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...
Entrepreneurial Liberty in the Age of AI
By Kevin Frazier - Edited by Shriya SrikanthKevin Frazier directs the AI Innovation and Law Program at the University of Texas School of Law and is a Senior Fellow at the Abundance Institute. Introduction The American Dream is unattainable for too many hard-working men and women. It's not for lack of effort, will, or talent and it’s not solely because of artificial intelligence. [1] Other factors are much more to blame. Congress must avoid the temptation to overreact to AI—the latest but not last general purpose technology...
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.