Day: March 21, 2022

Scholz on Private Rights of Action in Privacy Law

Lauren Henry Scholz (Florida State University – College of Law) has posted “Private Rights of Action in Privacy Law” (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:

Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the power government has to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regime more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the general principle, I provide examples of how private rights of actions can improve privacy regulation in a suite of key modern privacy problems. We cannot afford to leave private rights of action out of privacy reform.

Abiri & Huang on The People’s (Republic) Algorithms

Gilad Abiri (Peking University School of Transnational Law; Yale Law School) and Xinyu Huang
(Yale Law School) have posted “The People’s (Republic) Algorithms” (Notre Dame Journal of International and Comparative Law (Forthcoming)) on SSRN. Here is the abstract:

Recommendation algorithms, such as those behind social media feeds and search engine results, are the prism through which we acquire information in our digital age. Critics ascribe many social and political woes—such as the prevalence of misinformation and political division—to the fact that we view our world through the personalized and atomized prism of recommendation artificial intelligence. The way the great powers of the internet—the United States, the European Union, and China—choose to regulate recommendation algorithms will undoubtedly have a serious impact on our lives and political well-being.

On December 31, 2021, the Cyberspace Administration of China, a governmental internet watchdog, published a bombshell regulation directed at recommendation algorithms. These regulations, which went into effect on March 2022, exponentially increase the control and autonomy of Chinese netizens over their digital life. At the same time, the regulation will greatly increase the control the Chinese government has over these algorithms. In this timely essay, we analyze the content of the regulation and situate it in its historical and political context.

Martínez, Mollica & Gibson on How Poor Writing, not Specialized Concepts, Drives Processing Difficulty in Legal Language

Eric Martínez (MIT), Frank Mollica (Edinburgh), and Edward Gibson (MIT) have posted “Poor Writing, not Specialized Concepts, Drives Processing Difficulty in Legal Language” (Cognition 2022) on SSRN. Here is the abstract:

Despite their ever-increasing presence in everyday life, contracts remain notoriously inaccessible to laypeople. Why? Here, a corpus analysis (n≈225 million words) revealed that contracts contain startlingly high proportions of certain difficult-to-process features–including low-frequency jargon, center-embedded clauses (leading to long-distance syntactic dependencies), passive voice structures, and non-standard capitalization–relative to nine other baseline genres of written and spoken English. An experiment (N=184) further revealed that excerpts containing these features were recalled and comprehended at lower rates than excerpts without these features, even for experienced readers, and that center-embedded clauses inhibited recall more-so than other features. These findings (a) undermine the specialized concepts account of legal theory, according to which law is a system built upon expert knowledge of technical concepts; (b) suggest such processing difficulties result largely from working-memory limitations imposed by long-distance syntactic dependencies (i.e., poor writing) as opposed to a mere lack of specialized legal knowledge; and (c) suggest editing out problematic features of legal texts would be tractable and beneficial for society at-large.