Van Loo on Stress Testing Governance

Rory Van Loo (Boston University – School of Law; Yale ISP) has posted “Stress Testing Governance” (Vanderbilt Law Review, Vol. 75, No. 553, 2022) on SSRN. Here is the abstract:

In their efforts to guard against the world’s greatest threats, administrative agencies and businesses have in recent years increasingly used stress tests. Stress tests simulate doomsday scenarios to ensure that the organization is prepared to respond. For example, agencies role-played a deadly pandemic spreading from China to the United States the year before COVID-19, acted out responses to a hypothetical hurricane striking New Orleans months before Hurricane Katrina devastated the city, and required banks to model their ability to withstand a recession prior to the economic downturn of 2020. But too often these exercises have failed to significantly improve readiness for the subsequent crises. This Article shows that stress tests are used more widely than is commonly assumed, reaching well beyond financial regulation. It then argues that administrative stress tests should be seen as potentially powerful tools for administrative governance, but ones that suffer from significant shortcomings as currently deployed. Most notably, stress tests lack adequate transparency, oversight, and imagination. Also, they are too often voluntary for businesses and agencies whose performance failures could have great societal ramifications. By depriving stakeholders of crucial information about organizational readiness, these shortcomings weaken the nation’s ability to prevent and prepare for disasters. Preparing for disasters will only become more important as technologies transform everything from stock trading to elections and climate change creates more volatile weather. With improved design and wider deployment, stress tests have the potential to become a central tool for public and private accountability in an era of escalating societal risks.

Lundqvist on Regulating Data Access and Portability of Data in the EU

Bjorn Lundqvist (Stockholm University – Faculty of Law) has posted “Regulating the Data-Driven Economy Under EU Law – Access and Portability of Data” on SSRN. Here is the abstract:

While business users face difficulties accessing and porting data on platforms, the Digital Markets Act and the proposed Data Act have been hailed as the legislative tools enabling users access and transfer the data they have generated on platforms controlled by gatekeepers or Internet of Things manufacturers. The tools provided by the Digital Markets Act and the proposed Data Act respectively are discussed in this manuscript and the author argues that users should have a more elaborated right to first access the data they produce on platforms, with Internet of Thing devices and in ecosystems, and secondly transfer such data from platform to platform, cloud to cloud, thing to thing or in-house. A right to access and transfer data could have several benefits; it benefits dissemination of data, creativity and innovation in connected markets and it promotes competition between platforms, clouds and ecosystem providers. Creativity will be enhanced because necessary data — being the raw material for new innovations—will be more broadly disbursed. It will also benefit consumers having a disbursed and disseminated data commons for the development of ideas, innovations, and the exchange of knowledge.

Indeed, with an aim of finding a solution for dysfunctional and unfair data-driven markets; the proposal is that the EU should introduce an access and transfer governance right to data, an Access and Transfer Right (ATR). A new form of right, however not derived from the idea of exclusive control of the object of property, but on a right to access and transfer data. A governance right that can work in tandem with data protection rules benefiting individuals and businesses. Areas that will be explored include the subject-matter of the protection, potential right holders and the scope of the protection, including exceptions and limitations under intellectual property law and competition law.

Yoo on The Overlooked Systemic Impact of the Right to Be Forgotten

Christopher S. Yoo (University of Pennsylvania Carey Law School) has posted “The Overlooked Systemic Impact of the Right to Be Forgotten: Lessons from Adverse Selection, Moral Hazard, and Ban the Box” (University of Pennsylvania Law Review Online, vol. 170, forthcoming) on SSRN. Here is the abstract:

The right to be forgotten, which began as a part of European law, has found increasing acceptance in state privacy statutes recently enacted in the U.S. Commentators have largely analyzed the right to be forgotten as a clash between the privacy interests of data subjects and the free speech rights of those holding the data. Framing the issues as a clash of individual rights largely ignores the important scholarly literatures exploring how giving data subjects the ability to render certain information unobservable can give rise to systemic effects that can harm society as a whole. This Essay fills this gap by exploring what the right to be forgotten can learn from the literatures exploring the implications of adverse selection, moral hazard, and the emerging policy intervention know as ban the box.