Law

Historically, common property is one of the dominant forms of ownership through which natural resources-e.g., forests, pastures, and fisheries-are managed. However, their decline across societies due to marketization and privatization has prompted intense debates. This Article seeks to answer the following questions: (1) Why did some common property regimes dissipate quickly, while others resisted the forces of privatization for generations? (2) What explains the divergent trajectories that societies took in governing common resources? Building on the classic Coasean and Demsetzian law-andeconomics principles, this Article highlights two additional dimensions-institutional capacity and social embeddedness of propertyto explain how "hidden" social costs impacted the stability of common property regimes. Using forest commons in Qing China (1644-1912) as a historical case study, this Article argues that lineage institutions-a form of organized kinship-created conditions for the longevity of common property regimes in China due to three factors: (1) as a result of the Qing state's laissez-faire attitude towards property, lineages assumed key administrative functions in regulating property relations at the locality; (2) lineages took advantage of the laws and institutions of the

The rampant growth of artificial intelligence (AI) has reshaped the landscape of credit underwriting and distribution in consumer financial markets. Despite expanding consumers’ access to credit, the unbridled use of AI by creditors has widened credit inequality along racial, gender, and class dimensions. Existing regulatory paradigms of consumer financial protection fail to meaningfully protect consumers against potential AI discrimination and exploitation. At its core, the failure of the existing legal regime lies in its fetishization of free markets and consumer autonomy—the two ideological
pillars of neoliberalism. Judges and lawmakers who subscribe to neoliberal ideals have consistently attributed credit market defects to individual choices, rather than systemic and inherited social inequalities. Today, this neoliberal ethos continues to inform mainstream legal responses to the threats posed by AI.

This article proposes an alternative. It argues that thinking of AI governance in purely individualist, dignitarian terms obscures the real source of algorithmic harm. Contrary to neoliberal assumptions, AI-inflicted harms in credit markets—e.g., algorithmic discrimination and exploitation—are not the result of irresponsible creditor conduct or opaque markets. Rather, they are caused by unjust relations of data production, circulation, and retainment that reflect and reproduce systemic social inequalities. Understanding algorithmic harm as both individually and socially constituted can help lawmakers move away from the outdated neoliberal paradigms that idolize individual responsibility. It also opens new avenues for legal reform. To reshape unjust data relations, this article proposes a propertarian approach to AI governance that involves: (1) reimagining the nature of data ownership, (2) creating a collective intellectual property right in data, and (3) building a collective data governance infrastructure anchored in the open digital commons.

Credit discrimination undermines consumer financial autonomy and distorts market pricing of lending risks. To ensure equal access to credit, existing federal fair lending laws—e.g., Equal Credit Opportunity Act, Fair Housing Act—prohibit lenders from considering race, sex, age, or national origin in their lending decisions. For decades, the fair lending laws have largely held the banking industry in check. However, as lenders increasingly delegate lending decisions to artificial intelligence (AI) through the service of fintech and data intermediaries, it is questionable whether existing laws can still adequately safeguard equal credit access.

This Article argues that the current fair lending regime can no longer protect consumers in the age of AI. This is because our regime does not account for harms traceable to automatic, unsupervised algorithmic processes. Unlike human actors, algorithms cannot desire to cause harm or intend to use suspect factors. Yet, courts and litigants are constrained by the language of the fair lending laws to hold AI accountable under an antiquated legal theory—treating discrimination as analogous to common law torts. Under this regime, victims of AI discrimination carry the burden of showing lender animus and causal explanations linking the victim’s injury to the lender’s specific acts or policies. Consequently, such victims are often barred from recovery due to insurmountable pleading and evidentiary hurdles.

Thus, any attempt to combat AI discrimination must consider two unique features of algorithmic harm. First, an algorithm’s discriminatory decision may have no explicable connection—let alone causal relation—to the acts or policies of the lender due to the algorithm’s self-learning capabilities. Second, whether an algorithm discriminates depends on a host of variables typically outside the lenders’ control. The unpredictable nature of AI calls into question the effectiveness of regulating AI bias under the fair lending laws—a conduct-based liability regime that emphasizes causation, reasonable foreseeability, and ex-ante risk mitigation.

As a blueprint for reform, this Article proposes an alternative harm-based framework to address the root cause of AI discrimination: data opaqueness. To implement this framework, this Article recommends the CFPB to adopt a new rule prohibiting the use of “black box” algorithms in consumer lending, pursuant to the CFPB’s authority to prohibit “unfair, deceptive, or abusive acts and practices” (UDAAPs) under the Dodd-Frank Act.

Sometimes officials fail to enforce a statute despite its widespread violation over a long period of time. Under the doctrine of desuetude, such statutes are considered void and therefore may be abrogated by judges. This Note articulates and defends a version of the doctrine that would prevent arbitrary and capricious enforcement of obsolete morals legislation, while simultaneously preserving the residual symbolic value that otherwise obsolete morals legislation may retain for citizens. Judges would accomplish this by invalidating the punishment-enabling provisions of morals legislation as desuetudinal, while preserving the offense-defining provisions that may still have symbolic value.

This symposium piece argues, among other things, that: (i) corrective justice (broadly construed) requires compensating exonerees (and thus compensating is not merely supererogatory), (ii) we should think of compensation as a form of backpay for deterrence services rendered, simply in virtue of an innocent person's incarceration, (iii) doing so best explains and justifies the lock-step compensation structure that most compensation statutes already provide, and (iv) analogical reasoning can help guide the inquiry into the range of backpay that the state owes the exoneree, by comparing the circumstances of incarceration with similarly high-stress and dangerous occupations. State legislatures may still face financial obstacles in providing what justice requires to the exonerated. But no principled opposition to compensation exists consistent with the demands of justice.

Many scholars assume that lawmakers should design contract law with the goal of facilitating commercial promises. But the question of which promises count as commercial remains neglected. This Article argues that this question matters more than one might initially expect. Once we understand commerciality in terms of commodification— roughly, treating something as subject to market norms—surprising recommendations for reform follow. First, if contract law should enforce commodified promises, we should demote the consideration doctrine to a presumption of enforceability rather than a formal requirement. Second, we should adopt a rule, contrary to current doctrine in most jurisdictions in the United States, that intending to make a promise legally binding renders it presumptively enforceable. Beyond these reforms, understanding contracts as commodified promises also provides a new lens through which to view recurring debates about boilerplate, enforcing donative promises, remedies, and efficient breaches. We can even understand the 2008 financial crisis as caused in part by over-commodifying promises. In short, this Article shows how debates about the moral limits of markets, which might have seemed peripheral to contract theory, belong at its very

Commentators have long tried to sound the alarm about boilerplate contracts, pointing out threats ranging from the loss of privacy rights to the erosion of public law and democratic self-governance. This Article argues that this list of concerns misses something important: that imposing certain boilerplate terms on individuals is incompatible with their dignity. After explaining and defending the conception of dignity presupposed here, this Article shows how boilerplate accountability waivers—like arbitration clauses—prevent people from accessing the distinctive dignity-vindicating role of courts and degrade their status as legal persons. And because governments may legitimately protect dignity interests, proposed reforms like the Arbitration Fairness Act have an even stronger justification than previously recognized. Boilerplate indignity should, in any event, force us to take a hard look at the dignity interests jeopardized by fine print, interests routinely sacrificed at the altar of commercial expediency.

Members of Congress have recently proposed legislation that would effectively ban the commercial practice of requiring individuals to arbitrate claims of sexual harassment. Congress previously tried in the 1990s to prohibit mandatory arbitration of all discrimination claims, not just those grounded in sexual misconduct. At first glance, these attempts to adopt discrimination-specific reforms appear unprincipled. After all, the criticisms of mandatory arbitration invoked to oppose arbitration of discrimination claims typically apply equally to all claims, not just those involving discrimination. But this Article argues that, regardless of the merits of broader attempts to rein in mandatory arbitration, discrimination-specific prohibitions have a compelling but overlooked justification. Specifically, rectifying wrongful discrimination requires empowering victims to vindicate both their status as equal citizens as well as the status of the groups to which they belong, in the face of challenges to those statuses. Because equal status—both of individuals and their groups—must be guaranteed in part by the public, victims must be empowered to demand reaffirmation of that status by an authoritative public institution. And because a person’s status concerns her treatment across a range of social and institutional settings, fully vindicating that status potentially requires reaffirming her equal status in public. Confidential, private arbitration cannot accomplish these ends. But courts can. Given problems facing existing arguments against mandatory arbitration, the need for a new status-based approach is all the more pressing in the wake of the #MeToo movement.

Some writers have argued that the oath of office that officials take, which includes a pledge to uphold the U.S. Constitution, requires those same officials to embrace originalism. This paper argues that this claim is false even if we assume that some version of originalism is true.

Courts routinely claim that punitive damages aim to punish and deter wrongdoers. But these goals focus exclusively on regulating wrongdoers. As a result, they fail to justify transferring punitive damages awards to victims rather than, for example, state treasuries. After all, punitive damages do not compensate plaintiffs for losses; they are extracompensatory by definition. This fact renders punitive damages vulnerable to the attack that they represent unjustified plaintiff windfalls. After criticizing other attempts to justify allowing plaintiffs to keep punitive damages, this paper offers a new rationale for punitive damages, one that appeals in part to an ideal of resilience that encourages individuals to bounce back better than before the wrongdoings inflicted upon them.

After observing that leading textualists frequently conflate statutory text with law, this paper argues that this conflation: (i) makes, as Mitch Berman has previously observed, a category mistake, (ii) isn't entailed or presupposed by textualism, (iii) causes confusion about textualism, (iv) facilitates opportunistic literalism by textualist judges, and (v) perpetuates myths about the determinacy of appellate adjudication and the ability of appellate judges to avoid judicial lawmaking. Conflating text and law contributes to these problems even by judges who should know better. But the rhetorical practice of treating statutory text as law will likely continue because it is useful: it provides rhetorical cover, allowing textualist judges to dodge thorny questions in legal theory about which there is no consensus, even among textualists.