The Yale Law Journal

Law and Technology


How to Get the Property Out of Privacy Law

Jane R. Bambauer

Privacy law emphasizes control over “your” data, but requiring consent for each data use is unprincipled, not to mention utterly impractical in the AI era. American lawmakers should reject the property model and use a framework that creates defined zones of privacy and clear safe harbors, irrespecti…


ARTificial: Why Copyright Is Not the Right Policy Tool to Deal with Generative AI

Micaela Mantegna

This Essay critiques the inadequacy of copyright law to address the challenges Generative Artificial Intelligence (GAI) poses. By analyzing copyright law’s frictions and inconsistent treatment of technical terms, and challenging the definitions of creativity, this Essay establishes a taxonomy of ind…


The Ethics and Challenges of Legal Personhood for AI

Hon. Katherine B. Forrest (Fmr.)

AI’s increasing cognitive abilities will raise challenges for judges. “Legal personhood” is a flexible and political concept that has evolved throughout American history. In determining whether to expand that concept to AI, judges will confront difficult ethical questions and will have to weigh comp…


Constructing AI Speech

Margot E. Kaminski & Meg Leta Jones

This Essay advocates for a “legal construction of technology” approach to AI speech, challenging the notion that technology disrupts law and emphasizing how law shapes technology based on societal value. Applying the method to four different legal constructions of AI, the authors examine AI within F…



Ganesh Sitaraman

This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. It shows that the tension between service and exclusion is endemic to common carriers, utilities, and other infrastructural services, including technology platforms, and that the American …


Dominant Digital Platforms: Is Antitrust Up to the Task?

Steven C. Salop

Consolidation through mergers and exclusionary conduct by dominant firms can harm consumers and workers and reduce innovation. Digital networks are a particular concern because of barriers to entry. While antitrust law in principle can be strengthened by evolution, new legislation would be a more ra…


Antitrust’s High-Tech Exceptionalism

Rebecca Haw Allensworth

Today, the digital marketplace is dominated by only a handful of tech companies. During the last two decades, American antitrust law has acquiesced to this consolidation not only by failing to evolve from its roots in smoke-stack industries, but also by giving big tech special dispensation under tra…


Market Definition and Anticompetitive Effects in Ohio v. American Express

Aaron M. Panner

With high-tech industries attracting increased scrutiny, the Supreme Court’s analysis of the two-sided market in Ohio v. American Express will be a focus of antitrust litigation.  This Essay argues that, despite the apparent focus on market definition, the Court’s opinion is most persuasive in its c…


The Easterbrook Theorem: An Application to Digital Markets

Joshua D. Wright & Murat C. Mungan

Frank Easterbrook argued that erroneous antitrust convictions are more costly than erroneous acquittals. We find that if he is correct, the optimal standard of proof is stronger than preponderance of evidence. Our conclusion stands in stark contrast to proposals to reduce the evidentiary burdens fac…


The New Antitrust/Data Privacy Law Interface

Erika M. Douglas

Antitrust theory portrays data privacy as a factor, like quality, that improves with competition. This Essay argues that view, though not inaccurate, is incomplete. It offers a new account of how data privacy interests have begun to clash at the margins with antitrust law, particularly in the digita…


The Law of Informational Capitalism

Amy Kapczynski

Informational capitalism brings new dangers of surveillance and manipulation—but also of accelerating monopoly, inequality, and democratic disempowerment. Examining two important new books on the topic, this Review maps the law and political economy of informational capitalism, a domain of rising pr…