Calandrillo & Anderson on How Systemic Bias Distorts U.S. Legal and Regulatory Responses to Emerging Technology 

Steve Calandrillo (University of Washington – School of Law) and Nolan Anderson (Columbia Law School) have posted “Terrified by Technology: How Systemic Bias Distorts U.S. Legal and Regulatory Responses to Emerging Technology”  (University of Illinois Law Review, Vol. 2021 (Forthcoming)) on SSRN. Here is the abstract:

Americans are becoming increasingly aware of the systemic biases we possess and how those biases preclude us from collectively living out the true meaning of our national creed. But to fully understand systemic bias we must acknowledge that it is pervasive and extends beyond the contexts of race, privilege, and economic status. Understanding all forms of systemic bias helps us to better understand ourselves and our shortcomings. At first glance, a human bias against emerging technology caused by systemic risk misperception might seem uninteresting or unimportant. But this Article demonstrates how the presence of systemic bias anywhere, even in an area as unexpected as technology regulation, creates inefficiencies and inequalities that exact heavy costs in the form of human lives, standards of living, and lost economic opportunities. The decision to regulate or implement an emerging technology, like any other complex decision, naturally involves some form of cost-benefit or risk-reward analysis. However, in the context of emerging technology, that analysis is biased by systemic risk misperception. Immutable characteristics existing in emerging technology combine with interrelated characteristics in human decisionmakers and regulators to inflate perceptions of risks and depress perceptions of benefits. This artificial shifting of cost-benefit curves results in suboptimal legislative and regulatory responses to emerging technology, and ultimately, in the loss of American lives.


Napoli on The Specter of the Fairness Doctrine and its Lessons for Social Media Regulation

Philip M. Napoli (Duke University) has posted “Back from the Dead (Again): The Specter of the Fairness Doctrine and its Lessons for Social Media Regulation” on SSRN. Here is the abstract:

Debates about political bias in the content curation and moderation practices of social media platforms have spilled over into the policy realm, rekindling conversations about the Fairness Doctrine and its potential utility in possible regulatory approaches to social media. This paper revisits the history of the Fairness Doctrine and uses this history as a lens for critically examining current proposals for integrating Fairness Doctrine-like principles into a regulatory framework for social media. In addressing this topic, the first section of this paper provides a brief overview of the history of the Fairness Doctrine and how the Doctrine has informed (and misinformed) subsequent media policy debates in the years since its elimination. The second section describes how the Fairness Doctrine is being brought to bear in the contemporary debates around social media regulation. The third section offers a critical analysis of the applicability of the Fairness Doctrine to the social media context. This section considers fundamental differences between legacy and current contexts, as well as key lessons from the Fairness Doctrine that should inform current deliberations.