Law Commons^™

Governance In The Absence Of Government, Tracy Hresko Pearl

Faculty Articles

Artificial intelligence (AI) is advancing at an unprecedented pace, with generative systems exerting growing influence over social, economic, and political life. While Al offers opportunities for innovation and efficiency, it also poses risks ranging from misinformation and job displacement to existential threats if highly autonomous systems evade human control. Across industry, government, and civil society, there is broad consensus that Al requires oversight.

Yet traditional U.S. regulatory approaches face six significant barriers: (1) technology outpacing legislation, (2) limited Al expertise among policymakers, (3) regulatory capture, (4) political gridlock, (5) outdated governance structures, and (6) the inherent complexity of Al. Combined …

Breaking Down Broken Banks: The Case For A New Regulatory And Supervisory Framework, Federico Curbelo

St. John's Law Review

(Excerpt)

Bank failures are systemic breakdowns in regulatory and supervisory frameworks that threaten the financial bedrock of the United States economy and can potentially cause panic and contagion to the broader banking sector. Although banks function as standalone institutions, when one bank fails, it often takes down others with it. Silicon Valley Bank (“SVB”) was one such bank whose failure temporarily destabilized a whole sector and prompted important questions about the effectiveness of the current financial regulation and supervision scheme.

This Note argues that the current regulatory and supervisory categorization scheme that the Federal Reserve uses to keep banks in …

Controlling Private Economic Power: Lessons Learned From The Us Experience In The First Decades Of The 20th Century, Thierry Kirat, Frédéric Marty

Yearbook of Antitrust and Regulatory Studies

Concerns related to Big Techs have led to a proliferation of legislative initiatives to complete competition rules with regulatory devices that would lead gatekeepers to be subject to obligations to preserve an equality of opportunities on the market. Within this context, this contribution revisits American decision-making practice from the end of the 19th century and the beginning of the 20th century to show how regulatory-type interventions and the enforcement of competition rules have been activated to control the strategies of firms acting as gatekeepers. What we can learn from this experience is that a big firm having private regulatory power …

Trying Typicality—Plaintiff Cherry-Picking And Trial Distortion In Ramirez V. Transunion Llc And Beyond, Daniel Esses

San Diego Law Review

This Article supplements scholarly commentary on the U.S. Supreme Court’s 2021 decision in TransUnion LLC v. Ramirez by examining some critical issues that the underlying litigation in the lower courts raised but that the Supreme Court did not address in its review. Although scholars have analyzed and critiqued the Supreme Court’s Ramirez decision, the litigation as a whole has been neglected. The Ramirez trial and the Ninth Circuit opinions that preceded Supreme Court review are fertile vehicles for reflecting on important issues that arise when class actions are tried to a jury.

The Article argues that Ramirez illustrates a problem …

The Problem Of Market Power In Postwar America: Antitrust Law, Regulatory Discourse, And Changing Ideas Of Market Power, Laura Phillips-Sawyer

Scholarly Works

US antitrust law prohibits anticompetitive restraints of trade, including collusion among firms and single-firm monopolization. The law serves as a democratic check against concentrations of private economic power. However, in the post-World War II era, the law has changed largely through case law, rather than through statutory interventions. Thus, understanding the role that antitrust law has played in reconciling capitalism and democracy requires us to ask what has influenced changes to antitrust law. This chapter traces antitrust law’s postwar development across three key periods: 1940–1970s, mid-1970s to 2010s, and 2010s to present. It argues that each era’s approach to the …

From ‘Gig Work’ To Algorithmically Mediated Work: Shifting The Focus To Technological Control In Work Regulation, Jasoon Chelat

Indian Journal of Law and Technology

Platform-based work is finding a place in legislative instruments in India in recent years, under the Code on Social Security, 2020, as well as state-level legislations. In this paper, I argue that these efforts to extend protections to gig or platform work are limited in their understanding of the way work is shaped by digital technologies both within and outside of platforms. Platform-based work regulation seems to have skipped a step: the regulatory discourse has moved on to a welfare-focused model present in informal work, without examining existing jurisprudence on worker rights relevant to digitally mediated work. These legislative instruments …

In The Pursuance Of A Robust Legal Framework To Address Deepfake Harms: An Analysis Of The Indian Legal Discourse, Jyothsna Gurumurthy

Indian Journal of Law and Technology

A common issue we face in the field of law and technology is the constant game of catch-up that the law is required to play to keep up with advances in technology. Deepfake Technology (primarily based on generative adversarial networks, as explored in this article) exemplifies this game of catch-up and provides a fertile ground for academics and regulators/law makers to explore and understand what it means for a technology regulating law or rule to be robust and enforceable. By examining the judicial handling of deepfake claims within a publicity rights discourse in India, this article suggests the adoption of …

Ai Regulation: Competition, Arbitrage & Regulatory Capture, Filippo Lancieri, Laura Edelson, Stefan Bechtold

Georgetown Law Faculty Publications and Other Works

The commercial launch of ChatGPT in November 2022 and the fast development of large language models have catapulted the regulation of artificial intelligence to the forefront of policy debates. A vast body of scholarship, white papers, and other policy analyses followed, outlining ideal regulatory regimes for AI. The European Union and other jurisdictions have moved forward by regulating AI and LLMs. One overlooked area is the political economy of these regulatory initiatives—or how countries and companies can behave strategically and use different regulatory levers to protect their interests in the international competition on how to regulate AI.

This Article helps …

Improving Distributional Analysis In Regulatory Evaluation: An Assessment Of The 2023 Circular A-4, W. Kip Viscusi, A. Fraas, John D. Graham, Kerry Krutilla, Randall Lutter, Jason F. Shogren

Vanderbilt Law School Faculty Publications

The November 2023 revision to OMB Circular A-4 expands upon past guidance on distributional assessment in regulatory impact analysis and adds new options for conducting it, such as the use of distributional weights based on the marginal utility of income. This note explores the implications of key changes suggested in the 2023 guidelines and addresses modeling and data challenges that could yield recommendations for future revisions. We suggest that progress in improving distributional assessment in regulatory impact analysis is most likely if federal agencies collaborate with the National Science Foundation to produce model distributional analyses for different types of regulations.

Dark Patterns As Disloyal Design, Johanna Gunawan, Woodrow Hartzog, Neil Richards, David Choffnes, Christo Wilson

Faculty Scholarship

Lawmakers have started to regulate “dark patterns,” understood to be design practices meant to influence technology users’ decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them.

In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack …

Dark Patterns As Disloyal Design, Johanna Gunawan, Woodrow Hartzog, Neil Richards, David Choffnes, Christo Wilson

Indiana Law Journal

Lawmakers have started to regulate “dark patterns,” understood to be design practices meant to influence technology users’ decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them.

In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack …

Beautiful Means For Nefarious Ends, Eric Wahoff

Notre Dame Journal of International & Comparative Law

This note will attempt to address the laws of art dealers and banks in a way that draws parallels with the past struggles of banks and today’s struggle in the art world to keep bad actors out. It will begin with surveying how art is currently used as a tool of criminals and the current regulatory regimes in the EU, New York, and California – the states with the most art brokers.Then the note will analyze relevant laws from the US banking industry. Finally, the note will discuss ways that banking laws that have been used to address money -laundering …

Law School News: Better Than He Found It 4-24-2025, Danna Lorch, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Fluctuations In Environmental Policy: An Example For Why Not To Despair, Seattle T. Schuessler

Whittier Scholars Program

This paper explores the historical and contemporary fluctuations in environmental policy within the United States. Emphasizing the role of political polarization in shaping legislative and regulatory outcomes within environmental policy. Through a chronological analysis of environmental policy, through legislation such as the Clean Air Act and Clean Water Act, to the changing agendas of presidential administrations, the paper demonstrates that environmental protection has progressed upward in a fluctuating manner. Despite eras of regulatory rollbacks and administrative opposition, particularly during conservative presidencies, the overall trends indicate enduring support for environmental legislation. The paper further investigates the implementation challenges of California Senate …

Menstrual Justice After Dobbs, Margaret E. Johnson

All Faculty Scholarship

This Article identifies and analyzes the category of state and private regulation that is invisible and subordinates women and other menstruators in ways that impact their privacy, liberty, and equality. Because this category of regulation is pervasive, bringing it to light is critical for considering how best to curb its harm. This Article considers potential legal strategies to counter such menstruation regulation and argues that Dobbs v. Jackson Women’s Health Organization offers some promise—but more cause for pessimism—regarding the U.S. Constitution’s power to do so. This Article therefore explains how subconstitutional law offers greater potential, while cautioning that political science …

Science And Causality In Technology Litigation, J. Nathan Matias, Jonathon W. Penney

Articles & Book Chapters

No abstract provided.

The Renaissance Of Private Law, Yotam Kaplan, Adi Libson, Gideon Parchomovsky

Northwestern University Law Review

Crisis is the new normal. Between global warming, the opioid pandemic, bursts of gun violence, and political instability fueled by fake news, it is hard to remember a time when we were not facing a major catastrophe. Still more troubling, there is a growing sense that our political and regulatory institutions are faltering in their ability to offer effective responses to the incoming crises. The rapid pace at which new problems emerge—together with growing political polarization—stymies regulatory and legislative action, resulting in an inability to address contemporary challenges.

Against this gloomy background, we posit an unlikely hero: private law. Recent …

The Incremental Development Of An Extra-Statutory System Of Regulation: A Critique Of Food And Drug Administration Regulation Of Added Poisonous And Deleterious Substances, James David Poliquin

Maine Law Review

Federal regulation of added poisonous and deleterious substances in food by the Food and Drug Administration has become an administrative quagmire. Although responsibility for this situation evades precise assignment, FDA regulatory problems typically arise through the operation of three factors. First, the applicable statutory provisions are highly ambiguous, far exceeding the level of ambiguity traditionally viewed as necessary to administrative flexibility and efficiency. Even resort to the legislative history of these provisions often leaves many questions unanswered. Second, the perpetual amendment of the original Federal Food, Drug, and Cosmetic Act without the simultaneous repeal of all the inapplicable and inconsistent …

Tomorrow’S Climate Law, Today, Daniel E. Walters

Faculty Scholarship

The prospects for domestic legislation or international treaties that would require governments, businesses, and individuals to stop emitting the greenhouse gases that cause global climate change are particularly bleak these days. Even as the United States has recently passed its most ambitious climate legislation to date in the Inflation Reduction Act and related “green industrial policy” legislation, these successes were ultimately a compromise with politicians who refused to consider more direct controls on emissions. Assuming they survive the second Trump Administration, the green subsidies and nudges contained in these laws, coupled with a groundswell of private environmental governance, will do …

21st Annual Diversity Symposium Dinner 2025, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Deepfakes And Shallow Laws: Regulating Distorted Narratives In The Political Cyberspace, Shimona Mohan, Sarthak Wadhwa

Indian Journal of Law and Technology

With a sizable section of the global population witnessing electoral churn, protests, and resistance movements in the past couple of years, this is clearly a watershed moment for modern democracies vis-à-vis technological advancements. Electoral canvassing in these democracies has expanded its footprint in the digital space, be it through social media or navigating the general contours of anonymity, engagement, and misinformation that govern our online worlds. In this context, the advent of deepfakes in the recent past, and the exponential evolution of the technology both for outreach and disruption, has invited acute regulatory attention and intervention. However, traditional policy design …

Moral Panic Or Public Health Crisis? Lessons From Drugs And Gambling For “Addictive” Design, Matthew B. Lawrence, Haomin (Kevin) Yan

Seattle University Law Review

Alcohol, automobiles, guns, lottery, loot boxes, meat, music, opioid painkillers, processed foods, prop bets, slot machines, television, tobacco, violent video games. Over the last century each of these has been subject to concerns—some might even say “moral panics”—from parents and policymakers about avoidable harms to kids and adults. In some cases we look back with the benefit of hindsight and dismiss those concerns as naïve or moralistic. In others we look back at them as justified or as having come too late to check an expanding industry before it did unfathomable harm while growing so powerful that it became all …

Let The Sunshine In: Crafting Constitutional Transparency Regulations For Content Moderation, Caitlin Ring Carlson

Seattle University Law Review

In response to public concern about the impact of social media, legislators in some U.S. states have developed laws to regulate the process of content moderation. Many include mandatory transparency and disclosure requirements, some of which courts have already deemed an unconstitutional infringement on social media platforms’ right to free expression. This article explores the parameters for crafting constitutional social media transparency regulations using existing U.S. media policy and insights from recent legal challenges. The resulting analysis identifies content neutral transparency requirements that mandate the disclosure of purely factual, non-controversial information as those most likely to withstand judicial scrutiny. Specifically, …

This Is Not A Game: The Addictive Allure Of Digital Companions, Nizan Geslevich Packin, Karni Chagal-Feferkorn

Seattle University Law Review

Artificial Intelligence (AI) agents have become an inescapable part of modern childhood, reshaping education, leisure activities, entertainment, and social interaction. From AI-powered tutors that adapt to individual learning styles to emotionally responsive chatbots that simulate human companionship, these systems promise unprecedented personalization, cognitive stimulation, and social support. However, these benefits mask significant risks that remain unregulated and inadequately addressed.

Although adults are also susceptible to forming deep emotional bonds with AI companions—often trusting them as if they possessed genuine understanding and empathy—children are particularly vulnerable. Their misplaced trust can more severely distort social development, weaken critical thinking, and foster unhealthy …

How Active Cftc Enforcement Could Benefit Crypto, Carol R. Goforth

Pace Law Review

Commodity Futures Trading Commission (CFTC) crypto enforcement rose to record levels in 2023, prompting applause from some observers and criticism from others. In fact, the CFTC’s enforcement agenda is not out of step with other federal agencies such as the Securities and Exchange Commission (SEC), which has also been incredibly active in the crypto industry. It might seem that this is bad news for crypto, given that both the CFTC and SEC have been angling to become the primary regulator for these new assets. In reality, proof that the CFTC is active in enforcing the law against crypto entrepreneurs and …

Locational Data And The Public Interest, William A. Herbert, Micahel Goodchild, Richard Appelbaum, Jeremy Crampton, Gary Langham, Krzysztof Janowicz, Mei-Po Kwan, Katina Michael, Lisa Schamess

Publications and Research

This article presents a paper developed by the AAG Organizing Committee on Locational Information and the Public Interest through a summit held in Santa Barbara, California in June 2022. The summit resulted in goals and ideas for addressing the issues that arise from the present environment for geodata, whereby public, private, and third-sector entities can tap into publicly available locational information with relatively little regulation on its access or use. The Committee articulates four goals: (1) develop a research agenda extending across disciplines, (2) outline educational resources and strategies to guide ethical practice, (3) devise a pathway to increase public …

Antitrust & The Immoral Energy Economy, Kristen Van De Biezendos

Faculty Scholarship

The age of climate change is upon us, but regulations and programs intended to decarbonize the electricity sector have been effectively stymied by utilities defending their monopoly power. The lack of robust antitrust enforcement against the utilities to date is a result of the belief that regulation is sufficient to police monopoly anticompetitive activity, that the natural monopoly structure of utilities makes them a poor fit for antitrust principles, and that the utilities are immune from Sherman Act claims under the state action exemption. But both rationales reflect a misunderstanding of the purpose of public utility law and its preference …

Third-Party Funding In Treaty-Based Arbitration: Towards A More Transparent And Responsible System?, Margie-Lys Jaime R.

Arbitration Brief

Third-Party Funding (“TPF”) has become the “new kid on the block” of long-established stakeholders in international arbitration. However, despite the increasing use of TPF, few countries have undertaken the task of regulating the intervention of funders. Even in countries where the practice of TPF is regulated, it is generally in codes of conduct or non-binding instruments.

“There Is No Fashion On A Dead Planet:”1 How A Mandatory Reporting Directive Shared By The Us And The Eu And Centered On Transparency Could Be The First Step To Increased Sustainability In The Fashion Industry, Adrienne Redman

Northwestern Journal of International Law & Business

The fashion industry hangs on self-expression and individualism, yet our methods of consumption and their resulting environmental impacts are far from an individualistic concern. This paper examines the global fashion industry’s substantial contribution to pollution, resource-depletion, and waste as evidence that the self-regulation model is insufficient to curb the environmental footprint of the industry. Self-regulation presumes that consumer awareness and the desire to purchase sustainably will be enough to limit the industry’s environmental impact. However, this presumption is undermined by a lack of standardized and enforceable regulations necessary for consumer-decision making. Instead, greenwashing and deceptive environmental claims have pervaded the …

The Intersection Of Regulation, Quality Care Delivery, And Ethics And Compliance: Look Carefully Before Crossing!, David R. Hoffman, Ilene Warner-Maron

Saint Louis University Journal of Health Law & Policy

Quality and compliant care delivery in nursing homes remains elusive. Four main interests are currently misaligned, thereby putting nursing home residents at risk of harm. Without a clearly defined commitment to quality and compliant care and alignment of these interests, nursing home residents will remain vulnerable to severe harm.

The first key interest concerns nursing home ownership and management. Currently, over seventy percent of nursing homes are owned by for-profit entities. Previous ownership models, including non-profit, religious-based, and county-owned facilities, have largely closed or transitioned to for-profit entities. The shift in ownership significantly impacts quality and compliant care delivery. Unfortunately, …