Kenneth A . Bamberger | University of California, Berkeley (original) (raw)

Papers by Kenneth A . Bamberger

SSRN Electronic Journal

Individuals expose personally identifying information to access a website or qualify for a loan, ... more Individuals expose personally identifying information to access a website or qualify for a loan, undermining privacy and security. Firms share proprietary information in dealmaking negotiations; if the deal fails, the negotiating partner may use that information to compete. Regulators that comply with public transparency and oversight requirements can risk subjecting algorithmic governance tools to gaming that destroys their efficacy. Litigants might have to reveal trade secrets in court proceedings to prove a claim or defense. Such “verification dilemmas,” or costly choices between opportunities that require the verification of some fact, and risks of exposing sensitive information in order to perform verification, appear across the legal landscape. Yet, existing legal responses to them are imperfect. Legal responses often depend on ex post litigation that are prohibitively expensive for those most in need, or that fail to address abuses of information entirely. Zero-knowledge proofs (ZKPs)—a class of cryptographic protocols that allow one party to verify a fact or characteristic of secret information without revealing the actual secret—can help solve these verification dilemmas. ZKPs have recently demonstrated their mettle, for example, by providing the privacy backbone for the blockchain. Yet they have received scant notice in the legal literature. This Article fills that gap by providing the first deep dive into ZKPs’ broad relevance for law. It explains ZKPs’ conceptual power and technical operation to a legal audience. It then demonstrates how, and that, ZKPs can be applied as a governance tool to transform verification dilemmas in multiple legal contexts. Finally, the Article surfaces, and provides a framework to address, the policy issues implicated by the potential substitution of ZKP governance tools in place of existing law and practice.

Cyberspace Law eJournal, 2017

The rise of the platform economy has been the subject of celebration and critique. Platform compa... more The rise of the platform economy has been the subject of celebration and critique. Platform companies like Uber, Airbnb, and Postmates have been rightfully celebrated as positively disruptive, introducing much–needed competition in industries that have been otherwise over–mature and stagnant. However, some of the leading new platforms have had such meteoric success that their growing market dominance and technical capacity raise questions about new forms of anti-competitive practices, and negative impacts on consumer and employee welfare. In this Essay, we develop a framework for considering the market power of platform companies that use digital technology to connect a multi-sided network of individual users. Specifically, we use the example of Uber as a lens to identify eight questions that are important for assessing platform power. These questions address the way a range of issues play out in the platform context, including more traditional competition concerns around innovation...

Berkeley Technology Law Journal, 2011

Public Health Law & Policy, 2008

The benefits of overseas outsourcing have come at a cost. Americans enjoy unprecedented levels of... more The benefits of overseas outsourcing have come at a cost. Americans enjoy unprecedented levels of safety and security in the domestically-produced goods they use, food and drugs they ingest, and services they employ. Yet as U.S. firms increase the efficiency of their production, become more competitive globally, and offer better price-quality combinations to their customers by contracting with foreign companies for the production of goods and the provision of services, the mix of economic, legal, and societal forces that serve to protect consumers changes. Widespread revelations of Chinese-manufactured toxic toys and toothpaste, tainted food and drugs from abroad, and the failure of foreign call centers to protect the privacy of U.S. consumer data all illustrate the challenge for domestic governance. Though international trade in goods and services provides clear economic benefits, it can also frustrate consumer protection efforts. This paper provides a conceptual framework for unde...

SSRN Electronic Journal, 2019

At every level of government, officials contract for technical systems that employ machine learni... more At every level of government, officials contract for technical systems that employ machine learning-systems that perform tasks without using explicit instructions, relying on patterns and inference instead. These systems frequently displace discretion previously exercised by policymakers or individual front-end government employees with an opaque logic that bears no resemblance to the reasoning processes of agency personnel. However, because agencies acquire these systems through government procurement processes, they and the public have little input into-or even knowledge about-their design or how well that design aligns with public goals and values. This Article explains the ways that the decisions about goals, values, risk, and certainty, along with the elimination of case-by-case discretion, inherent in machine-learning system design create policies-not just once when they are designed, but over time as they adapt and change. When the adoption of these systems is governed by procurement, the policies they embed receive little or no agency or outside expertise beyond that provided by the vendor. Design decisions are left to private third-party developers. There is no public participation, no reasoned deliberation, and no factual record, which abdicates Government responsibility for policymaking. This Article then argues for a move from a procurement mindset to policymaking mindset. When policy decisions are made through system design, processes suitable for substantive administrative determinations should be used: processes that foster deliberation reflecting both technocratic demands for reason and rationality informed by expertise, and democratic demands for public participation and political accountability. Specifically, the Article proposes administrative law as the framework to guide the adoption of machine learning governance, describing specific ways that the policy choices embedded in machinelearning system design fail the prohibition against arbitrary and capricious agency actions

Duke Law Journal, Nov 1, 2006

Administrative agencies increasingly enlist the judgment of private firms they regulate to achiev... more Administrative agencies increasingly enlist the judgment of private firms they regulate to achieve public ends. Regulation concerning the identification and reduction of risk-from financial, data and homeland security risk to the risk of conflicts of interest-increasingly mandates broad policy outcomes and accords regulated parties wide discretion in deciding how to interpret and achieve them. Yet the dominant paradigm of administrative enforcement, monitoring and threats of punishment, is ill suited to oversee the sound exercise of judgment and discretion. This Article argues that this kind of regulation should be viewed, instead, as regulatory "delegation" of the type Congress makes to

As this Article goes to press, the European Union is embroiled in debates over the contours of a ... more As this Article goes to press, the European Union is embroiled in debates over the contours of a proposed new privacy regulation. These efforts, however, have lacked critical information necessary for reform. For they-like privacy debates generallyfocus almost entirely on law "on the books"-legal texts enacted by legislatures or promulgated by agencies.

Privacy Impact Assessment, 2012

... http://www.9-11commission.gov/hearings/hearing10/ashcroft\_statement.pdf 32 Assuras, Thalia, a... more ... http://www.9-11commission.gov/hearings/hearing10/ashcroft_statement.pdf 32 Assuras, Thalia, and ... to and analysis of an enormous amount of free-standing technical documentation and ... EISs) for federal government action significantly affecting environmental quality.44 The ...

Regulatory Governance in the Global Economy, 2010

In the wake of scandals involving lead toys, toxic toothpaste, poisonous pet food, and other dang... more In the wake of scandals involving lead toys, toxic toothpaste, poisonous pet food, and other dangerous products in recent years, policymakers have proposed a variety of strategies that purport to address safety concerns. Though many of these proposals would have salutary effects on consumer product safety, they do not provide, either individually or collectively, a full solution to the problem. This chapter offers a different proposal for addressing the challenges that global production poses for state-centered regulation of import safety. We argue that regulators should structure administrative penalties to make private importers regulate the foreign manufacturing processes from which they benefit.Specifically, we make the case that where U.S. regulators expect a threat to consumer protection from foreign goods and services, they should augment the legal penalties imposed against foreign and domestic partners in international trade that are within the reach of American authorities. This enhanced threat of legal liability would serve to ensure that these parties act as de facto regulators of the foreign activity from which they benefit, even when those activities themselves are beyond the reach of American law. Trade in domestic goods and services would not trigger the same penalties because these products face regulation of the production process that, in principle, achieves the desired level of safety.

SSRN Electronic Journal, 2002

the rule of strict stare decisis, when a court construes a statute before an agency does, the jud... more the rule of strict stare decisis, when a court construes a statute before an agency does, the judicial interpretation becomes binding precedent, even when Congress has delegated primary interpretive authority to the agency. In this Article, Kenneth Bamberger argues that the Supreme Court's adherence to this strict rule of precedent for the interpretations of administrative statutes undermines the separation-ofpowers justifications for agency administration and jeopardizes effective policymaking. He illustrates how the Supreme Court's decision in United States v. Mead, which limits the types of agency constructions that deserve judicial deference, dramatically increases the opportunities for courts to interpret statutes on their own. In response to the constitutional and normative disconnects caused by judges' enhanced ability to commandeer agency discretion, Bamberger proposes a model of provisional precedent as an alternative to strict stare decisis. This approach, based on the federalism model that governs federal court adjudication of state law issues, gives stare decisis effect to reasonable judicial constructions of regulatory statutes only until governing agencies make binding interpretations of their own. 1272 Imaged with the Permission of N.Y.U. Law Review PROVISIONAL PRECEDENT tion itself. Under this "incorporation" approach, 4 courts' interpretations become "part of the warp and woof of the legislation," 5 and in certain respects "as much a part of the statute as the text itself." ' 6 The statute "now says what the court has prescribed" 7 until Congress amends it. The deference doctrine adopted by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 8 operates according to different principles: ambiguous terms in regulatory statutes can bear multiple meanings; the choice between them is appropriately guided by policy concerns; and those policy choices belong to the political branches, notably to executive agencies, rather than to the judiciary. 9 Chevron provided a separation-of-powers grounding for the administrative state. Because Congress, the branch of government vested by the Constitution-with the power to make laws, 10 delegates primary interpretive authority to agencies when it leaves ambiguity in regulatory statutes, agency policymaking has a protected place within our constitutional scheme. When Chevron applies, courts are prohibited from substituting their own statutory constructions for an agency's reasonable interpretation." Agencies, not courts, get to interpret statutory ambiguity "first and foremost."' 2 Despite Chevron's profound departure from the general principle that courts are the primary interpreters of the law,' 3 the Supreme 4 See Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43, 44 (1993) ("The 'incorporation' conception posits that judicial constructions of enacted law enter into and become part of the instrument being construed."). 5 Francis v. S. Pac. Co., 333 U.S. 445, 450 (1948). 6 As the Court explained in Douglass v. County of Pike: After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment.

The Yale Law Journal, 2008

Who should ensure that statutes are interpreted to reflect background norms left unaddressed by C... more Who should ensure that statutes are interpreted to reflect background norms left unaddressed by Congressnorms like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and the separation of powers? On the one hand, courts have traditionally sought to protect these constitutionally inspired values by applying "normative" canons of construction. On the other hand, after the Supreme Court's Chevron decision, authority to interpret unclear regulatory statutes generally belongs not to judges, but to agencies. This question has polarized courts and commentators. A majority, including the Supreme Court, adopts a categorical approach in which canons "trump" Chevron, displacing the agency's interpretive role altogether. A minority, including the Ninth Circuit, concludes the opposite: that courts should not apply canons, but instead should leave full interpretive discretion to agencies. This Article rejects both categorical approaches and proposes an alternate analytic framework. It argues that whether an agency policy comports with background norms should be considered as part of Chevron's case-by-case, step-two inquiry into whether the policy is reasonable. Unlike the categorical approaches, this context-sensitive solution creates incentives for robust agency norm protection in the first instance, but also permits courts to apply normative canons independently when administrative decisionmaking either offers little advantage, or fails to account for the background values it implicates. This solution also cabins judicial discretion to resolve broader policy questions and compels courts to be clearer about when, and why, different canonic formulations should apply and the implications for agency input. In sum, it best enlists the capacity of the administrative state to promote accountable and informed deliberation on the balance between regulatory goals and norms of constitutional dimension.

Law & Policy, 2011

While the turn from traditional regulation to more collaborative, experimentalist, and .flexible ... more While the turn from traditional regulation to more collaborative, experimentalist, and .flexible forms of governance has garnered significant academic focus, far less attention has been paid to the effects of such "new governance" approaches on regulated firms' understanding of the laws' demands, and on the structures employed within business organizations to meet them. This article targets this analytic gap by examining internal corporate practices regarding consumer privacy, an arena in which the Federal Trade Commission and the states have adopted new governance models. Using data from qualitative interviews with leading corporate Chief Privacy Officers, as well as internal corporate documentation, it examines the way privacy practices have been catalyzed in the shadow of new privacy governance approaches and the combination of regulatory, market, and stakeholder forces they seek to harness. Specifically, it suggests the convergence of a set of practices adopted by privacy officers identified as "leaders," regarding both high-level corporate privacy management and the integration of privacy into entity-wide risk management goals through technology, decisionmaking processes, and the empowerment of distributed expertise networks throughout the firm.

Communications of the ACM, 2013

Seeking to address the challenges of privacy by design through regulatory process and formal law.

Texas Law Review, 2010

... financial meltdown. Additionally, technology frequently lacks transparency, creating an addit... more ... financial meltdown. Additionally, technology frequently lacks transparency, creating an additional layer of obscurity for those seeking to monitor business operations and compliance inside and outside the firm. By technology's ...