Tuesday Tips: New Scholarship from SSRN for the Week of April 13th
Kathrin Gardouse, Amin Oueslati, & Noam Kolt
Abstract
AI agents—systems that can independently take actions to pursue complex goals with only limited human oversight—have entered the mainstream. These systems are now being widely used to produce software, conduct business activities, and automate everyday personal tasks. While AI agents implicate many areas of law, ranging from agency law and contracts to tort liability and labor law, they present particularly pressing questions for the most globally consequential AI regulation: the European Union’s AI Act. Promulgated prior to the development and widespread use of AI agents, the EU AI Act faces significant obstacles in confronting the governance challenges arising from this transformative technology, such as performance failures in autonomous task execution, the risk of misuse of agents by malicious actors, and unequal access to the economic opportunities afforded by AI agents. We systematically analyze the EU AI Act’s response to these challenges, focusing on both the substantive provisions of the regulation and, crucially, the institutional frameworks that aim to support its implementation. Our analysis of the Act’s allocation of monitoring and enforcement responsibilities, reliance on industry self-regulation, and level of government resourcing illustrates how a regulatory framework designed for conventional AI systems can be ill-suited to AI agents. Taken together, our findings suggest that policymakers in the EU and beyond will need to change course, and soon, if they are to effectively govern the next generation of AI technology.
Lauren Henry Scholz
College of Law, Professor Lauren Scholz.
Share the Abstract sectionAbstract
Many courts use textualist interpretation by default for contracts where both parties are deemed sophisticated. This default misaligns with both the heterogeneous preferences of sophisticated contracting parties and contract law’s plural value commitments. There are two competing theories about the purpose of default rules. One view has it that defaults should approximate what most parties would have wanted. The other sees defaults as tools for advancing the broader aims of law, including autonomy and welfarism. The current sophistication default fails under both views.
I contend that flipping the default rule for contract interpretation for sophisticated parties from textualism to contextualism would incentivize out-of-court dispute resolution, redistribute litigation burdens away from dominant firms, and better align interpretive practice with contract law’s goals. A contextualist default reflects the autonomy value of contract law, and makes society better off, supporting contract law’s welfarist commitment.
Kate Elengold
Kate Sablosky Elengold is a clinical associate professor of law and director of the Consumer Financial Transactions Clinic and UNC Law.
Abstract
Michelle owes $15,000 to a bank for credit card debt. Reid owes $15,000 to Memphis Memorial, a private hospital. Shirley owes $15,000 to the Raleigh Housing Authority. Josh owes $5,000 to the state of Louisiana and $10,000 to the Internal Revenue Service. Each debtor owes the same amount. None of them can afford to pay. From their perspective, the debt is the same. But the law does not treat these four debtors the same. The law provides them with widely divergent protections and affords their creditors different collection tools. Michelle, Reid, Shirley, and Josh experience their debt and its collection differently because the “law of individual debt” is comprised of aspects of various doctrines, including contract, tort, consumer, civil rights, bankruptcy, tax, and constitutional law. This Article reveals and explains how relevant aspects of these doctrines combine to allow for divergent experiences for four similarly-situated debtors. This Article then argues that the law of individual debt is organized around (1) the identity of the creditor and (2) whether the creditor voluntarily contracted to extend credit to the debtor. With that context, it offers an organizational structure to describe this phenomenon-a “debt ladder” comprised of (1) private voluntary debt, (2) private involuntary debt, (3) public voluntary debt, and (4) public involuntary debt. Mapping debtor protections and creditor powers across the four rungs leads to a shocking conclusion: when descending the debt ladder, legislators have simultaneously decreased debtor protections while increasing creditor powers. This places public involuntary debtors at the bottom of the ladder in an untenable position-suffering under crushing debt and subject to punitive collection tools. After having excavated the law, developed the scaffolding, and mapped the effects, this Article challenges scholars and policymakers to consider whether the whole is worth the constituent parts.
Cyra Akila Choudhury
Abstract [I have bolded the link to contracts law]
Regardless of the Supreme Court’s view that reversing Roe v. Wade returns us to the status quo ante, clearly that is an impossibility. In the decades after the decision, anti-abortion states expanded their use of criminal law to regulate reproductive activity while scholars and activists, focusing narrowly on abortion, fought a losing battle to protect women’s reproductive rights. In that fight, privacy has been a critical shield against the intrusions of the state into family life. However, it has not been enough. This Article is concerned with digital privacy and the use of data against women for reproductive activity. It argues that given the post- Roe landscape, privacy law—private and public—is inadequate in its current form and cannot be reformed or reinterpreted to protect women against a punitive and carceral state. Legal strategies succumb to the imperatives of law enforcement; therefore, the most effective solution is not a legal one but a political one: eliminating these crimes entirely.
To make the case, in Part I, the Article introduces a new category of related crimes which it terms “reproductive crimes.” Taken together, these crimes, often linked to abortion and justified as protecting (unborn) children, severely constrain women’s autonomy and rights to reproductive decision making. These crimes demonstrate the extent to which criminal law has been expanded to regulate women. In Part II, the Article argues that the advances in technology that have resulted in enormous amounts of data generated by and about each user or data subject, provides more evidence for prosecution and in ways not contemplated before. The state no longer needs to physically invade the “sacred precincts of marital bedrooms” for evidence of wrongdoing. Instead, it can subpoena or buy it from tech companies and data brokers. The Article explores the use of technology, the collection of digital data that can be used as evidence, and the resulting erosions of privacy. What legal protection can be brought to bear on this problem? Current privacy law is fragmented and offers only patchwork or Swiss cheese protections. Part III analyzes the main sources of privacy protection in contracts, Constitutional law, and legislation to demonstrate their inadequacy in the face of criminalization. And in Part IV, the Article argues that reinterpreting contract law or enacting legislation is similarly insufficient to protect women’s data privacy and the use of their data in prosecutions for reproductive crimes. All these legal frameworks suffer from a Fourth Amendment exception which prioritizes security over privacy. As a result, all avenues of legal redress will likely fall short.
In conclusion, the Article argues that there are two additional reasons why a reliance of data privacy law to protect women and their data is unavailing. First, by focusing on the individual, privacy experts overlook the problems of relational privacy. No woman is an island and data from family and friends can be used to infer the commission of reproductive crimes. As it stands, data privacy laws do nothing to protect one from leaks by others. Second, the Article raises the problem of law’s conception of the “human” arguing that increasingly we are distributed across technology in a way that makes tethering privacy to the corporeal person insufficient. Are we becoming our avatars and if so, does privacy law protect us? Ultimately, the Article posits that “tinkering at the margins” of privacy law is no defense against the expansion of the carceral state. Instead, it calls for a bold political shift toward the abolition of reproductive crimes altogether, arguing for the systematic scaling back of criminal law’s application to family and reproductive life.
David Orozco
Abstract
Good faith is ancient, powerful, and complex. It is also indispensable to our system of law. However, good faith is often unnecessarily shrouded in mystery. In several cases, good faith is judicially applied in a manner that creates confusion and uncertainty. To achieve greater analytical clarity, good faith is analyzed within a continuum derived from statutes along a spectrum of certainty. At one end of the continuum is a precise definition. Absent a definition, a rule may be derived such as honesty in fact. If a definition is not available or a rule is not desirable, then a standards approach along the continuum offers a viable path. Policy reasons and experience should dictate which of the standards best applies.
The creation of legal standards is something courts are well equipped to handle. One good faith standard is fair dealing although that should be limited, particularly when it involves good faith implied in law. In these cases good faith hinges on reliance interests and the promotion of justice when rules or other standards are inadequate. Another standard that is more commonly applied to good faith imposes objective reasonableness standards. This standard operates a gap-filling function in the law to inform the meaning of agreements, or deal with unforeseen events. The gap-filling reasonableness standard operates well in situations where information is incomplete. The last standard involves fidelity to the law and imposes a subjective knowledge or motivation test to ascertain whether the law is being purposefully evaded. In these cases, courts allow evidence as objective proof that speaks to the subjective motivation to evade the law. If the judge interprets the purpose of the law under this standard, then the judicial outcome will be associated with the request for an equitable remedy.
[David presented this or a closely-related work at KCON XVIII!]