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A few years ago, at a conference on the “Law of Cyberspace” held at the University of Chicago, Judge Frank Easterbrook told the assembled listeners, a room packed with “cyberlaw” devotees (and worse), that there was no more a “law of cyberspace” than there was a “Law of the Horse”;1 that the effort to speak as if there were such a law would just muddle rather than clarify; and that legal academics (“dilettantes”) should just stand aside as judges and lawyers and technologists worked through the quotidian problems that this souped-up telephone would present. “Go home,” in effect, was Judge Easterbrook’s welcome. As is often the case when my then-colleague speaks, the intervention, though brilliant, produced an awkward silence, some polite applause, and then quick passage to the next speaker. It was an interesting thought — that this conference was as significant as a conference on the law of the horse. (An anxious student sitting behind me whispered that he had never heard of the “law of the horse.”) But it did not seem a very helpful thought, two hours into this day-long conference. So marked as unhelpful, it was quickly put away. Talk shifted in the balance of the day, and in the balance of the contributions, to the idea that either the law of the horse was significant after all, or the law of cyberspace was something more.

As it has been developed over a period of many decades, administrative law has acquired its own morality. An understanding of the morality of administrative law puts contemporary criticisms of the administrative state in their most plausible light. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. Closely related to what Professor Lon Fuller described as the internal morality of law, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them.

Private online platforms have an increasingly essential role in free speech and participation in democratic culture. But while it might appear that any internet user can publish freely and instantly online, many platforms actively curate the content posted by their users. How and why these platforms operate to moderate speech is largely opaque. This Article provides the first analysis of what these platforms are actually doing to moderate online speech under a regulatory and First Amendment framework. Drawing from original interviews, archived materials, and internal documents, this Article describes how three major online platforms — Facebook, Twitter, and YouTube — moderate content and situates their moderation systems into a broader discussion of online governance and the evolution of free expression values in the private sphere. It reveals that private content-moderation systems curate user content with an eye to American free speech norms, corporate responsibility, and the economic necessity of creating an environment that reflects the expectations of their users. In order to accomplish this, platforms have developed a detailed system rooted in the American legal system with regularly revised rules, trained human decisionmaking, and reliance on a system of external influence. This Article argues that to best understand online speech, we must abandon traditional doctrinal and regulatory analogies and understand these private content platforms as systems of governance. These platforms are now responsible for shaping and allowing participation in our new digital and democratic culture, yet they have little direct accountability to their users. Future intervention, if any, must take into account how and why these platforms regulate online speech in order to strike a balance between preserving the democratizing forces of the internet and protecting the generative power of our New Governors.

Intellectual property protection in the United States has always been about generating incentives to create. Thomas Jefferson was of the view that "[i]nventions... cannot, in nature, be a subject of property;" for him, the question was whether the benefit of encouraging innovation was "worth to the public the embarrassment of an exclusive patent."' On this long-standing view, free competition is the norm. Intellectual property rights are an exception to that norm, and they are granted only when-and only to the extent that-they are necessary to encourage invention. The result has historically been intellectual property rights that are limited in time, limited in scope, and granted only to authors and inventors who met certain minimum requirements. On this view, the proper goal of intellectual property law is to give as little protection as possible consistent with encouraging innovation.

Economic analysis of law usually proceeds under the assumptions of neoclassical economics. But empirical evidence gives much reason to doubt these assumptions; people exhibit bounded rationality, bounded self-interest, and bounded willpower. This article offers a broad vision of how law and economics analysis may be improved by increased attention to insights about actual human behavior. It considers specific topics in the economic analysis of law and proposes new models and approaches for addressing these topics. The analysis of the article is organized into three categories: positive, prescriptive, and normative. Positive analysis of law concerns how agents behave in response to legal rules and how legal rules are shaped. Prescriptive analysis concerns what rules should be adopted to advance specified ends. Normative analysis attempts to assess more broadly the ends of the legal system: Should the system always respect people's choices? By drawing attention to cognitive and motivational problems of both citizens and government, behavioral law and economics offers answers distinct from those offered by the standard analysis.

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Imagine that back in the days when what was good for GM was good for the country, an advisory committee of economists had recommended to the President of the United States that the federal government should support the efforts of volunteer communities to design and build cars, either for sale or for free distribution to automobile drivers. The committee members would probably have been locked up in a psychiatric ward—if Senator McCarthy or the House Un-American Activities Committee did not get them first. Yet, in September 2000, something like this actually happened. The President’s Information Technology Advisory Committee recommended that the federal government support open source software as a strategic national choice to sustain the U.S. lead in critical software development.1 At the heart of the economic engine of the world’s most advanced economies, and in particular that of the United States, we are beginning to take notice of a hardy, persistent, and quite amazing phenomenon. A new model of production has taken root, one that should not be there, at least according to our most widely held beliefs about economic behavior. The intuitions of the late twentieth-century American resist the idea that thousands of volunteers could collaborate on a complex economic project. It certainly should not be that these volunteers will beat the largest and bestfinanced business enterprises in the world at their own game. And yet, this is precisely what is happening in the software industry.

The idea of libertarian paternalism might seem to be an oxymoron, but it is both possible and desirable for private and public institutions to influence behavior while also respecting freedom of choice. Often people's preferences are unclear and ill-formed, and their choices will inevitably be influenced by default rules, framing effects and starting points. In these circumstances, a form of paternalism cannot be avoided. Equipped with an understanding of behavioral findings of bounded rationality and bounded self-control, libertarian paternalists should attempt to steer people's choices in welfare-promoting directions without eliminating freedom of choice. It is also possible to show how a libertarian paternalist might select among the possible options and to assess how much choice to offer. Examples are given from many areas, including savings behavior, labor law, and consumer protection.

Because of science's claim to objectivity, scientific testimony is persuasive and often outcome-determinative. Our adversarial system incentivizes litigants to proffer scientific evidence to support their positions. The task falls on trial judges as gatekeepers to distinguish valid scientific evidence from junk science. Drawing this line is difficult because scientific evidence covers a broad spectrum. The United States Supreme Court has set forth the standard of admissibility of scientific evidence in Daubert and its progeny (the Daubert Standard). Trial judges are supposed to admit scientific evidence only if reliable and relevant under the Daubert Standard. But three decades after Daubert, despite the Court's expressed confidence in trial judges' abilities as gatekeepers, they have a mixed record: trial judges have failed to exclude junk science related to forensic feature-comparison methods, resulting in convictions of people later proven to be innocent. Has the Daubert Standard failed the trial judges? To answer this question, this article takes a deep dive into three decades of Daubert jurisprudence. Based on an extensive caselaw review, this article suggests that the Daubert Standard can be a proper tool to exclude junk science if trial judges focus on the letter and spirit of the Daubert Standard. Using malingering expert testimony as an example, this article illustrates how trial judges can see through smoke and mirrors and exclude malingering expert testimony despite all the trappings of science.