It is now generally understood that personal data––that is, data that relate to individual consumers––drive digital markets. Personal data underlie targeted advertising, which draws billions of dollars into ad-supported markets. Personal data are useful for other purposes as well. Firms in digital markets rely on personal data to deliver their core products and services––we refer to these collectively as “web services”1––to hone and improve them, and to recommend related products and services. These data facilitate innovation, allowing yet more services and “smart” products with increasingly personalized functionalities. Personal data can allow governments to deliver better public services, such as transportation systems, or can help researchers better understand how humans interact with algorithms and which policies might best serve society. And data can also facilitate competition, by improving quality and providing insight into consumer conduct that encourages entry. In these various ways, the massive quantity of personal data currently collected undoubtedly contributes to consumer welfare. But there also are downsides to the collection and use of personal data on such a grand scale. “Surveillance capitalism,” as Professor Shoshana Zuboff has termed it, has blurred the line between the personal and the public, and has commodified our habits, interests, and beliefs in ways that can feel distasteful and invasive. Massive data collection also has made information about us more accessible to government and commercial actors who often face little to no accountability for its misuse.

This Article is concerned with competition in digital platform markets where network effects are strong. As is widely acknowledged, these markets have an inherent tendency towards concentration, leaving consumers with little competition in the market. We explain how interoperability regulation can help stimulate competition in the market in a way that benefits consumers. There are different types of regulations that involve different levels of regulatory control of firms’ strategies and products. Interoperability is a form of regulation that is less intrusive than many others and is particularly suited to digital business models and fast changing digital technology. The report solicited by the European Commission on “Competition Policy for the Digital Era” (the Vestager Report) made this point in 2019,1 and we build on it here. Policy tools in this area include data portability and open standards, as well as interoperability. We will distinguish among these tools below, but we note here that the focus of this Article is on interoperability.

What shapes judicial temperament? What hones judicial style? Seeing as judges are grown in neither a hothouse nor a test tube, presumably they attain their temperament and style much the same way as the rest of us—which is how, exactly? Do we soak up influences like sponges? Or do we spring forth like Athena, our outlook and predilections mostly formed, and find in outside influences that which we want to see? I am not qualified to answer these questions, about either judges or people in general, yet they are the questions that Bernadette Meyler’s lovely piece on Cardozo’s Literary Precedents prompts for me. I will suggest here that Meyler’s piece identifies and rejects some bad answers to these questions and also hints at some more intriguing possibilities.

Benjamin Cardozo penned his essay “Law and Literature” long before the field of law and literature took off in the 1970s.1 The piece, which furnishes a typology of judicial styles, has become a classic early example of engagement with the intersection of the two areas.2 “Law and Literature” fits squarely within what is now called the genre of “law as literature,” considering the literary attributes of legal writing.3 Reading it, one might never imagine that Cardozo had also considered works of fiction in depth. Indeed, few know of his early study of literature, including his heretofore unpublished undergraduate paper on novelist George Eliot.4 Although this earlier work does not touch on law explicitly, it demonstrates the emergence of Cardozo’s concerns with duty, causation, and responsibility even before he became a judge, presaging the account of morality furnished in The Nature of the Judicial Process. It also helps to flesh out the reasons why, as he claims in “Law and Literature,” style is so significant.

Benjamin Cardozo is associated with the common law, equity, judicial decision-making, and with a characteristic kind of proto-Realism. And in his day he was the most prominent expositor of the law of New York, a jurisdiction that had led the way in the merger of law and equity. So it is with equity. Equity pervades Cardozo’s work as a theme of the law and as a problem in judicial theory, in both his theoretical writings and in his decisions. In The Nature of the Judicial Process, Cardozo invokes equity when introducing the problem of reconciling the need for both certainty and flexibility in the law. And equity plays a large role in the modes of judicial decision-making he identifies—the philosophical, the historical, the customary, and the policy-oriented. This last, or sociological, method is the “arbiter” of the others in a way suggestive of equity’s role as meta-law. Because this approach to equity could only emerge from its application, it is not surprising that cases in the area of equity would receive his special attention as a judge. Most clearly in some headline equity cases but going far beyond them, Cardozo’s vision for the integration of equity and law was functional rather than primarily jurisdictional. Equity for Cardozo both kept the law to a high moral standard and supplemented and corrected the law in limited circumstances. Sometimes Cardozo’s reformulation of equity in this functional sense reformed the law so subtly as to be easy to miss. Seen in the light of later full-blown Legal Realism, Cardozo’s equity is easily mistaken for a version of Realism in its rhetoric but disappointingly cautious in its results. Cardozo’s equity was a genuine path not taken and one that perhaps still could bring equity into the modern age.

Revisiting The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921, presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal “path,” or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases.

Since at least the time of Blackstone, scholars have identified the “uncertainty” of the common law as a problem that is endemic to its functioning. Indeed, to Blackstone the idea was “so generally adopted” that any attempt to “refute it” was likely to result in ridicule. Yet, even to him, the precise source of the uncertainty was something of a mystery, variously attributed to the multiplicity of laws and judicial decisions, the resulting abundance of potentially contradictory rules, and the heightened discretion afforded to judges to declare the law in individual disputes. All the same, to Blackstone, the fault—if any—was not with the common law but with the nature of laws more generally. As he wrote: It has sometimes been said [that uncertainty] owe[s] its original to the number of our municipal constitutions, and the multitude of our judicial decisions; which occasion, it is alleged, abundance of rules that militate and thwart with each other, as the sentiments or caprice of successive legislatures and judges have happened to vary. . . . People are apt to be angry at the want of simplicity in our laws: they mistake variety for confusion, and complicated cases for contradictory.

Revisiting The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921, presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal “path,” or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases.

Unlike many Supreme Court Justices, Benjamin Cardozo led a rather humdrum existence outside of the courthouse, and it is quite clear that he was not especially interested in or adept at all versions of the game of social life. One wonders whether Cardozo was a man who was comfortable in his own skin. The Nature of the Judicial Process tells us that at least in one very important dimension of his life, he was indeed comfortable in his own skin, he was his own man, and he was quite unapologetic for who he was. The book and the lecture series that spawned it reveal a person supremely comfortable reflecting on what he did in his job, all in the knowledge that what he did in his job was good and right and indeed exemplary for those who hold that position. Sufficiently exemplary, indeed, to warrant a whole book of reflections on what he did. One might view this as immodesty on Cardozo’s part, but I view it quite the opposite way. Here was someone for whom the job of legal interpretation and appellate judging was a special comfort zone. And even within that comfort zone, there were multiple and quite sincere expressions of humility. Cardozo saw himself as a public servant lucky enough to have an interesting job that was of considerable importance to his state and his nation.

This special issue of the Yale Journal of Law and the Humanities contains papers presented at a March 2022 conference at Yale Law School marking the centenary of the publication of Benjamin Cardozo’s The Nature of the Judicial Process. (The pandemic foiled our efforts to time these events more precisely.) One of us (Barzun) came up with the idea, and the two of us, together with Daniel Markovits, Benjamin Zipursky, and Konstanze von Schütz, planned the event and this volume. We can think of no more apt publisher for the conference papers than the Yale Journal of Law and Humanities. As a person of letters and science with both pre-modern and modern sensibilities, as someone both of and not of this world, and as a jurist who was unsentimental yet devoted to the cause of human dignity and welfare, Cardozo approached the law first and foremost as a humanist. The papers here collected—which range from the historical to the philosophical to the literary—are offered in the same spirit. One may ask whether the hundredth anniversary of the publication of Cardozo’s book is an occasion worth marking. Judge Richard Posner observed in his contribution to the centennial issue of the Harvard Law Review that because “a journal has no natural lifespan, the fact that it is 100 years old should interest only people who have a superstitious veneration for round numbers.” A book’s publication date may have an even weaker claim for recognition since it does not even give birth to an institution with a “lifespan” at all, natural or otherwise.