Data as Policy

A large literature on regulation highlights the many different methods of policy-making: command-and-control rulemaking, informational disclosures, tort liability, taxes, and more. But the literature overlooks a powerful method to achieve policy objectives: data. The state can provide (or suppress) data as a regulatory tool to solve policy problems. For administrations with expansive views of government’s purpose, government-provided data can serve as infrastructure for innovation and push innovation in socially desirable directions; for administrations with deregulatory ambitions, suppressing or choosing not to collect data can reduce regulatory power or serve as a back-door mechanism to subvert statutory or common law rules. Government-provided data is particularly powerful for data-driven technologies such as AI where it is sometimes more effective than traditional methods of regulation. But government-provided data is a policy tool beyond AI and can influence policy in any field. We illustrate why government-provided data is a compelling tool both for positive regulation and deregulation in contexts ranging from addressing healthcare discrimination, automating legal practice, smart power generation, and others. We then consider objections and limitations to the role of government-provided data as policy instrument, with substantial focus on privacy concerns and the possibility for autocratic abuse. We build on the broad literature on regulation by introducing data as a regulatory tool. We also join—and diverge from—the growing literature on data by showing that while data can be privately produced purely for private gain, they do not need to be. Rather, government can be deeply involved in the generation and sharing of data, taking a much more publicly oriented view. Ultimately, while government-provided data are not a panacea for either regulatory or data problems, governments should view data provision as an understudied but useful tool in the innovation and governance toolbox

Motion for Leave and Brief of Amici Curiae 1129 Law Students and 51 Law Student Organizations in Support of Plaintiff\u27s Motion for Summary Judgment

Amici are 1129 law students and 51 law student organizations from law schools across the United States. They are diverse geographically, economically, socially, and politically. They study law for different reasons. They will go on to represent a wide range of clients and causes. Yet amici are united in one fundamental respect. They have dedicated themselves to the idea that we are a society governed by laws, not by raw power. They recognize that the executive order attacks their chosen profession. It attacks the values that cause law practice to be meaningful in American life. Amici ask this Court to protect the legal profession they are preparing to join and the core values that the profession serves

U.S. Territories and the Criminal Law Curriculum

In this Article, I make a case for why issues concerning the territories should be taught in law school courses and suggest a few ways in which federal criminal adjudication in the territories can and should be incorporated into the criminal law and procedure curriculum.10 As I advance elsewhere,11 criminal adjudication in the territories functions differently than in the mainland United States.12 Using the framework of what I call the “territorial criminal legal system,” I have begun mapping the contours of the unique prosecutorial ecosystem produced by the territorial condition.13 Chief among the characteristics is the federal government’s ability to treat the territories differently than the states.14 This ability flows from the federal government’s plenary—or complete and virtually unrestricted—power over the territories, which provides Congress with the ability to serve as both the federal and local territorial legislature when it so chooses.15 Accordingly, Congress can choose to create federal district courts for the territories, allow federal prosecutors to prosecute local crime in the territories,16 unilaterally apply criminal codes to a territory, or create specialty courts to accommodate local conditions.18 This ecosystem not only produces uncomfortable prosecutorial arrangements but also justifies its existence in the name of territorial rule. Below, I focus on how Puerto Rico and American Samoa are directly affected by their territorial relationship with the federal government20 and how that relationship provides fertile ground for important discussions in criminal law and procedure courses that challenge fundamental norms of criminal justice such as democratic accountability, representational criminal justice, and the function of the jury.21 As a preview, Puerto Rico and American Samoa stand on different ground with respect to criminal adjudication. They are both unincorporated territories of the United States, but only Puerto Rico has a federal district court;22 American Samoa does not.23 As a result, people accused of federal crimes in American Samoa must face their proceedings and trials elsewhere in the United States.24 And even though Puerto Rico has a federal district court, most islanders cannot participate as jurors.25 That is because the Jury Selection Service Act requires all federal jurors to have a certain level of English proficiency which about only ten percent of Puerto Ricans possess because the de facto language on the island is Spanish.26 These two realities are a direct product of territorial governance. In the following pages, I encourage teachers of criminal law and procedure to use the territories as examples that challenge and complicate the traditional narrative of criminal law and procedure.28 Incorporating the territories, however, goes well beyond adding a case or two. Indeed, it requires us to re-imagine or reconstruct essential narratives about our courses. In criminal law, this means challenging the criminal law as a democratic expression when, for example, the people of the territories have never had a say in creating federal criminal statutes that apply to them. In criminal procedure, the territories require us to reflect on established parts of the class, such as the jury trial right, and rethink the meaning of community and how we conceive of inequality with respect to jury selection. This Symposium is about integrating the territories into the law school curriculum. When introducing territorial issues, we must think critically about how doing so complicates essential aspects of our established curriculum. In Part II, I make the case for why issues concerning the territories should be taught in law schools. In Part III, I briefly describe the historical relationship between Puerto Rico, American Samoa, and the United States. In Part IV, I describe the parallel prosecutorial processes in the territories. I then explain how the current criminal adjudication arrangement in Puerto Rico and American Samoa challenges fundamental norms of our criminal legal system29 and how these unique circumstances can be used in criminal law and procedure courses to not only create awareness of the U.S. territories but also to further interrogate our democratic project

Promises, Promises: Understanding Claims Made in Social Robot Consumer Experiences

Social robots are a class of emerging smart consumer electronics devices that promise sophisticated experiences featuring emotive capabilities, artificial intelligence, conversational interaction, and more. With unique risk factors like emotional attachment, little is known on how social robots communicate these promises to consumers and whether they adequately deliver upon them within their overall product experiences prior to and during user interaction. Animated by a consumer protection lens, this paper systematically investigates manufacturer claims made for four commercially available social robots, evaluating these claims against the provided user experience and consumer reviews. We find that social robots vary widely in the manner and extent to which they communicate intelligent features and the supposed benefits of these features, while consumer perspectives similarly include a wide range of perceptions on robot and AI performance, capabilities, and product frustrations. We conclude by discussing social robots’ unique propensities for consumer risk, and consider implications for regulators, developers, and researchers of social robots

Civilian Enforcers

This Article analyzes the largely unexplored phenomenon of militant civilians engaged in efforts to police and silence activism that challenges entrenched American power systems and economic distributions placing whites atop the social hierarchy in the United States. I argue that this civilian enforcement is an unregulated vessel for state-sponsored violence meant to silence the contestation of the existing racial hierarchy. While scholars, myself included, have written about the many ways police confront and silence racial justice activists on the streets at least since the beginning of the Black Lives Matter (BLM) movement, the role law enforcement plays in silencing racial justice movements is only part a larger state-sponsored effort to preserve existing racial hierarchies. Supplementing violent policing from law enforcement actors, militant right-wing civilians descend on public streets ready to battle BLM activists. These mostly white, often armed, civilians are force multipliers of state efforts to suppress BLM voices, whose demands for a reevaluation of established distributions of power and wealth ignite fear and resentment among certain whites. Yet, vigilantes’ efforts evade constitutional examination because of their nature as non-state actors. However, police routinely tolerate or even collaborate with these civilian vigilantes, while simultaneously focusing violent enforcement efforts on BLM protesters. I argue that this pattern of disparate police enforcement, where racial justice activists are violently policed while civilian enforcers evade punishment, effectively transforms civilian vigilantes into unregulated state-sponsored violence workers. This is reminiscent of the antebellum South, where the state delegated legal authority to all whites to forcibly enforce laws that suppressed Black expression and any sentiment that endorsed Black liberation, thus showing that the suppression of Black liberation ideologies by state-sponsored civilian enforcers persists even toda

Gig Work at What Cost? Exploring Privacy Risks of Gig Work Platform Participation in the U.S.

In recent years, gig work platforms have gained popularity as a way for individuals to earn money; as of 2021, 16% of Americans have at some point earned money from such platforms. Despite their popularity and their history of unfair data collection practices and worker safety, little is known about the data collected from workers (and users) by gig platforms and about the privacy dark pattern designs present in their apps. This paper presents an empirical measurement of 16 gig work platforms\u27 data practices in the U.S. We analyze what data is collected by these platforms, and how it is shared and used. Finally, we consider how these practices constitute privacy dark patterns. To that end, we develop a novel combination of methods to address gig-worker-specific challenges in experimentation and data collection, enabling the largest in-depth study of such platforms to date. We find extensive data collection and sharing with 60 third parties—including sharing reversible hashes of worker Social Security Numbers (SSNs)—along with dark patterns that subject workers to greater privacy risk and opportunistically use collected data to nag workers in off-platform messages. We conclude this paper with proposed interdisciplinary mitigations for improving gig worker privacy protections. After we disclosed our SSN-related findings to affected platforms, the platforms confirmed that the issue had been mitigated. This is consistent with our independent audit of the affected platforms. Analysis code and redacted datasets will be made available to those who wish to reproduce our findings

Measuring Lawyer Mental Illness: Evidence from Two National Surveys

The American Bar Association declared a “well-being crisis” among lawyers, but the empirical basis for this claim has been contested in recent years. This study systematically compares two high-quality, nationally representative surveys —the National Health Interview Survey (NHIS) and the National Survey on Drug Use and Health (NSDUH)—to measure the prevalence of mental illness and alcohol misuse among lawyers. In both surveys, lawyers report elevated rates of alcohol misuse compared to the general public and similarly educated peers. The NHIS finds that lawyers experience psychological distress at rates lower than the general public and similar to, or moderately higher than, similarly educated peers. But the NSDUH paints a different picture: over 40% report moderate or serious psychological distress in the past year. A rate significantly higher than those reported by the general public, similarly educated peers, and the rate found in the NHIS. While we are unable to explain fully all of the differences across the two national surveys, we resolve some of these differences by studying sensitivity to instrument validation and calibration and precisely aligning the measurements used in both surveys. To assess the remaining differences, we highlight several advantages of the NSDUH, including the privacy of data-gathering methods, additional clinically validated mental illness measures, and results that are more consistent with other national surveys. The persistent divergent findings from the NHIS and NSDUH underscore specific challenges in measuring mental illness and the importance of continued work on survey implementation, validation, analysis, and interpretation

Disappearing Data at the U.S. Federal Government

Health data hosted by the U.S. federal government have been disappearing. According to our analysis, between January 21 and February 11, 2025, the Centers for Disease Control and Prevention (CDC) removed 203 datasets (13% of its online datasets, a reduction from 1519 to 1316). The situation is dynamic; various datasets have been removed, restored, manipulated, or not posted as planned. A dataset with county-level information on mortality associated with heart disease, for example, which is used for research on demographic and geographic determinants of heart disease, was unavailable starting on January 31 and was restored on February 10, with the term “gender” replaced with “sex.”1 The Social Vulnerability Index, which includes information on race and gender and is used to predict susceptibility to natural disasters, was unavailable beginning on January 31 and was restored only after a February 11 court order. The CDC reportedly stopped giving researchers access to the Pregnancy Risk Assessment Monitoring System, a maternal and infant health database that is widely used to study maternal mortality, and ceased collecting new data for the program.2 The Trump administration hasn’t provided definitive explanations for these changes, but many of them may reflect agency responses to its directive to remove information “that promote[s] or otherwise inculcate[s] gender ideology.” The consequences of these changes are expected to be far-reaching. Without access to accurate and timely data, scientists’ work will become more difficult, and we will understand less about the world. Clinicians and public health practitioners will need to make the same challenging decisions as they otherwise would have, but with less information. Public health experts will have more trouble identifying trends in disease outbreaks or overdose deaths and assessing or advocating for various interventions. The problem isn’t only federal: state and local public health agencies often rely on federal data or work with federal agencies and will be similarly affected. Data suppression can directly support policy goals. The 1996 Dickey Amendment and the 2003 Tiahrt Amendments, for example, blocked data sharing and federal funding for gun-violence studies, with what public health officials believed was an aim of scaring agencies away from collecting data that could provide evidence of harms associated with gun ownership.3 As we discuss below, removing government databases can also transfer power from public to private entities, strengthen monopolies, hobble innovation, and promote autocracy

United States v Skrmetti—Testing the Transition to Politicized Regulation of Medicine

On December 4, 2024, the US Supreme Court heard oral arguments in United States v Skrmetti,1 in which the Biden administration asked the Court to decide how to evaluate the constitutionality of laws such as Tennessee’s ban on gender-affirming care for people younger than 18 years (called Senate Bill 1 [SB1]). This decision has potential to reach beyond the population of patients directly affected by SB1, implicating not only constitutional protection against government discrimination, but also state regulation of the practice of medicine more broadly

Preventing Unjust Enrichment and Copyright Opportunism: An Equitable Interpretation of Section 103(a)

A stealth issue in many close copyright fair use cases is the potential invalidity of second comers’ copyrights under 17 U.S.C. § 103(a) if the new use is ultimately held to infringe the derivative work right. In the Supreme Court’s recent Warhol v. Goldsmith case, for instance, Lynn Goldsmith claimed that the Warhol Foundation owned no copyright in Andy Warhol’s creations based on her photograph because these works infringed her derivative work right, notwithstanding the Foundation’s plausible fair use defense and the significant value that Warhol contributed to these art works. Section 103(a) of the Copyright Act says, in effect, that no copyright exists in any part of a derivative work in which the first work\u27s expression was “used unlawfully.” Courts have largely ignored § 103(a). This Article traces the origins, history, and case law on § 103(a), highlights the significant ramifications of this provision in cases in which it was arguably relevant, and explores the expansive range of its possible interpretations and applications. It argues that the statutory text and purpose of § 103, as well as equitable considerations, support numerous limitations on the scope of § 103(a) invalidations, especially in close cases of derivative work infringement and failed fair use rulings. When invalidations of copyrights would be inequitable as to good faith secondary uses of source works, result in windfalls to source work authors, or otherwise be contrary to fundamental principles of copyright law, this Article argues that Congress intended § 103 to apply narrowly to achieve copyright’s goal of promoting the “progress of science.