My current projects include the following:
“The Missing 'California Effect' in Data Privacy Law”
The “California Effect” is a recurring trope in discussions about regulatory interdependence. This effect predicts that businesses active in multiple jurisdictions sometimes adopt the strictest standards that they face in any jurisdiction globally, even if the law does not require global compliance. There is a substantial literature that assumes the existence of California Effects both at the interstate level in the United States and at the international level. Yet empirical evidence documenting their existence and strength is scarce.
This paper investigates the existence of California Effects in data privacy law, a field in which these effects have been predicted to be particularly influential. Its main goal is to understand the extent to which EU law influences transactions between U.S. online services and consumers. Using a range of computational and traditional quantitative techniques, the paper tracks the changes in almost 700 webpages’ privacy policies. The analysis covers two years starting in November 2017, a period that saw the enactment of a new, sweeping data privacy law in the EU. Despite widespread expectations to the contrary, the analysis reveals that most U.S. online services treat U.S. consumers and EU consumers differently, with EU consumers enjoying higher levels of protection. This result indicates that the impact of EU law on the operations of U.S. online services is limited. Moreover, it suggests that California Effects might be less important than is commonly assumed, at least in data privacy law. The paper also discusses the implications of these findings for researchers and policymakers.
“Hunting for Contracts on the Blockchain”
With Julian Nyarko
Discussions surrounding self-enforcing, code-based agreements occupy a significant presence in contemporary contract scholarship. To their proponents, these "smart contracts" can revolutionize how we conclude agreements, with important implications for the law of contracts and judicial institutions alike. Critics are skeptical, alleging that the traditional agreement written in natural language has many desirable features that cannot easily be imitated by its digital cousin. However, we currently lack any empirical evidence to ascertain how smart contracts are used in practice. This project is the first to provide a large-scale, descriptive overview of the landscape of smart contracts implemented on the blockchain platform Ethereum. We obtain information on the code of all ~45,000 verified smart contracts from etherscan.io and use various text analysis methods to analyze their content. We find that 80% of "smart contracts" are copy-pasted code used to create a new token. The remaining 20% are predominantly games, auctions for game items and ponzi schemes. We are able to identify a handful of insurance contracts and escrow services. Beyond those, we cannot find even a single contract that would resemble a traditional, legally enforceable agreement. Our findings suggest that the current debate about the promises and perils of smart contracting is premature. Because we do not yet see any examples of smart contracts that act as a substitute for traditional contracts in a relevant range of applications, it is impossible to make informed predictions about whether and how the technology may impact society at large.
“Are Lawyers' Case Selection Decisions Biased? A Field Experiment on Access to Justice”
With Michael A. Livermore
The lawyer-client relationship is pivotal in providing access to courts, and in many instances, the ability to find and retain a lawyer serves as a sine qua non for a successful claim. This paper presents the results from a field experiment exploring how demographic information (as encoded in the names of potential clients) affects how attorneys across the United States respond to initial inquiries. We find that inquiries from (perceived) White potential clients received responses 26% of the time, while inquires from (perceived) minority potential clients received responses 23% of the time (p < 0.01). We further examine whether the personal characteristics of attorneys as well as the geographic characteristics where they are located are correlated with differential treatment. We find that attorneys who live in more conservative areas of the country (as measured by vote shares in the most recent presidential election) are more likely to preferentially respond to emails from perceived White potential clients. We further find that attorneys who are statistically likely to be White (based on their names) are more likely to preferentially respond to emails from perceived White potential clients. Significant correlations between differential response rates and attorney race remain, even when geographic factors are held constant. While this finding does not provide conclusive evidence for the existence of “taste-based” as opposed to “statistical” discrimination, it suggests that differences in the treatment of different groups may not merely be a reaction to jurisdiction-level factors that affect the expected payoff of lawsuits.
“Hard Core Citation Strategery and the Barely Legal Gaming of Law School Rankings”
With Eric Talley
The recent announcement by US News that it will begin to track and incorporate citation counts in its influential annual law school rankings has re-energized the debate over what ranking criteria and underlying data are “best” or “most accurate.” This paper takes a slightly different aim at the topic. Using a series of simulation approaches calibrated to historical citations data, we consider what sorts of behavioral distortions appear plausible in the presence of a citations-geared ranking system. Our analysis suggests that not only may individual authors manipulate their behaviors to maximize citation counts, but that law schools themselves may distort their policies on faculty hiring and the treatment of co-authorship, all with an eye towards citation "strategery." The normative implications of these incentives are complicated, and many cut in opposing directions.