Platform Neutrality: Enhancing Freedom of Expression in Spheres of Private Power

AbstractTroubling patterns of suppressed speech have emerged on the corporate internet. A large platform may marginalize (or entirely block) potential connections between audiences and speakers. Consumer protection concerns arise, for platforms may be marketing themselves as open, comprehensive, and unbiased, when they are in fact closed, partial, and self-serving. Responding to protests, the accused platform either asserts a right to craft the information environment it desires, or abjures responsibility, claiming to merely reflect the desires and preferences of its user base. Such responses betray an opportunistic commercialism at odds with the platforms’ touted social missions. Large platforms should be developing (and holding themselves to) more ambitious standards for promoting expression online, rather than warring against privacy, competition, and consumer protection laws. These regulations enable a more vibrant public sphere. They also defuse the twin specters of monopolization and total surveillance, which are grave threats to freedom of expression.</jats:p

The German banking system : system of the future?

In early 1991 the United States Treasury Department of the Bush Administration recommended in ib proposal for Modemizing The FinancialSystem l that, in addition to other remarkable breaks with the traditional United States financial Services framework, the current bank holding Company structure be replaced with a new financial Services holding Company that would reward banks with the ability to engage in a broad new range of financial activities through separate afbliates, including full-service securities, insurance, and mutual fund activities. The Treaaury Department pointed out that commercial banking and investment banking are complementary Services and that the Glass-Steagall Separation was unnecessary. The Treasury Department gave many reasons for the need for financial modernization and why such a modemized System would work better. As an example that demonstrates the advantages of the System proposed by the Treasury Department, the proposal pointed to the German banks and called the German model of a universal banking System the most liberal banking System in the world. -What makes the German universal banking System so unique and desirable? The following outline of the history and the current structure of the Getman banking System is intended to give readers a background tc determine whether the German banking System could be a model for the System of the future

Justice Scalia\u27s Hat Trick and the Supreme Court\u27s Flawed Understanding of Twenty-First Century Arbitration

In this article, I report on the results of my close examination of more than two dozen opinions the Court has handed down interpreting the FAA--arising primarily from commercial, consumer, employment, or securities disputes--since the beginning of the twenty-first century only fifteen years ago.19 I focus on cases in which the Court was asked to decide a question of arbitrability--whether a claim is arbitrable or whether an agreement to arbitrate is enforceable under FAA section 2. I have concluded that these decisions are built on a narrative of an arbitration process that no longer exists, although it may have existed in the twentieth century when Congress passed the FAA. The Court\u27s antiquated understanding of the process threatens to undermine arbitration as a just alternative dispute resolution (ADR) mechanism. Part I of this article describes the process of arbitration, the law that regulates the process, and how both law and process have evolved from the twentieth to the twenty-first century. Part II zeroes in on three opinions enforcing arbitration agreements challenged by consumers seeking to bring statutory claims as class actions. All three opinions were authored by Justice Scalia in 2011, 2012, and 2013--what I call Scalia\u27s “Hat Trick.” As I see it, Justice Scalia scored three times in the game of arbitration--and corporate counsel were likely cheering on the sidelines as their “goals” were achieved: to suppress consumers\u27 ability to bring individual class actions against companies based on claims arising under federal statutes. Many arbitration scholars have sharply criticized those decisions as anti-consumer or anti-employee, claim suppressing, and at odds with the fundamental right to have a dispute heard in a courtroom. Part III argues that, in the Court\u27s twenty-first-century arbitration cases, when justifying its holdings, the Court assumes without factual basis that arbitration is a one-size-fits-all process that is quick and inexpensive for all disputants who have ultimate control over the procedures. This part demonstrates that the Court\u27s oversimplified and out-of-touch decisions have crafted a legal framework that regulates an arbitration process that largely no longer exists. The article concludes by arguing that the Court\u27s expansion of the FAA improperly rests on an outmoded understanding of the modern arbitration process and fails to recognize the many varieties of arbitration that exist today. Those decisions have led to concerns and criticisms that arbitration is no longer a fair process and have promoted a flight from arbitration. This flight necessarily decreases the range of ADR options that parties have at their disposal and ultimately hurts the values of process pluralism. By setting the record straight, I hope to provide some insights into challenges to the Court\u27s FAA decisions that may still exist and that have the potential to lead to a reinvigoration of many types of arbitration as appealing alternatives to litigation

Two Narratives of Platform Capitalism

Mainstream economists tend to pride themselves on the discipline\u27s resem­blance to science. But growing concerns about the reproducibility of economic research are undermining that source of legitimacy. These concerns have fueled renewed interest in another aspect of economic thought: its narrative nature. When presenting or framing their work, neoliberal economists tend to tell sto­ries about supply and demand, unintended consequences, and transaction costs in order to justify certain policy positions. These stories often make sense, and warn policymakers against simplistic solutionism

A Happiness Approach to Cost-Benefit Analysis

Subjective well-being (SWB) surveys ask respondents to quantify their overall or momentary happiness or life-satisfaction, or pose similar questions about other aspects of respondents\u27 mental states. A large empirical literature in economics and psychology has grown up around such surveys. Increasingly, too, scholars have advanced the normative proposal that SWB surveys be used for policymaking—for example, by using survey results to calculate monetary equivalents for nonmarket goods (to be incorporated in cost-benefit analysis), or to calculate gross national happiness. This Article skeptically evaluates the policy role of SWB data. It is critical to distinguish between (1) using SWB surveys as evidence of preference utility versus (2) using them as evidence of experience utility. Preference utility is a measure of the extent to which someone has realized her preferences; experience utility, a measure of the quality of someone\u27s mental states. The two are quite different because individuals can have preferences regarding non-mental occurrences. Having drawn this distinction, the Article then argues, first, that SWB surveys are poor evidence of preference utility—given problems of preference and scale heterogeneity, as well as other difficulties. Stated-preference surveys are a much better survey format for eliciting preference utility. Second, in considering SWB surveys as an experience-utility measure, we should recognize that experientialism about well-being—the view that well-being is simply a matter of good experiences—is highly controversial. More plausibly, an experience-utility measure might be seen as an indicator of one aspect of well-being. However, even constructing this weak experience-utility measure is not straightforward—as the Article demonstrates by discussing Daniel Kahneman\u27s detailed proposal for such a metric

The Question Concerning Technology in Compliance

In this symposium Essay, I apply insights from philosophy and psychology to argue that modes of achieving compliance that focus on technology undermine, and are undermined by, modes of achieving compliance that focus on culture. Insisting on both may mean succeeding at neither. How an organization resolves this apparent contradiction in program design, like the broader question of optimal corporate governance arrangements, is highly idiosyncratic. Firms should therefore be accorded maximum freedom in designing their compliance programs, rather than being forced by enforcement authorities into a set of de facto mandatory compliance structures

Sovereign Debt Restructuring and English Governing Law

The problem of sovereign indebtedness is becoming a worldwide crisis because nations, unlike individuals and corporations, lack access to bankruptcy laws to restructure unsustainable debt. Decades of international efforts to solve this problem through contracting and attempted treaty-making have failed to provide an adequate debt-restructuring framework. A significant amount of outstanding sovereign debt is governed, however, by English law. This Article argues that the U.K. Parliament has the extraordinary power to help solve the problem of unsustainable country debt by changing English law to facilitate fair and consensual debt restructuring. This Article also proposes modifications to English law that Parliament could consider, based on a model law for sovereign debt restructuring