Regulating Emergent Tech After Loper Bright

 [Meg O’Neill] 00:02

Hello and welcome to the Berkeley Technology Law Journal podcast. My name is Meg O’Neill, and I’m an editor here at the podcast. We are excited today to share a conversation between Berkeley Law student Hananya Sunderraj and Dr. Michele Neitz, a professor at the University of San Francisco School of Law, and the founder and director of USF Center for Law, Tech, and Social Good. Their discussion today focuses on the difficulties of regulating emergent tech in light of the Loper Bright decision and on Professor Neitz’s ideas about how to prepare the courts for an uncertain future in the tech regulatory landscape. In Professor Neitz’s article “Ready or Not: How Congressional Dysfunction in Loper Bright Enterprises v. Raimondo Will Shift U.S. Regulation of Emergent Technologies to the Federal Bench,” she warns that courts and judges are ill-prepared for the influx of litigation that will require specialized knowledge. She points particularly to the regulation of new technology, which even the biggest players in the tech industry struggle to predict and understand. Professor Neitz observes that because Congress will likely continue to be slow to react, courts will be relied upon to provide answers to these increasingly high-tech questions. She suggests that judicial education and the creation of specialized technology courts could address this problem. We hope you enjoy the episode.

 [Hananya Sunderraj] 01:29

Hello, Professor Neitz, I’m Hananya, and I’m with the Berkeley Tech Law Journal podcast. It’s a pleasure to have you here today.

 [Michele Neitz] 01:37

Thank you so much for having me today.

 [Hananya Sunderraj] 01:39

You are a visiting professor at the University of San Francisco School of Law, the founding director of the Center of Tech and Social Good, the author of “Ready or Not,” which is the amazing article we have been referring to. You’ve also been a part of the blockchain working group, so you’re doing some really exciting things in terms of emerging tech and fostering social good within this landscape. What drew you to this intersection?

[Michele Neitz] 02:10

 Thanks so much for the opportunity to discuss my work with your podcast. I first became interested in blockchain in 2017, but I’ve been an ethicist and law professor since 2006. My work is really focused on understanding the power dynamics that can happen within the legal profession, within law schools, within corporations, and as of 2017, within emerging technologies. I became very interested in the idea of decentralized technologies, wondering, well, first of all, who would you arrest if there was a problem? Also, what are the ethics behind these decentralized technologies? That issue really led me to publish a couple of articles around this that got the attention of the governor’s office, and I was appointed in 2019 to the California Blockchain Working Group, as you mentioned. This is where I learned so much about the potential that this technology has for really making the world more equitable, for bringing people along, especially populations who traditionally have been left behind when there’s technological developments.

That really led me to think about the way that law and regulation can play a role in pushing these technologies toward social good. And that’s why I started the center in 2022 and came over to USF in January of 2023, really looking at how we can have an interdisciplinary approach as lawyers to considering the ways in which we want to see these technologies develop.

[Hananya Sunderraj] 03:56

 I think that sounds fantastic. It’s also the kind of intersection that I’m really interested in, and I also think this is just such a good jumping point to understand the Chevron doctrine and how this has really impacted the legal regulatory space. From my understanding, the Chevron doctrine empowered executive agencies to be frontline responders to statutory ambiguities in the regulatory space. Is that understanding correct? 

[Michele Neitz] 04:27

 Yes, the Chevron doctrine, which is named after a case in which the Supreme Court established this doctrine, required federal courts reviewing cases to give deference to agency interpretations if a statute was ambiguous. If a statute was unclear and an agency made a decision on an issue, such as whether a particular drug or medication was safe and legal, a court would have to defer to that decision.

 [Hananya Sunderraj] 04:57

In June of this year, the Supreme Court decided Loper Bright, which overruled 50 years of precedent of Chevron. But I’m wondering if you can speak to the impacts that we’re already seeing within the regulatory space.

 [Michele Neitz] 05:11

 Sure. After the Loper Bright Enterprises case, courts are now required to exercise their independent judgment when they are reviewing agency determinations. What this means is that courts no longer have to defer to an agency’s interpretation of a particular statute. They can exercise their own independent judgment around an interpretation of that statute.

 [Hananya Sunderraj] 05:39

What do you think this means for tech regulation?

[Michele Neitz] 05:43

I think this is going to have a very big impact on tech regulation and law. A few things that I see coming: first of all, cases are brought to judges that are very narrow, right? Courts can only decide the cases that are right in front of them. I think we’re going to start seeing narrow decisions that apply only to these facts of this case, that folks will then have to figure out in the industry. Well, does that mean that this case holding would apply to my particular business? We also have the potential of disparate rulings. Right? A court in New York can decide something different. The Ninth Circuit could decide something different than the Second Circuit. A court in New York could decide something differently than a court in California. And so, we’re not going to have the uniformity of regulation that, frankly, the industry has been asking for for a very long time. I also think we’re going to see more litigation coming out of this decision. As business folks and those who are challenging plaintiffs and defendants, both those who are in the business or those who are challenging a business, are going to be able to go to court to ask a judge to render an independent judgment. This means we’re going to see a lot more litigation and an increasing cost of compliance with whatever these laws turn out to be. So I’m concerned that Loper Bright is going to create a wealth bias when it comes to emerging technology law, where corporations will have to hire lawyers to litigate matters in courts, and those who can hire the most lawyers are going to be the ones who win, and the startups who maybe can’t afford to hire a full legal team to litigate something for two years, those folks are going to be out of luck, and so that wealth bias is concerning to me. And lastly, I think that Loper Bright is really going to upset the balance that we have been trying to reach for a long time at both the state and federal level of protecting consumers while also promoting innovation, and so there’s a lot of concern, as we can talk about, around “will the United States continue to be a place where innovative companies want to create and sustain their businesses?”

 [Hananya Sunderraj] 08:14

 I just had one follow up with that, while we do understand that it will be difficult for courts to regulate within these spaces, my understanding is that it was quite challenging even for the executive to regulate within these spaces, and there were disparities between how different executive branches responded to different solutions. So how exactly do you think this is a distinct challenge from that, and then what other impacts will be seen through the courts being at the forefront of this?

 [Michele Neitz] 08:47

 Well, you’re absolutely right that we have seen very different reasonings coming out of executive agencies. And in fact, folks in the industry, especially in the digital asset industry, are really referring to this as a turf war when it comes to digital assets, between the SEC and the CFTC as an example. So yes, we do not have uniform regulation of emerging technologies right now. And a lot of folks will point the blame at Congress, who has failed still to create any sort of comprehensive legislative framework for digital assets, for example, in the blockchain space, or for AI, and the fact that it’s taken them so long to even try to get bills, despite many bills being introduced—it’s taken so long for Congress to pass any bills—means that that has allowed the turf war between the agencies to just continue. So I think as courts don’t have to defer to agencies anymore, we’re introducing a new actor into this space. Judges have always had a role in policing and in regulating, but it has been very limited to the cases brought before them. And so I do not think the Loper Bright case is going to give us that uniformity that folks are looking for. So we’re just introducing someone else now into the mix to create new laws that may even be at variance with what the agencies have decided.

[Hananya Sunderraj] 10:26

In your paper “Ready or Not,” you argue that Congress is moving too slowly to deal with the implications of Loper Bright. The judges are not prepared, and you do propose a lot of solutions. I just want to explore this wonderful paper and start from the very basic: your definition of emerging tech. What are you including within this heading?

[Michele Neitz] 10:50

 Yes, as I wrote this paper, that was one of the things I really had to think about, because we do not have a legislative definition of the term emerging tech, or emergent tech. In fact, we don’t even have a federal legislative definition of blockchain or digital assets or AI that has actually passed Congress. So when I was writing this paper, I decided that I was going to rely on a framework that I think is comprehensive and yet is still short. And that was a framework created in 2015 that was published by academics that offers five attributes that makes emerging technology different from traditional technologies.

 The first is the radical novelty of the technology. I mean, is it really very different? The second attribute is, is there relatively fast growth? And that is certainly true for the blockchain space as well as the AI space. The third is the coherence of that technology, and the fourth is whether or not that tech is making a prominent impact. And on both of those attributes, I would argue that we were seeing a lot of new technologies. We’re really living in a time of innovation where we’re seeing a lot of technologies with a very prominent impact on business and society. And then the fifth (and this one, anybody working in this space will recognize) is uncertainty and ambiguity, right? What is it exactly? How does it work? How should we regulate it? That’s different than traditional technologies, even different than like, the internet, which we have already figured out what it is and how we should regulate it. When you look at these five attributes, it can really include everything, right, from AI and robotics, 3D printing, internet of things. You could look at drones in this way. You could look at blockchain in this way. But as I wrote this paper that will be published by the Southern Methodist University Law Review in March of 2025, this is really what I thought was a strong definition, strong framework, I should say, of definitions.

[Hananya Sunderraj] 13:08

That is really fascinating, to understand what this broad area of law could be put into. I just wanted to ask, how do you think Loper Bright has changed the way we regulate emerging tech?

[Michele Neitz] 13:22

Well, this is what is exciting about being in emerging tech law, right? That we don’t really know yet the ways in which this is going to change emerging tech, but we can think about what we see coming and what our predictions might be. As I said earlier, I really think we’re going to start seeing much more litigation, more jobs for lawyers in this space, as companies are going to be forced to go to court to figure out important things without relying on congressional legislation or on agency interpretation, which now just may be overturned. In fact, we’re already seeing this in some ways, with one decentralized finance company called Uniswap Labs, arguing a few days after the Loper Bright decision was announced, that they don’t think the agency should take the time, that the SEC should take the time to ask them to respond to amendments, a particular issue related to an amendment, since a court’s likely going to decide it anyway, right? And so there we might end up seeing less cooperation with agencies as a consequence of folks realizing we’re just going to end up in court now after Loper Bright anyway.

[Hananya Sunderraj] 14:39

This was also a response I saw coming, where now people are questioning the legitimacy of executive agencies. In light of that, do you think the courts can effectively take on the role while maintaining people’s confidence? 

[Michele Neitz] 14:55

Some people would say anything would be better than what we currently have. Maybe judges can provide some of the certainty that we have been looking for, but I don’t think judges have been trained to regulate. That’s not their job, right? The job of judges is not to create uniform rules that can apply regardless over the next decade, the way that Congress is supposed to do. Judges can only handle the cases that come before them, which means that there’s going to be a very broad array of issues that will remain untouched unless someone is able to litigate on it, which again, takes me back to the wealth bias, unless someone has the resources to be able to go to a federal court and litigate on this.

[Hananya Sunderraj] 15:47

Within your paper, you propose two solutions to this very issue, one is judicial education, and one is the formation of tech courts. Can you walk us through these two solutions?

 [Michele Neitz] 16:02

I have been an academic for almost two decades. So of course, I think education should be part of the solution. But I think education is more than just training judges, although I do think judges are going to need much more training around emerging technologies. I also think that judges should have somebody in chambers who is a tech expert, someone who is very well versed in emerging technology, who may even be a technologist, that a judge could turn to for these cases and say, “Can you help me understand the underlying technology behind, for example, this digital assets case?” Congress already has those tech experts. There is actually an organization, a nonprofit, called Tech Congress, that offers tech experts to be able to work in congressional chambers. Executive agencies usually have experts as well, but judges do not. So, if we’re going to be moving so much of what’s happening in this space into courts, back to my power dynamics, the power will land with the judges. They need to be trained in these things. But since judges, especially in district courts, and especially given the fact that our federal bench is really underfunded and our judges are very overworked right now, I don’t think that it’s going to be realistic to ask every single judge to follow what’s happening in this very fast paced environment. So that’s why I am proposing what could be considered a controversial solution, but I don’t see a controversy in it. I think federal courts should have specialized courts for emerging technology cases. I’m calling this tech courts in which judges could self-select to be placed on the tech court bench, and they would then handle the emerging technology cases as they’re coming up, and they would develop a very specialized expertise that would enable those cases to move much more quickly than they would in an ordinary underfunded, overworked, district courtroom.

[Hananya Sunderraj] 18:27

I think it is so exciting that you’re speaking about judicial education in this very specific way. You have educated legislative and government officials before on emerging tech. How likely do you think it is that judges will take to the education with the same kind of enthusiasm as government officials? Do we need some kind of incentive structure, or is it even practical to expect that they will proactively seek this out?

 [Michele Neitz] 18:58

Yes, I have trained hundreds of government officials over the last couple of years through the Center for Law, Tech and Social Good here at USF. I actually started the center because I felt that there was not enough training of government officials, particularly at the state and local level, around what is blockchain? What is AI? How will these affect our jobs? How will these affect our constituents? I have also worked for judges. I clerked in the Southern District of California before going into practice, and then academia. I think judges, like legislators and others, will be very eager to learn. I don’t think it’s about asking judges or forcing judges to learn about this technology. I think it’s the fact that emerging technology has such a high learning curve. We have so many overworked judges on the federal level, and I’m including their clerks and court staff. I mean, there is a bill pending right now to increase the number of federal judges on the bench to help to fill the vacancies, but it hasn’t been passed yet. It’s sitting in House committee right now. And so, with so many judicial vacancies, I think judges simply don’t have the time or the support that other government officials would, for example, those in Congress or those in executive agencies, to be able to understand this. I think this is more about the logistics of creating the time and space for judges to be able to do this more than incentivizing judges or thinking that judges will not be enthusiastic about this.

 [Hananya Sunderraj] 20:48

Before we jump into the idea of exploring judicial education further, I also wanted to ask about your tech court solution. So how are these specialized courts really established? Does setting up of it require action from Congress? And then how do we get over the same hurdles we’re talking about in terms of congressional inaction?

 [Michele Neitz] 21:14

This is a great question. The short answer is yes, we would need action on the part of Congress to establish tech courts. I really hope we do not get to a crisis in the federal courts before something is done. But if overloaded dockets, overloaded courts are backed up, it could be that innovation becomes halted, and that would especially be true if there was a circuit split on a critical issue. In that case, as I, as we, we think about this further, that would mean that a lot of constituent businesses would consider leaving the United States for jurisdictions that have more regulatory clarity, like the EU for example. If constituent businesses are leaving the US, that may be enough to jump start Congress into saying, wait a minute, there’s too many cases in the courts, the federal bench is overloaded and cannot handle these cases in a timely enough manner for innovation to continue, we need to establish some sort of change in the courts in order to fix this problem. And so I’m hoping to offer this as one of those solutions that Congress could consider. And I hope that we would establish this before we would get to that level of crisis in the courts.

 [Hananya Sunderraj] 22:42

Like you described, the regular courts will have a crisis. So how do you say that tech courts will also not be vulnerable to these same problems, especially given the nature of emerging tech and how it’s so hard to anticipate where it will go for all the actors involved?

 [Michele Neitz] 23:03

It’s definitely hard to keep up with the pace of emerging technology. In fact, one of the questions I often get from attorneys and law students is, how do you keep up with what is happening? For me, this is one of the exciting parts of this space. It’s always changing, and I’m always learning, and so that’s why I really enjoy working in this space. For tech court judges who would have some sort of specialized training and support in the underlying foundations of these technologies, like AI, like digital assets, like Internet of Things, for example, they would be able to come up to cases with a much deeper understanding and a much deeper background knowledge around the technology. The learning curve, initially, as cases are coming at them, would not be as high as it would be for a district judge who is spending a lot of time on many different types of cases. Tech court judges certainly would have to get up to speed on the technology and the cases that they’re seeing. But I think it’s it would be easier for them to handle these cases, because they would have specialized training already, and certainly if they have a tech expert in chambers, whose job it is to advise the judge on what is going on, what is the technology within this case, that would also enable them to keep up much more easily than it would for a district court judge with a normal docket.

 [Hananya Sunderraj] 24:38

 These are our fascinating solutions. While you’re talking about tech experts, you’re talking about judicial education that contains both gender education and technical education to ensure that there is balanced and fair oversight. I’m thinking about who essentially would be involved in creating the judicial education programs, and who will be appointed as these mutual tech experts within chambers.

 [Michele Neitz] 25:08

This is a great point, because there is still the chance that biased experts would be the ones who we have hired to train the judges. We certainly would have to rely on the discretion of judges to ask critical questions, particularly, for example, if they were hiring a tech expert for their chambers to make sure that there isn’t that level of bias toward or against a particular industry. But judicial education programs actually could be re-imagined. You could think about it as the way that advisory bodies to legislative officials work. For example, on the California blockchain working group, that group had government officials from the state. It had industry experts, it had particular field experts, like we had a couple of privacy experts, cyber security experts, as well as academics like myself. And so, I think when it comes to judicial education programs, we could come up with a diverse set of viewpoints in educating judges that might enable us to neutralize some of the bias that we’re concerned about.

 [Hananya Sunderraj] 26:26

 I think the kind of interdependence you’re speaking about will also just help in terms of understanding what we are looking at in terms of an industry standard, of a framework. The next question I have is mostly in terms of inviting neutral tech experts with specialized knowledge to assist judges within their chambers at a full-time capacity. What advantage does this approach essentially have, as opposed to calling on experts on a case-to-case basis?

 [Michele Neitz] 26:57

I think I have two answers to your question. So first, my hope is that we can hire tech experts in chambers before a big question arises in an innovative case, so that judges can approach these cases as they come in with this deeper level of knowledge. To me, that is different than realizing, “Oh, I don’t understand this particular part of a case,” and searching for an expert who could help right here, right now, on a tight time crunch, because I have a 12(b)(6) motion to dismiss pending or something like that. So having the expert in-house, I think, really would enable the judges to feel more confident and to have better understanding, a deeper level of understanding, before those problems arise. And then my second answer really is about, who are these experts that the judges are calling on? What are their biases? If we could have tech experts applying for full time jobs in chambers, as opposed to those who would just pick up a phone when a judge calls them or the judge’s staff calls them, I think we could screen these experts for bias more easily.

Now, a counter argument to my proposal would be, this is expensive, right? That we’re already dealing with budget problems in federal court. There’s no way that every judge could hire a tech expert. And my response to that is, yes, that’s why we need particular specialized courts, tech courts that are hearing these cases that could then go to having a full-time expert in chambers.

[Hananya Sunderraj] 28:50

When we talk about all this, I think all of us are grounding our points in the question of fairness. Do you think these specialized courts will also be susceptible to lobbying and to pandering to a special interest group? And how do you think we can ensure that A) that doesn’t really happen, and B) that even the curriculums that we’re deciding are not created with bias, and with social equity in mind?

[Michele Neitz] 29:19

Yes, this is a critique of specialized courts in general, right? I mean, if these courts are seeing the same parties or the same attorneys coming before them in case after case, isn’t it possible that they could be influenced in some way by the fact that they’re really interacting with a very narrow group of litigants, and I think that’s true of any specialized court. But I also think that this is where we need to ensure that, and I have a few ideas in mind on how we could do this, that we’re offering the chance for folks who are not represented by the same lawyers, like startups or founders who do not have large litigation budgets, to be able to go to federal court for relief when they need to. And some of that might be around having law schools and pro bono attorneys representing these founders. There’s some law school clinics that are already doing that type of work. So, my first answer would be, let’s diversify the cases that are in tech court. Let’s increase access to a federal tech court for a wide variety of people to try to minimize that narrow party problem. The second part of your question is around, how can we ensure that judicial curriculums are created without bias? And thinking about social equity, I’ve done a lot of thinking around this as I create curricula for government officials through the Center for Law, Tech and Social Good. I think this is where you can rely on academics who do not have a particular biased viewpoint. But also, the Federal Judicial Center could come in here. The FJC is the body that is already training judges, and so a lot of this education could run through the FJC. They could work with an advisory group with diverse perspectives, as I was just talking about, with the California Blockchain Working Group, to ensure that these technology trainings include issues that relate to social equity and fairness. I myself actually always include a bit about social good when I’m doing these government trainings. I also just want to point out one last point on this, that judges will still be subject to the Code of Judicial Conduct, so they and their decisions have to comply with the rules around ethics, and my hope is that that also would help in minimizing bias.

 [Hananya Sunderraj] 32:09

You did say that you had some solutions that you had thought of, about the issue of narrow litigants, or the fact that few litigants would appear case after case, and how to deal with that problem. One thing I’m thinking about in this context is how to ensure that tech courts are not centralized where the most powerful actors, like big tech companies, might have an oversized influence.

[Michele Neitz] 32:37

This is a tough one when we start talking about wealth and power, especially as wealth and power around AI is becoming centralized in just a few companies. And let me just say at the outset, I think Big Tech can have a role here. I think Big Tech should have a role here. But I think it has to be balanced with perspectives from smaller startup companies, government officials, academics, nonprofits, including consumer protection nonprofits, privacy focused nonprofits; those viewpoints all have to be included in trainings for tech court judges. Otherwise, if it becomes the case that Big Tech offers a pipeline to judicial trainings or to jobs as tech experts in federal chambers, then we risk losing judicial impartiality. The Loper Bright majority said judicial expertise is very important, and we don’t want to lose that. What we don’t want to see are judges becoming beholden to powerful constituencies, because then they would be, in many ways, subject to the same issues that are happening in Congress, and that some would argue, are the issues that are creating a Congress where we’re not able to get legislation passed in this space.

[Hananya Sunderraj] 34:09

I think that is very understandable. One question that I did have as a follow up to a lot of the other questions that we’ve been talking about is: we’re talking about this broad idea of social good, but what are these principles of social good that we’re talking about? How do we start pinning down what exactly we are working towards as a community?

[Michele Neitz] 34:32

I mean, this is a great question, because you’re asking me to define social good, which is, by the way, a deliberately broad term that we’ve included in the name of our center, because it can encompass an array of things, and I think it’s always changing, right? In my mind, there are bedrock principles around social good: equity, fairness, freedom from bias, and economic opportunity are all things that I think about when I’m thinking about social good, and that can mean different things for different technologies. When we’re talking about fairness in AI or lack of bias in AI, that might be different than when we’re having conversations around blockchain and digital assets, or when we’re looking at hiring practices in big tech companies, as opposed to decentralized companies or decentralized technologies. To me, the access to those economic opportunities has to be considered when it comes to emerging technologies. Those are the principles that I start with. Then, when I’m presented with a particular technology or a particular issue or case, that’s when I start thinking, “Okay, well, what do those bedrock principles mean in this instance?” Then we can kind of go narrower and really come up with solutions to ensure that those principles are being protected.

[Hananya Sunderraj] 36:12

I think that is very interesting, and it is something I also spend a lot of time thinking about, just in terms of, how do we balance these various viewpoints to present one idea of what social good is. Looking at your paper, it is a call to action. It is one of the first responses that we have seen since June that is beyond just reacting to Loper Bright. It answers the question that we’ve been asking, which is, what do we do now?

As we look ahead, I want to end this discussion with that same idea of social good. You’ve said previously that you’re chiefly an ethicist and are interested in power dynamics. You’ve spoken at length about the opportunities for social good arising out of blockchain and AI and a regulated response to those technologies. And now we’ve also spoken about this framework for social good and what it can look like. I wanted to ask, we’ve heard a lot of concern and doomsday-like predictions about Loper Bright but my question for you is: do you see any opportunities for social good arising out of this moment of uncertainty?

 [Michele Neitz] 37:30

I am an optimist, which is why I do the work that I do. I think emerging technologies have an incredible capacity to level the playing field around the world, but only if we develop it in socially responsible ways. Your question about, let’s try to think of a silver lining coming out of the Loper Bright case and the shift in emerging technology law to judges, I think one thing that must happen now is that Congress will have to start writing much more detailed statutes. They can no longer just delegate to agencies to figure out whether a digital asset is a commodity or a security, and then whatever those agencies come up with would enjoy judicial deference in the same way that they could before Loper Bright. I think Congress is now going to have to be extremely informed and educated about the issues surrounding emerging technology today and what those issues might be tomorrow. They’re going to have to draft legislation that really thinks about how this legislation can be workable, not just for today, but for the future developments that we can’t even see yet. This might mean that Congress is going to have to be more thoughtful around legislation, and is, frankly, going to have to pass legislation. My hope is that it lights a fire under Congress to get these bills passed, which, in the end, could create more effective legislative frameworks, which is, frankly, what all of the experts in this space have been asking for for years now, and that could actually end up preventing litigation. So that’s my optimistic viewpoint of how Loper Bright could impact emerging tech regulation. But we’ll see. We’ll see what happens.

[Hananya Sunderraj] 39:32

One other question that I just had was, in terms of Congress planning ahead for the future, do you think you have some kind of public policy framework or some kind of principles that should guide Congress when they’re making these decisions towards future emerging tech and making something applicable for a longer period of time?

[Michele Neitz] 39:55

Yes, would you believe I do actually have ideas for Congress! I think in addition to making flexible legislation, there are three things that I want to see coming out of Congress. One of them is definitions. I talk a bit in this paper, as well as in previous articles that I’ve published, around the need for federal definitions of these technologies that will enable states who, frankly, have gone off on their own in a lot of cases, including California and New York and Wyoming and other states, that would give us some sort of a framework to start from. The second thing that I think is missing in current drafts of legislative bills is education funding for education, for K through 12 schools, for community colleges. I think that we need to have a workforce that understands much more about emerging technology than just how to use ChatGPT to help you with your homework. I would like to see deeper levels of education getting funded through Congress so that we can try and again, it comes back to access to economic opportunity, so that we can open doors in this space for young people who are coming up in this world of innovation and emerging tech. The last thing that I would say to Congress is: consider ethics. California was the first state to consider ethical implications of blockchain in our working group report  that was issued on July 1 of 2020, and that report is still available, folks can take a look at it. But I do think that without the consideration of those bedrock social good principles that we risk writing statutes that would apply only for today and only to help a select number of people. I would really like to see Congress more focused on ways to level the playing field across the country in this space. So, if Congress calls me, that’s what I will tell them.

 [Hananya Sunderraj] 42:10

I agree that Congress should call you.

[Michele Neitz] 42:11

Haha, thank you.

[Hananya Sunderraj] 42:12

It’s been an absolute pleasure talking to you, Professor Neitz. I think you’ve brought up so many different points that all of us, especially as law students, have been thinking about since Loper Bright came in. Thank you so much for having this conversation with us.

[Michele Neitz] 42:30

Thanks very much for having me. It was such a pleasure.

[Meg O’Neill] 42:36

You have been listening to the Berkeley Technology Law Journal Podcast. This episode was created by Vasanthi Hariharan, Jeyhun Khalilov, Lucy Huang and Hananya Sunderraj. The BTLJ podcast is brought to you by the podcast co-editors, Juliette Draper and Meg O’Neill, and Junior Podcast Editors Braxdon Cannon, Lucy Huang, Paul Wood and Joy Fu. Our executive producer is BTLJ’s Senior Online Content Editor, Linda Chang. BTLJ’s editors in chief are Edlene Miguel and Bani Sapra. If you enjoyed our podcasts, please support us by subscribing and rating us on Apple Podcasts, Spotify, or wherever you listen to your podcasts. Write to us at btljpodcast@gmail.com with questions or suggestions of who we should interview next. This interview was reported on October 16, 2024, the information presented here does not constitute legal advice. This podcast is intended for academic and entertainment purposes only.