Spring 2025
Featured Article
The Contractual Death and Rebirth of Privacy
Robin Bradley Kar & Xiaowei YuThis Article proposes, for the first time, the application of “shared meaning analysis” — a method of contract interpretation grounded in traditional contract principles, as developed in Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019) (“PseudoContract”) — to online privacy policies. The method identifies when policy text adds enforceable terms to a contract, as opposed to mere unenforceable boilerplate, addressing an underappreciated paradigm slip in contract law that is enabling widespread digital surveillance. Consumers routinely click “I...
Against an AI Privilege
By Ira P. Robbins - Edited By Millie Kim and Shriya SrikanthIra P. Robbins is Distinguished Professor of Law and Barnard T. Welsh Scholar, American University Washington College of Law. Introduction Artificial intelligence (AI) systems are embedded in daily life, from writing assistance and customer service to medical triage and legal research. As people grow more accustomed to relying on conversational AI tools for advice, support, and reflection, the question arises whether communications with such systems deserve protection in court under the rules of evidence akin to attorney-client, psychotherapist-patient, or spousal...
The Contractual Death and Rebirth of Privacy
This Article proposes, for the first time, the application of “shared meaning analysis” — a method of contract interpretation grounded in traditional contract principles, as developed in Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019) (“PseudoContract”) — to online privacy policies. The method identifies when policy text adds enforceable terms to a contract, as opposed to mere unenforceable boilerplate, addressing an underappreciated paradigm slip in contract law that is enabling widespread digital surveillance. Consumers routinely click “I agree” to online privacy policies — which purport to permit cookies, other tracking devices (like pixels and SDKs), and AI-driven data analysis — without reading or comprehending their text, leading to massive transfers of personal information that erode privacy, facilitate consumer and political manipulation, and threaten freedom and democracy. Critiquing the binary debate over whether online privacy policies are contracts at all, this Article argues for a more nuanced reform: courts, operating within their common law authority, should revive privacy by focusing contract interpretation on the shared meanings of any contracts over privacy formed in digital contexts. Through examples involving policy scope, unilateral modifications, and conflicts between shared meaning and deceptive boilerplate, this Article demonstrates how contract interpretation — once returned to its rightful focus on shared meaning — can be used to counter modern surveillance harms without requiring new legislation, complementing other privacy frameworks and restoring the proper moral relationship between contract and privacy.