a time where fundamental innovation comes from outside, and the regulator’s dilemma of how to improve the conditions for access to the operators’ networks and safeguard a level playing field. The measures with respect to two technological developments: the deployment of 5G and the goal to ensure very high-speed broadband access in the EU …

Law And Technology: Two Modes Of Disruption, Three Legal Mindsets, And The Big Picture Of Regulatory Responsibilities, Roger Brownsword

Indian Journal of Law and Technology

This article introduces three ideas that are central to understanding the ways in which law and legal thinking are disrupted by emerging technologies and to maintaining a clear focus on the responsibilities of regulators. The first idea is that of a double disruption that technological innovation brings to the law. While the first disruption tells us that the old rules are no longer fit for purpose and need to be revised and renewed, the second tells us that, even if the rules have been changed, regulators might now be able to dispense with the use of rules (the rules are …

Intellectual Property And India’S Development Policy, Sudhir Krishnaswamy

Indian Journal of Law and Technology

As India wades into the 21st century, we are faced with a strategic choice about how we imagine and institutionalise new modes of regulation of access, control and production of information, knowledge and cultural resources. The rapid legislative activity on intellectual property, most recently the Patent (3rd Amendment) Act, 2005, has so radically shifted the goalposts of the debate that we are still to catch our breath! This essay is an exercise in deep breathing and careful reasoning to relieve us from our present breathless state.

The Case For Regulating Crypto-Assets, Jaideep Reddy

Indian Journal of Law and Technology

In July 2019, the Ministry of Finance, Government of India announced that an Inter-Ministerial Committee (the ‘Committee’) had submitted its report (the ‘Committee Report’) recommending that possessing or dealing with cryptocurrency be banned and made a criminal offence. This article examines whether such a ban is justified under our constitutional scheme. The article finds that the right to carry on various kinds of crypto-asset activities can be traced to various enumerated fundamental rights under the Constitution of India. Analyzing the Committee Report, the article finds that its recommendation of an outright ban is unlikely to be a reasonable restriction on …

It’S Raining Crypto: The Need For Regulatory Clarification When It Comes To Airdrops, Carol R. Goforth

Indian Journal of Law and Technology

Worldwide regulatory restrictions have pushed crypto entrepreneurs to take creative and novel approaches in their struggle to create viable user networks for new tokens. One of the most interesting vehicles for dispersing tokens is the ‘airdrop’, a process by which a developer essentially ‘gives away’ tokens. The developers’ motives in these airdrops are typically not completely altruistic. Instead, the goal is to increase the ‘buzz’ about new forms of crypto, and to encourage recipients to voluntarily promote the token that they now also own. The regulatory reaction to this technique has been mixed. A few nations, most notably China, have …

Legal Implications Of A Ubiquitous Metaverse And A Web3 Future, Jon M. Garon

Marquette Law Review

The metaverse is understood to be an immersive virtual world serving as the locus for all forms of work, education, and entertainment experiences. Depicted in books, movies, and games, the metaverse has the potential not just to supplement real-world experiences but to substantially supplant them. This Article explores the rapid emergence and evolution of the Web3 technologies at the heart of the metaverse movement. Web3 itself is a paradigmatic shift in internet commerce.

Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter

Faculty Publications

This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV …

Regulation Weakness And Lack Of Public Awareness Has Impeded The Implementation Of Environmental Policies In Saudi Arabia, Nada Gurmalla Algamdy

Dissertations & Theses

This research aimed to substantially illustrate that the weakness of environmental regulations and lack of public participation in urban planning alongside poor public awareness in Saudi Arabia has inhibited the implementation of environmental policies across this region. To study these issues, this research compared the Kingdom of Saudi Arabia (“KSA”) to the United States (“US”) building on numerous studies to illustrate how the identified weaknesses correlate with weak or ineffective environmental policies. It is well known that it would be better to use a European country “because it's known that the EU has tough environmental measures" as a model for …

Commentary On Consumer Protection Act, 2019, Ashok R. Patil

Books

The development of new technology in the form of e-commerce and the increasing integration of global markets and supply chains have changed the way consumers interact with the marketplace. This has given rise to new challenges for the consumer, and the existing consumer protection framework falls short in dealing with them. To address these concerns, the Consumer Protection Act, 2019, seeks to lay down a more robust scheme for consumer protection with the introduction of new measures such as the establishment of a general regulator, providing for a product liability regime, encouraging mediation, and developing appropriate regulations to protect and …

The Three Laws: The Chinese Communist Party Throws Down The Data Regulation Gauntlet, William Chaskes

Washington and Lee Law Review

Criticism of the Chinese Communist Party (CCP) runs a wide gamut. Accusations of human rights abuses, intellectual property theft, authoritarian domestic policies, disrespecting sovereign borders, and propaganda campaigns all have one common factor: the CCP’s desire to control information. Controlling information means controlling data. Lurking beneath the People’s Republic of China’s (PRC) tumultuous relationship with the rest of the world is the fight between nations to control their citizens’ data while also keeping it out of the hands of adversaries. The CCP’s Three Laws are its newest weapon in this data war.

One byproduct of the CCP’s emphasis on controlling …

Anticompetitive Merger Review, Samuel N. Weinstein

Articles

U.S. antitrust law empowers enforcers to review pending mergers that might undermine competition. But there is growing evidence that the merger-review regime is failing to perform its core procompetitive function. Industry concentration and the power of dominant firms are increasing across key sectors of the economy. In response, progressive advocates of more aggressive antitrust interventions have critiqued the substantive merger-review standard, arguing that it is too friendly to merging firms. This Article traces the problem to a different source: the merger-review process itself. The growing length of reviews, the competitive restrictions merger agreements place on acquisition targets during review, and …

Cafo’S Are A Public Health Crisis:The Creation Of Covid-19, Helena Masiello

University of Miami Law Review

Concentrated Animal Feeding Operations (“CAFO’s”) are largely unregulated by State or Federal Laws in the United States. As a result of this lack of oversight, they are a breeding ground for deadly infectious diseases. The COVID-19 epidemic has demonstrated the threat that diseases pose to the United State like H1N1, SARS, and Ebola.
The USDA needs to regulate CAFOs under the mandate given to them by congress in the AHPA to ensure that they are not the epicenter of the next wave of deadly infectious diseases. Scientists have been warning about the disease potential of CAFOs for the last decade, …

Laws And Norms With (Un)Observable Actions, Claude Fluet, Murat C. Mungan

Faculty Scholarship

We analyze the interactions between social norms, the prevalence of acts, and policies when people cannot directly observe actors’ behavior and must rely on noisy proxies. Norms provide ineffective incentives when acts are committed either very frequently or very infrequently, because noisy signals of behavior are then too weak to alter people’s beliefs about others’ behavior. This cuts against the dynamics of the ‘honor-stigma’ model (Bénabou and Tirole 2006; 2011), and leads to the opposite positive and normative conclusions with even modest errors. The review process through which public signals are provided is then an additional policy variable. When the …

An Automation Tax- Adopt With Caution, Vincent Ooi

Research Collection Yong Pung How School Of Law

The post highlights three main issues that may result from the rapid and widespread automation of jobs: 1) declining tax revenues; 2) inequitable distribution of gains and losses from automation; and 3) social costs of job displacement, such as social support and retraining programmes for displaced workers.An automation tax may be imposed on a temporary basis to manage (slow) the rate of displacement of workers due to the adoption of automation technologies, but should not be a permanent feature. Otherwise, there will be a risk of loss of competitiveness in the long-term, possibly resulting in even greater economic harm.One main …

The Anti-Money Laundering Framework For Precious Stones And Metals Dealers In Singapore, Vincent Ooi

Research Collection Yong Pung How School Of Law

Precious stones and metals have commonly been used throughout the world as a conduit for terrorism and money laundering activities. Such illicit use of these assets has called for its much-needed attention from a regulatory perspective. This is particularly relevant in a financial haven such as Singapore. Accordingly, this article seeks to explore how several of the most common trading and investment activities involving precious stones and metals in Singapore are regulated.

State Crypto Regulation: Competing Priorities Shaping Different Outcomes, John T. Bender

Seattle Journal of Technology, Environmental, & Innovation Law

“Cryptomania” is approaching fever pitch. Public officials, practitioners, and investors alike are becoming convinced that what began as a thought experiment has given rise to a full-fledged movement that is here to stay. This movement could potentially transform the modern financial system as we know it.

Today, crypto assets and related platforms are increasingly being adopted to store, secure, and transmit massive amounts of monetary value worldwide. Enforcement agencies like the Securities and Exchange Commission and the Commodity Futures and Trading Commission have ventured into the fray by employing existing legal regimes to regulate in this new frontier. At the …

A New Antitrust Framework To Protect Mom And Pop From Big Tech, Cara Macdonald

Journal of the National Association of Administrative Law Judiciary

While the economy declined during the COVID-19 pandemic, big technology companies like Amazon and Oracle experienced unprecedented growth and influence. Critics argue big technology companies are finding this level of success in-part due to anticompetitive practices. The crux of the debate rests on whether current, traditional antitrust laws are sufficient to cope with big technology companies. Some theorists argue that current laws are adequate, while others assert that antitrust laws are insufficient to regulate big technology companies because they are so different from the types of companies antitrust laws were designed to regulate. This article concludes that big tech companies …

Small Business Cybersecurity: A Loophole To Consumer Data, Matthew R. Espinosa

The Scholar: St. Mary's Law Review on Race and Social Justice

Small businesses and small minority owned businesses are vital to our nation’s economy; therefore legislation, regulation, and policy has been created in order to assist them in overcoming their economic stability issues and ensure they continue to serve the communities that rely on them. However, there is not a focus on regulating nor assisting small businesses to ensure their cybersecurity standards are up to par despite them increasingly becoming a victim of cyberattacks that yield high consequences. The external oversight and assistance is necessary for small businesses due to their lack of knowledge in implementing effective cybersecurity policies, the fiscal …

Up In Smoke: Why Regulating Social Media Like Big Tobacco Won’T Work (Yet!), Ian Mckay

Notre Dame Law Review

Lawmakers, pundits, and tech executives’ assertion that social media should be regulated like tobacco in order to protect American teenagers is oversimplistic. While the comparison makes for a good sound bite for the press, the argument disregards the inherent differences between regulating a physical product that has no constitutional protection and a virtual product that can implicate both users’ and social media companies’ First Amendment rights. This paper will identify and analyze some of the main pillars of the tobacco regulatory scheme and apply them to social media products. In Part I, I will define social media and provide a …

The Regulation Of Foreign Platforms, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In August 2020, the Trump Administration issued twin executive orders banning tech platforms TikTok and WeChat from the United States. These were not the first actions taken by the Trump Administration against Chinese tech platforms. But more than any other, the ban on TikTok sparked immediate outrage, confusion, and criticism.

This Article offers a new framework for thinking about national security restrictions on foreign tech platforms. A growing body of scholarship draws on principles from regulated industries, infrastructure industries, and public utilities to show how the regulation of tech platforms is not only viable but also has significant precedent and …