Faculty Publications

How does the legal profession understand new technology? Lawyers are involuntary experts in technology: we are not professionally trained in technology like engineers are but must know technology better than the typical citizen does, because the law must regulate how the typical citizen--that is, society--uses technology. The increasing complexity and variety of technologies that affect everyday life, such as artificial intelligence (AI), make our jobs as involuntary experts in technology all the more important. To prepare lawyers to regulate technology effectively, we must first examine how lawyers understand (or misunderstand) technology in the present.

This Article examines a cognitive shortcut for understanding new technology that comes naturally to the legal profession but induces both practitioners and academics to misperceive technology and warps outcomes in both procedural and substantive law. This error, which I call the faster horse fallacy, refers to misunderstanding a new technology as identical to an old one, only cheaper and performing better. While cars and horses can both haul people or cargo, a car is not a faster equivalent of a horse because cars have features that horses lack, meaning that cars create problems that horses do not. The fallacy causes scholars to view AI-assisted discovery as a faster and cheaper version of human-centric review, thereby distorting litigation outcomes. The fallacy also causes courts to perceive email as a faster and cheaper equivalent of mail, which undermines the right to notice, and causes regulators to present electric vehicles as cleaner and cheaper equivalents of gasoline cars, which exposes motorists to new safety risks.

Like many legislative acts in the United States, election laws are subject to judicial review, often by unelected judges with life tenure. This precipitates what Jacob Eisler calls the counterpopular dilemma. If the laws governing self-rule are dictated by courts that are unaccountable to the people--in the case of Article III judges, by design--they intrude upon democratic autonomy. But without arbiters who are resistant to popular pressure, elections can end up facilitating a mob rule or a tyranny in democratic disguise by enabling elites to manipulate democratic procedures for their own political gain. How, then, can judicial review of election laws be reconciled with democratic self-government?

Eisler's book, The Law of Freedom: The Supreme Court and Democracy, provides a novel understanding of, and solution to, the counterpopular dilemma. According to Eisler, the counterpopular dilemma “is intractable” if the judicial role in elections is understood in conventional terms: “uniquely positioned outside typical political struggles, and thus especially well-suited to guarantee fair elections.” Instead of limiting freedom, courts should be viewed as advancing freedom, in two conflicting forms. The egalitarian view of freedom “seeks to afford all constituents equal opportunity to freely participate in self-rule.” Thus, the egalitarian view “demands some ‘levelling’ of inequities” that influence elections by, for example, limiting campaign spending. The libertarian view “prioritizes protecting individuals from state intrusion.” Thus, the libertarian view is that “state regulation of campaign finance ... interfere[s] with personal liberty.” By casting the Supreme Court's election law jurisprudence as a *75 debate over how best to advance constituent freedom, Eisler provides a much-needed understanding of the Court as an institution in service of a common good--at a time when voters see it as motivated by political expediency, and rising public contempt is becoming an existential threat to judicial authority. I argue that, for Eisler's theoretically illuminating perspective to become an operationally useful framework for delineating the courts' role in elections, it must provide an objectively discernible standard for what constitutes a “minimal,” and thus tolerable, counterpopular intrusion into electoral design.

This Article uses the Digital Markets Act (DMA), which took effect in the European Union on November 1, 2022, to demonstrate the neo-Brandeisian antitrust movement's most fundamental problem: it has not yet shown why its proposals are necessary to accomplish its stated goals.

What are “traditional” districting criteria? The meaning of that term is critical to curbing abusive districting practices because adherence to traditional criteria grants districting plans a prima facie impression of constitutionality and serves as a defense to racial gerrymandering. Yet, the Supreme Court has never intelligibly defined “traditional” criteria or their indicative qualities. Exploiting this silence, various actors are attempting to define that term for their own interests, usually at the expense of the public’s. For example, legislatures pushing redistricting plans that would advantage certain parties or incumbents claim that those districting goals are “traditional”—and thus legally protected—by citing anecdotal examples of a state having used them.

We propose a definition of “traditional” districting criteria that would reduce such abuse and adhere to a widely understood meaning of that word: accepted as standard practice. Under this alternative, which we call the empirical definition, a criterion is “traditional” if a majority of states require or allow it and fewer than a quarter prohibit it in state constitutions, statutes, or legislative guidelines. This definition would not only curb abusive districting but also reduce the influence of undesirable judicial activism by binding judicial discretion to an objectively discernible definition of “traditional” criteria.

This Article identifies a choice of law loophole that corporations can exploit to commit interstate torts against individuals without paying damages—by inducing victims to sue in a state where they are guaranteed to lose. The Second Restatement effectively requires plaintiffs bringing interstate tort claims to allege which state has the most significant relationship to their injury, because most federal courts rely on plaintiffs’ allegations to choose a state law for the purpose of resolving motions to dismiss. However, when torts are committed over state lines (for example, over the internet), plaintiffs can be misinformed or misled as to where the tortious conduct really occurred, even if their knowledge of how they were harmed is otherwise correct. Therefore, if a plaintiff is induced to sue under a wrong state’s law, she would waste years litigating only to lose, even if her claims are meritorious. Her complaint would survive a motion to dismiss because her allegations are plausible, but it would be dismissed at discovery, where it would become apparent that her injury originated in a state other than the one she alleged.
This Article has two objectives. First, I show how corporations committing torts remotely can profit from this loophole, using a game-theoretic model and a Third Circuit case in which a corporate defendant apparently misrepresented to the court and plaintiffs the state where the alleged tort originated, resulting in the plaintiffs’ complaint surviving a motion to dismiss but being dismissed after discovery years later. I argue that, if corporations use this loophole often enough, tort victims would be deterred from suing for fear that they would waste years trying cases they are effectively guaranteed to lose. Thus, once a corporation has built a reputation that it will use the loophole, it could commit torts without paying damages or even having to litigate.
Second, I use my study as evidence against the prevailing notion that conflict of laws scholarship is unhelpful to the practice of law. I argue that conflicts scholarship has become notorious for irrelevance because too many scholars employ logically fallacious argumentation and are overly concerned with designing theoretically ideal but practically infeasible choice of law rules. I argue that, by focusing more on studying how existing choice of law rules affect actual litigation, conflicts scholarship can lead the effort to fix our territorially tethered, increasingly unsustainable legal system and to design one fit to survive the age of cybertorts.

On August 31, 2021, South Korea passed a law prohibiting smartphone application (app) store operators from imposing particular payment systems on the apps hosted in their app stores, intended to prevent dominant firms such as Google and Apple from charging exorbitant commissions on in-app purchase revenues. This so-called Anti-Google Law, a similar version of which is being considered by the U.S. Congress, was widely praised by prominent developers and politicians as improving apps' bargaining position with respect to monopolistic app store operators.

This Article argues that the Anti-Google Law (AGL) risks achieving the opposite effect by making small app developers even more beholden than they are now to dominant platforms. Much of the discourse over the AGL and similar proposals overlooks a basic fact: while developers might oppose Google's or Apple's payment system, many consumers like it because it allows them to avoid having to arrange payment separately for every single app on their phones. Whereas apps with large and devoted user bases could sustain the user attrition resulting from switching to their own payment systems, typical apps without such devoted followings may not. I argue that the AGL merely permits apps to use their preferred payment systems in theory without creating an environment in which apps could afford to use their preferred payment systems in practice, and that the AGL provides governments looking to adopt similar legislation an object lesson in pitfalls to avoid.

Quantitative modeling in law has become commonplace. While quantitative models are sometimes necessary or useful, they seem attractive in many other cases simply because they sport a veneer of modernity. All things being equal, quantitative methods place a sort of “thumb on the scale,” which adds weight that an otherwise identically persuasive non-quantitative method would not.

We argue that legal scholars often use what should merely be a descriptive tool as a “scientific” model, to their own detriment. First, by claiming to solve normative legal problems using quantitative models, scholars distort the true nature of such problems by oversimplifying them. Second, many scholars fall into circular reasoning, because their defense of quantitative legal reasoning sometimes boil down to saying, “quantitative reasoning is more scientific and precise than verbal reasoning because quantitative reasoning is more scientific and precise than verbal reasoning, according to the same scientific and precise quantitative reasoning.” Third, quantitative models can be abused to impart a veneer of science to unfalsifiable, and thus pseudoscientific, propositions that can lead to—and have led to—misguided public policy decisions.