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68 Buff. L. Rev. 559 (2020)
Data Management Law for the 2020s: The Lost Origins and the New Needs

handle is hein.journals/buflr68 and id is 575 raw text is: 

   Buffalo Law Review

   VOLUME 68               APRIL  2020             NUMBER 2

      Data Management Law for the 2020s:
      The Lost Origins and the New Needs

                     PRZEMYSLAW PALKAt
    In the  data analytics society, each individual's disclosure of
  personal information imposes  costs on others. This disclosure
  enables companies, deploying novel forms of data analytics, to infer
  new  knowledge about other people and to use this knowledge to
  engage in potentially harmful activities. These harms go beyond
  privacy and  include  difficult to detect price discrimination,
  preference manipulation, and  even social exclusion. Currently
  existing, individual-focused, data protection regimes leave law
  unable to account for these social costs or to manage them.
    This Article suggests a way out, by proposing to re-conceptualize
  the problem of social costs of data analytics through the new frame
  of data management law. It offers a critical comparison of the two
  existing models of data governance: the American  notice and
  choice approach and  the European  personal data protection
  regime  (currently expressed in the  General Data  Protection
  Regulation). Tracing their origin to a single report issued in 1973,
  the Article demonstrates how they developed differently under the
  influence of different ideologies (market-centered liberalism, and
  human   rights, respectively). It also shows how both ultimately
  failed at addressing the challenges outlined already forty-five years
    To  tackle these  challenges, this Article argues for three

t Research Scholar at Yale Law School, Fellow in Private Law at Yale Law School
Center for Private Law and a Resident Fellow at the Information Society Project
at Yale Law School. For invaluable comments and conversations, I thank Daniel
Markovits, Jack Balkin, Filipe Brito Bastos, Julie Cohen, Nikolas Guggenberger,
Johan Fredrikzon, Claudia Haupt, Agnieszka Jablonowska, Thomas Kadri,
Bonnie Kaplan, Kate Klonick, Hans Micklitz, Giovanni Sartor, Rory van Loo and
participants in the YLS ISP Writers' Workshops in January and July 2019, and
the 8th Annual Conference of the Younger Comparativists Committee (YCC) at
McGill University Faculty of Law in May 2019.


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