6.1 Where We Stand
This final chapter offers a brief recap of where our inquiry has led us thus far and provides an outlook for what may lie ahead. I propose that we are witnessing the emergence of an entirely new class of norms, mechanisms, and institutions aimed at constraining the immense power wielded by privately incorporated governance structures. Content moderation, and particularly experiments such as the Oversight Board or the EU’s out-of-court dispute settlement bodies (ODSs), provide a vivid – if ambivalent – example of the fascinating and innovative efforts to address the core question posed at the outset of this book: how do we control corporate power structures when the traditional locus of authority, the state, is gradually fading? Or, to put it more starkly, how can we constrain powerful corporations that govern critical sectors of the future – platforms, artificial intelligence, space travel, satellites, biotech, quantum computing, and beyond – when they outpace and outscale the regulatory capacity of public institutions?
Over the last 300 or so pages we analyzed these and other questions in the realm of content moderation, particularly how private and regulatory actors alike flocked to emulating a canonized classic of public law – individual rights adjudication – to provide accountability to the fledgling, privately incorporated power structures of social media companies. Such emulative moves are a common pattern in politics as well as managerial practice. Therefore, it seems likely that regulators, academics, and publics will, again and again, draw on historical approaches that have proven effective in the past to solve future problems of organizational and especially corporate power. A crucial role model for controlling private organizational power will remain, for the time being, public law. By public law, I refer mostly to constitutional, civil rights, and administrative law. In contrast, by private law, I refer to the body of law governing relationships between private parties, such as contracts and company law. The ideas of public law – self-governance, participation, due process, reason-giving, third-party review – hold a lot of social sway. But like for content moderation, we will, inevitably, face the necessity of adapting those role model solutions to the private law context in which these new power structures operate. These emerging frameworks could well be described as the beginning of a set of new accountability norms – an attempt to rein in corporate power in ways that acknowledge its vast reach and innovative force while seeking to instill checks, balances, and accountability within these unprecedented governance systems.
But before we get to these future developments, we must briefly recapitulate and critically complement the core arguments this book puts forward. The introductory chapter already anticipated these arguments. However, to refresh our memory and frame the preceding chapters, I take the liberty to briefly recapitulate them here once again. First of all, I argue that it makes sense to think about new institutional and normative arrangements in digital governance, and, for the fact of the matter, arguably the governance of many future sectors. In other words, we witness governance by emulation. Emulation means the reproduction of commonly known role models from prior contexts in new contexts.Footnote 1 Here it means the emulation of individual rights adjudication vis-à-vis a dominant power structure, in this case social media companies’ content moderation machineries. Remarkably, emulating public law ideas is by no means a liberal shtick. Various kinds of conservative or libertarian critiques of regulatory programs or platform (self-)governance invoke arguments about viewpoint discrimination, majoritarianism, free speech, and accountability – all public law concepts in their own right. But that more recent episode, arguably the backlash against the phenomena analyzed in the empirical chapters, has to be studied in future work. This book focused on the “liberal” era of platform governance. The case studies analyzed how users might seek to enforce their individual rights vis-à-vis platforms through new adjudicators like the Oversight Board or ODSs. I called these novel adjudicators Emulated Guardians, the latter term referencing the classic question of public law: Who guards the guardians? Emulated Guardians’ reproduction of individual rights adjudication for this context is pretty intuitive. After all, who would be against trying to empower users to adjudicate their rights and hold platforms accountable. However, one must pay attention to the contextual factors that enabled the role model in its original context. The two Emulated Guardians that I studied here – the ODSs certified according to Article 21 Digital Services Act (DSA) and Meta’s Oversight Board – struggle with lacking the formal powers and institutional postures of their role model.Footnote 2 Also, crucially, emulations regularly operate in a context that is markedly different than the original one, here, for example, the new context are profit-driven private governance regimes whereas the role model’s context were continually grown rule of law systems. However, second, contexts may change. The characteristic strength of emulative arrangements is their performative potential.Footnote 3 Emulated Guardians can be powerful not because they are courts but because they remind us of courts. Especially the Oversight Board performatively plays with the perception of adjudicative power and reasoning, international human rights law and thereby taps into the still much venerated imaginary of public law-based accountability of organized power. Yet third, every phenomenon carries its own dialectics. The lack of formal powers and inevitable proclivity to public perception may give rise to merely superficial, or as I call it borrowing from organization theory, ceremonial compliance.Footnote 4 Such ceremonial arrangements may occur whenever an allegedly controlled power structure adopts external feedback but effectuates only outside-facing changes while keeping internal, potentially harmful practices intact. These three elements – emulation, performativity, and ceremony – are inseparably intertwined. Therefore, one should not hope or even wish for governance arrangements that entirely overcome one of them. Emulation, performativity and, to a degree, ceremony can be very fruitful means of organizational growth and the construction of authority. Therefore, we should invest time and attention into continually monitoring and improving the governance arrangements we encounter. Fourth, concretely, regarding the two studied Emulated Guardians – the ODSs and Meta’s Oversight Board – I argue that both are innovative fusions of public and private law models.Footnote 5 They have, upon closer inspection, vastly different functional logics, and will end up focusing on different things. The authority of both types of bodies may be ambivalent and even formally weak. For the performativity-argument made above, they might yet expand their authority, nonetheless. Also, for the EU’s ODSs, one might even say that at least some of them may develop into mere mediating bodies, which can be a good way to filter out many disputes before they reach the lengthy and costly stage of formal litigation. As the first ODSs became operational through 2024, we also observed another innovative aspect that was not foreseen by the EU. That is ODSs’ experimentation with large language models as tools to handle large amounts of cases and construe automated justice architectures; a development that, if successful, might hold fundamental lessons for any form of individualized decision-making in normative contexts ranging from classic bureaucratic tasks to the judiciary. At the time of writing, it is too early to tell how such experiments will turn out. Then, fifth, the book seeks to caution against some claims by regulators, especially the European Union, that platforms are indeed applying the regulators’ rules instead of their own. As Chapters 2 and 3 showed, we observe rather the opposite. The European Union largely ceded rulemaking and rule-enforcement capacity to digital corporations, which it then adorns with the public legitimizing label of being tightly regulated by Brussels.Footnote 6 How this plays out once the Commission ramped up implementation remains to be seen. Sixth, I believe, and have outlined elsewhere, that for concrete improvements of content moderation regimes and the implementation (and drafting) or regulation thereof, administrative law holds much to offer.Footnote 7 Questions of normative hierarchy and deference, scale and unity in complex systems are well studied and, I would argue, reasonably well answered in administrative law. Content moderation is a bureaucratic endeavor, even if it is highly technicized (as most bureaucracies are). Bureaucratic in this sense refers to large, partially hierarchical, partially project-based organizations that deal with high volumes of recurring tasks. Administrative law offers mechanisms and norms to make sense of this and, eventually, improve such bureaucracies whenever they act on the public. And then, lastly, seventh, I believe that all prior points lead to a simple but very exciting prospect: we are witnessing the emergence of new norms of accountability and control for private power structures that exercise global governance.
This book studied said accountability structures for content moderation. But these are, in my opinion, only one of many examples where similar centralized but private, for-profit, corporate-driven global governance arrangements emerge. Think of, for example, artificial intelligence, autonomous vehicles, quantum computing, commercial space travel, satellite infrastructure, health governance, biotechnology, human “enhancement,” carbon capture, private surveillance technologies, and so much more. Not all these sectors necessarily will flourish. But some most likely will. And in all these sectors it will to a large extent be private actors making and enforcing the decisive governance decisions. They simply outpace and outscale public power structures. This, however, evinces the necessity to erect new perspectives on and structures of the legitimate exercise of power. Emulated Guardians are a paradigmatic example for this new sphere of norms one could call new accountability norms. These new accountability norms will be the main topic of the remaining pages of this book.
However, before we go there, let me briefly address some of the complementary, more critical takeaways complementing six of the seven core arguments of this book. I make two more critical points. First, that we should not put too much hope in individual rights and adjudicators, second that rulemaking in content moderation requires more ex ante input from the publics bound by the rules. These observations then also pave the way to our outlook at the new accountability norms, which I discuss in the second part of this chapter.
6.1.1 The Limits of Rights and Courts
First, one might question whether the European Union and Meta selected the appropriate model by emulating individual rights adjudication.Footnote 8 For lawyers, using an adjudicator to operationalize individual rights and hold digital corporations accountable seems self-evident. However, as many scholars – both empiricists and theorists – have argued, the real-world effectiveness of this rights-focused, court-centered approach is far from certain.Footnote 9 Only idealistic, and perhaps somewhat self-absorbed, lawyers would believe that all it requires to domesticize a recalcitrant bureaucratic behemoth is a courageous, Herculean court. This was arguably never true of traditional legal systems, and it is certainly not the case today. There is little reason to believe that Emulated Guardians like ODSs or the Oversight Board, inherently imperfect adjudicators with limited authority, could succeed where their predecessors failed. Dismantling entrenched organizational structures that follow potentially harmful incentives is very, very complicated and takes a lot of external and internal pressure.
Consider, for the sake of argument, one of the biggest presumed victories of rights-based-approaches and courts: the desegregation of public schools in the United States. Many lawyers might intuitively believe that the Supreme Court resolved this issue with Brown v Board of Education in 1954. That decision operationalized the individual rights of several Black students to equal treatment, making a normative statement about the governance of public schools across the United States, where many institutions denied equal access to Black students. However, school desegregation did not occur immediately following the decision.Footnote 10 The widely recognized images of the National Guard escorting Black students into a school only represent a specific moment in time, and beyond that event, segregationist practices remain(ed) deeply entrenched. As Lani Guinier observed:
On its fiftieth anniversary, Brown v. Board of Education no longer enjoys the unbridled admiration it once earned from academic commentators. … The fact is that fifty years later, many of the social, political, and economic problems that the legally trained social engineers thought the Court had addressed through Brown are still deeply embedded in our society.Footnote 11
Evidently, this is not to say that governance practices in content moderation are comparable to past and prevalent racial injustices in US bureaucracy. But the point is that structural change seldom transpires only because of courts, even if it is one of the most prominent decisions of what was at the time perceived the world’s most powerful court dealing with an injustice so obvious, few would openly dare to defend it.Footnote 12
Therefore, if even in such a constellation – powerful court, obvious injustice – individual rights adjudication reaches its limits, why are many putting so much hope into an emulated, feeble version of individual rights adjudication to solve problems that appear normatively much more nuanced and whose remedy is much less straightforward?
Arguably, the reason Meta and the EU chose to emulate adjudicators rather than, say, parliaments lies in the deep-seated sociocultural veneration of the former. There is something inherently appealing about the idea of empowering individuals through rights-based adjudication – even if it does not always deliver the structural transformation one might hope for. Much ink has already been spilled on the complexities of courts, individualism, and rights-based approaches, often with far greater theoretical and historical nuance than I can provide here.Footnote 13 Therefore, I restrict myself to flagging this issue. These kinds of structural criticism of the Oversight Board, the DSA, and content moderation are important. However, many of these critiques merely reflect well-known general critiques of over-relying on rights and court-based approaches.
There is, however, a more cynical way to look at things. Perhaps individual rights adjudication was not chosen despite its shortcomings in driving real change, but precisely because of them.Footnote 14 After all, the effectiveness of such adjudication depends heavily on the rule of law, which in turn relies on the social norms that sustain it. Courts may boast neither purse nor sword, but individual rights and independent review are so deeply embedded in our cultural fabric that setting up these systems offers a win-win opportunity for both the European Union and Meta – even if the structural shifts ushered in by these Emulated Guardians unfold at a glacial pace.
The real beauty, from a strategic standpoint, lies in the shift of responsibility. Once these bodies are in place – and the Oversight Board’s immense caseload suggests it already is well on its way – the question of who bears the burden of protecting online rights begins to drift. No longer will Meta or the European Union be the primary targets of scrutiny. Instead, public attention and potential criticism might now zero in on the guardians themselves. And that, in the end, suits both Meta and the EU quite nicely.
6.1.2 Participation
Building on the previous observation, the current discourse surrounding the legitimacy of content moderation remains overly focused on ex post review – hence the fixation on emulating individual rights adjudication – while largely neglecting ex ante improvements. The quality of the rules applied by platforms remains deeply problematic: they are unsystematic, incoherent, and one can only speculate about the quality of algorithmic enforcement of rules that, even for human readers, allow for a wide range of interpretations. As one interviewed former consultant to Facebook put it, “[t]he process for making content rules is basically a room full of US lawyers sits down and makes the rules after the latest crisis.”Footnote 15 And, as the interviewee continued, “[w]hat the fuck happens when you put a bunch of US lawyers in charge? Well, they started doing things that they’re familiar with,” which was in this case to come up with more rules and, eventually, an external adjudicator.Footnote 16 Admittedly, creating globally scalable speech rules is a Sisyphean task. However, from the perspective of the affected publics and a liberal instinct for self-governance, it is striking how little influence users have in shaping the very rules they are expected to follow.
Calls for more participatory elements in the rulemaking processes of social media companies are not new, and neither are the widely held objections to increased user participation in platform rulemaking.Footnote 17 There are three primary objections.
First, it is argued that users do not constitute a demos – they would lack the shared identity or cohesion that forms an actual polity. This argument is, in my mind, a tat esoteric. Claims to self-governance arise from shared affectedness and agency, not from an otherwise constructed ideological, ethnic, or historical bond. As the eminent US constitutional theorist – and Oversight Board trustee – Robert Post put it: “Democratic forms of social ordering have a particular and bounded sphere of appropriate application, which is defined by … those aspects of society deemed necessary for the success of collective processes of self-determination.”Footnote 18
Evidently, a claim to self-governance arises vis-à-vis a state in a different form and quality than vis-à-vis a social media platform. The disciplinary powers of the former are (as of now) significantly more intimidating than deplatforming or downranking of social media posts.Footnote 19 However, if digital corporations in general, and social media platforms in particular, were not in some way exceptional – and this exception lies in their nearly absolute power over crucial aspects of our lives – this entire conversation would not be happening. Digital corporations possess, program, and structure the very means of our collective processes of self-determination, are indispensable mediators of societal decision-making, in the case of communicative services, and broader societal and economic development, in the case of other industries. Whenever an organization regulates human behavior at this scale, the liberal instinct should not be to condone that exercise of power even if it seems unjust merely because the power structure is incorporated as a private company. Instead, we ought to ask why there is so little say in how these actors govern our online activities. None of this means that participation must be equivalent to what one might consider a democratic ideal. Arguably, that would be counterproductive, as these actors remain corporations, not states or other public entities. Yet, the idea that being ruled necessitates some voice in how one is ruled seems intuitive.
Second, there is the claim that users simply do not care. This is indeed a real problem, amusingly enough one familiar from public governance as well.Footnote 20 And admittedly, Meta’s experiment with direct voting on some of its terms of service attracted participation from less than one percent of users.Footnote 21 However, once we accept that content moderation and comparable power relations in private governance may give rise to valid claims for elements of self-governance, the question becomes how, rather than if. As the Meta example shows, general voting might not be a good idea, and for several other reasons, well explored in democratic theory, general voting might fail. However, various other mechanisms and procedures are necessary and exist to help infuse the interests of affected publics into rulemaking processes.Footnote 22 There are numerous civil society groups and activists who could professionalize this participation. None of these processes would be perfect, and all would require continuous review and improvement. However, engaging people before imposing rules on their expression, rather than only revising the most problematic rules after sufficient complaints, would overcome the Silicon Valley-inspired “release early, release often” mentality and reflect a more mature understanding of the governance task these companies have assumed. In that sense, and as I argued in greater detail in Chapters 2 and 3, the DSA disappoints.Footnote 23 The claims of the EU that “the rules of the game” were now made by Europeans rather than platforms are, unfortunately, largely empty political rhetoric. In fact, it seems plausible that the DSA stabilizes rather than curtails platform power in Europe.
The third and perhaps most problematic objection is the frequently invoked claim that platforms, being private entities, are inherently insulated from any participatory elements in how they regulate user behavior. This argument, however, is unconvincing for both practical and deeper theoretical reasons. On a practical level, it seems contradictory to deny participation in rulemaking while simultaneously framing terms of service and other implementation rules as contractual in nature.Footnote 24 If these rules are truly contractual, they ought to be negotiated, not unilaterally imposed.Footnote 25 The very essence of a contract is the negotiation between two parties to reach a mutually agreeable arrangement.Footnote 26 Of course, this ideal does not fully apply to mass contracts, but to dismiss entirely the idea of user participation in platform rulemaking on the grounds that it would violate platforms’ “freedom of contract,” as some Commission agents have argued in interviews conducted for this book, strikes me as unpersuasive.Footnote 27
We see many types of contracts where participatory elements are well-established practices, from labor law to shareholder rights in corporate law. Some forms of participation may be mediated through property – such as shareholder voting rights – but others arise purely from the recognition that private entities possess far more power than the individuals whose contributions are crucial to the entities’ economic success. This is, after all the foundational principle behind collective bargaining, a practice with a long history that acknowledges the imbalance of power and seeks to redress it through participatory means.
Further, the argument that private incorporation alone grants platforms the right to exclude users from rulemaking doesn’t hold up on a deeper theoretical level. To grasp why, we need to briefly revisit the historical purpose of distinguishing between public and private power. This will also set the stage for the discussion in the next section on new accountability norms.
Historically, the public-private divide was designed to safeguard individual freedom from the biggest threat to liberty at the time: the state.Footnote 28 Private individuals, privacy, private property, and private law – all these institutions emerged to empower individuals vis-à-vis a power structure that was not only dominant, but utterly all-encompassing. Rulemaking authority gradually shifted away from Church and Crown to guilds, cities, and eventually republics. Conceptualizing those organized power structures, especially the State, as “public” tied it to certain ideals of publicness and, in turn, carved out spheres of individual and collective freedom, the “private.”Footnote 29 Seen from an abstract vantage point, however, erecting public and private as opposing categories typically sought to defend individual freedoms and confine powers.Footnote 30 The purpose of this ideational dichotomy – which in practice is much less pronounced than in theory anyway, for anything private existing in a public context and anything public being constituted by and for private people – was never to blindly distinguish based on form, but eagerly protect individual liberty from emergent power structures.
A bit later, in the late-nineteenth century, the private business corporation emerged as a distinct legal entity.Footnote 31 It only gradually disentangled itself from the state, most notably in colonial settings where private incorporation had a “convenient” side effect for its masters: it shielded corporate executives who commanded armies and effectively governed entire continents from demands for transparency and adherence to public ideals. The downstream consequences of the private form, therefore, are profoundly ambivalent: necessary, yet persistently susceptible to abuse.
Today, a significant threat to liberty comes not from what we label “public power” but from privately incorporated entities like social media companies. Today it is not only one power structure – the local sovereign – but a quite dense and confusing web of overlapping power structures, some of which remain public, like States or the European Union, some, however, are private corporations. The power of some of these corporations, at least within their specific sectors, is immense. Arguing that such corporations – armed with more money, resources, data, and infrastructure than many governments – require essentially unrestricted bargaining power turns the traditional understanding of private law on its head. If even a fraction of the claims about the transformative nature of the digital age is true, it is time to reassess how justified the privileges granted to private entities truly are. The idea that such powerful actors should have unrestricted freedom of contract and property simply because they are incorporated in private form appears, at least to me, an utter misunderstanding of what the distinguishing the private from the public is for.
Here, the dialectics presented in the case studies are striking. On the one hand, companies like Meta assert their right – and undoubtedly possess the means – to intervene in the speech of elected officials, including the President of the United States. From a traditional perspective, this is deeply concerning. On the other hand, why should we expect platforms to be complicit in the dissemination of government-sanctioned hate speech? What if a company, rather than a state actor, defends human rights by preventing a government from inciting human rights violations? Do such actions represent legitimate private checks on public power, as discussed in Chapter 5? Conversely, how can we distinguish between “legitimate” requests of state power and the nefarious co-optation of private governance by authoritarian regimes? For instance, the DSA includes provisions designed to “waterproof” its notice-and-takedown mechanism against potentially malicious demands from increasingly authoritarian Member States.Footnote 32 What procedures should companies like Meta follow when deciding how to respond to countries that adopt platform regulations modeled after the DSA but geared toward authoritarian ends? How can we even make sure that the DSA is not misused for authoritarian purposes in some Member States or even regional authorities, for example against migrants, the LGBTQI community, or simply opposition figures? Should digital corporations comply with potentially authoritarian interpretations (or emulations) of the DSA simply because it claims to advance national sovereignty? Unfortunately, there are no easy answers to these complex questions.
Also, elements of self-governance and participation need to be carefully adapted to fit their new environment. Much of the relationship between individuals and platforms remains private, transactional, and shaped by contractual agreements. And rightly so. It is essential to recognize that ideas often seen as belonging to the public sphere – such as participation and self-governance – also appear in private contexts, though under different names.Footnote 33 However, this is not an argument for turning digital corporations into state-like entities, as if that would solve all problems. Such a transformation would be neither politically viable, nor practical, nor desirable. The profit motive driving platforms is vital, as it promotes innovation and efficacy. Moreover, states themselves are not without flaws; many struggle with inefficiencies, and some fail to uphold even basic democratic principles.
As discussed in Chapters 4 and 5, serious dilemmas arise when powerful corporations act as private checks on public power. In certain cases – such as when governments fuel hate speech during ethnic unrest – corporate intervention can prevent real harm.Footnote 34 Yet, such actions also undermine key principles of international law and further erode the already fragile concept of state sovereignty. This creates a complex tension: preventing harm on the one hand, while weakening legal norms and sovereignty on the other.
6.2 New Accountability Norms
Reflecting on these ideas, we turn now to consider the future. It is reasonable to assume that in the coming years – indeed, even now – corporate-driven, private governance arrangements will continue to wield vast, largely unchecked power over key sectors of human activity, particularly in the economic realm. Public power still plays a role in all of these future sectors. The US government, for instance, funds a significant portion of the research and helps creating demand for new private, profit-driven space corporations.Footnote 35 International organizations hold fact-finding commissions and are scrambling to establish normative frameworks for artificial intelligence, while sectors such as quantum computing, biotechnology, human enhancement, and carbon capture thrive on state-funded foundational research.Footnote 36 Yet, despite these efforts, the sheer scale, speed, and infrastructural control of many of these industries mean they are predominantly governed by the techno-normative frameworks devised by the small number of corporations that invent and control the relevant technologies and services.Footnote 37
Take, for example, the ongoing discussions around “global AI governance.” These debates often focus on abstract normative goals for how this still poorly understood technology should or should not be used. But merely generating rules, reports, and guidelines is far from effective governance. The real governance power – as this book has shown – rests with internal factions within these companies.Footnote 38 These are engineers and product developers on one side, compliance, legal, and public relations teams on the other. These actors truly determine how a given technology or service is employed. And indeed, they may consider external norms or regulations. But given the global reach and scale of their operations it appears naïve to hope for the enforcement of public law through traditional public mechanisms.
In many sectors, public power seems to have hit a ceiling in terms of shaping and enforcing its normative demands on these economically powerful, globally active corporations. This was laid out in detail in Chapter 3. The European Union, for instance, is often celebrated as a strict regulator. However, even in one of its flagship political projects of recent years, the DSA, the EU appears to have consolidated, rather than diminished, platform power.Footnote 39 Put simply, it seems the regulatory process is no longer capable of generating the kind of outcomes that could meaningfully alter the governance practices of these corporations, at least not to the degree publicly promised.
This leads to an inevitable conclusion: governance will, and arguably must, be exercised also by forces other than public power. And this is not about mundane governance; it is about the control, distribution, and creation of fundamental aspects of social, economic, and public life. For staunch defenders of traditional public law, this may sound heretical. It is worth noting that my own perspective on this issue has shifted – albeit gradually – over the course of writing this book. The book seeks to portray a somewhat transient perspective, combining European and American takes to a hopefully interesting whole. However, based on the power dynamics we have explored, insisting solely on the supremacy of the state in governing these technologies and organizations feels, as Martti Koskenniemi put it, “trite.”Footnote 40 The world is moving on.
If private ordering is set to become even more prevalent, several questions appear increasingly pressing. How should we think about the legitimacy of these power structures? Should we consider their legitimacy at all? Who should have a say in shaping, implementing, and overseeing these structures? How can we reconcile the legally protected (and often essential) profit motive – after all, we need innovation and efficiency – with broader public concerns? How can we formulate and operationalize normative demands if power is indeed exercised not through communication or human action but via computing and infrastructure? How should the burdens be shared, profits allocated, and externalities mitigated? What should be the fundamental principles – the “grammar” – governing the norms that regulate these corporations? This grammar, spanning from self-imposed standards and technical frameworks to traditional laws, becomes all the more critical in a landscape of regulatory fragmentation, revolving doors between public and private sectors, and the codification of assumptions that tend to privilege corporate over public interests. How can such norms even be enforced when private corporations are far more centralized and resilient than many entities claiming to act in the public interest?
Attempting to answer these questions could easily fill another book. However, much of it seems to boil down to incorporating better governance and publicness within the power structures as they are. Here, emulation will be an important tool – for all its virtues and vices. Two things will be essential: First, we must repurpose “private” law in global governance, especially corporate and contract law.Footnote 41 At a practical level, current private law frameworks struggle to accommodate the public-oriented demands that arise when certain private actors accumulate significant governance power. Also, on a theoretical level, we ought to focus more on the power relationships at play than legal privileges latched to the private form. Yet, classifying something as private has profound legal consequences, many of which may be unjustified given the current power dynamics. Second, it is unclear what role traditional law or other forms of explicated normative material might play in future governance scenarios. In such scenarios, code and infrastructure will be crucial determinants, effectuating their very own ways of closure, discipline, and steering. Lastly, from a normative perspective, any new governance arrangement must be responsive to the affected publics, not just the corporations involved. The mechanisms for ensuring this responsiveness will vary and evolve incrementally, but the trajectory should be one of public accountability rather than unchecked centralization. I firmly believe that the principles of public law will continue to play a pivotal role in advancing these ideals, even if their influence increasingly extends beyond the realm of traditional public law regulation. Public law’s adaptability as both a method and a mindset ensures its relevance in shaping the norms and institutions required to navigate the complexities of modern governance. Its ideals of accountability, fairness, and public interest remain indispensable, even as the mechanisms for achieving them evolve. However, this optimistic note is deliberately reserved for the epilogue. By concluding on this forward-looking note, I aim to leave readers with a sense of the transformative potential of public law ideals – an antidote to the fragmentation and uncertainty that so often dominate the landscape.
That is because, on a practical level, it will be extraordinarily challenging to build accountability structures and public-minded governance institutions solely through the private law mechanisms discussed here.Footnote 42 This is not to simplistically juxtapose an idealized public and an inherently nefarious private. As said repeatedly throughout the book, private ordering is neither good nor bad. The profit motive is an important driver of innovation and efficiency and, vice versa, the state far off being an always legitimate, let alone effective exercise in organized power. Especially at a global scale, there are few simple answers or absolute truths as to which things should be governed in what way. Likewise, the uncritical idealization of public power that underlies other criticism is itself rather ahistorical. Wherever power becomes comprehensive, it ought to be exercised in alignment with ideals of publicness and self-governance. We simply have more historical experience—and conceptual vocabulary—for thinking about these demands in relation to the state. But they are by no means exclusive to it.
This book showed how private, for-profit actors can be a very effective and indeed important check on state actors. Think of the Oversight Board’s attempts to nudge Meta to restrain government hate speech on its services. Consider Meta’s ability to do just that, quite literally by pulling the plug. Or think of AI companies’ control over foundation models: adjusting such a model even slightly, making it more “aggressive,”, more “lenient,” or simply less accurate can have immense sociocultural, political, and economic repercussions. The scale of this influence is astonishing, and, I would argue, the way it is governed should be a matter of serious concern. Private law structures characterized by fiduciary duties, trusts, and contracts might very well be an important part of pragmatically repurposing certain private law institutions for publicly minded governance. Such incremental repurposing of contractual vehicles is also neither entirely new nor particularly understudied on an abstract level as numerous conceptual works on transnational law, lex mercatoria, private ordering, and entangled legalities indicate.Footnote 43
In this sense, these emerging governance arrangements hold both promise and peril. As the case studies show, technological advancements can be harnessed for the common good, but they can just as easily be used for harmful purposes. At the global level, it remains unclear who will differentiate between these two paths, according to what rules, and through which processes. As we move toward addressing these questions of normative and institutional design, we are likely to witness more instances of emulation – complete with both its opportunities and challenges. But there is reason for optimism. The liberal State – which today appears to be under pressure in many parts of the world – did also not emerge overnight. It took decades of protests, reforms, bills, and public pressure to entrench the separation of powers, due process, and democracy in public power structures. No categorical reason exists why similar – but not identical – improvements could not be made for future governance constellations.
6.2.1 Repurposing Private Law in Global Governance
Let us now dig briefly into each of these points. The first argument is that we – meaning academics, practitioners, and lawmakers – need to rethink and eventually repurpose private law in constellations of global governance.Footnote 44 This is, in essence, an obvious thing to do but it reverberates through our whole conception of the legal system and shakes deep-rooted priors of the role of law, the state, and corporate power.
Unlike the 1990s and 2000s, when private ordering was hailed by some as the inevitable next step in globalization under the Pax Americana, contemporary global governance increasingly unfolds through code, technology, and infrastructural control.Footnote 45 At the heart of this shift lie corporations – at the time of this writing predominantly American, with a few Chinese contenders – that have centralized the governance of many industries with planetary significance. Meanwhile, the billionaire owners of these corporations, along with Silicon Valley’s venture capital vanguard firms, have not only amassed extraordinary influence but have also embedded themselves within the US government – a trend dramatically accelerated by Donald Trump’s re-election in 2024.Footnote 46 This concentration of wealth, infrastructural control, technological dominance, and legal immunity benefits a small cadre of men – especially Elon Musk, Jeff Bezos, Marc Andreessen, Mark Zuckerberg Larry Page, Larry Ellison, Sergey Brin, and Jensen Huang. As Julie Cohen aptly described, these figures are modern-day oligarchs, wielding power that resembles feudal hierarchies far more than democratic or even traditional market-based systems.Footnote 47 In other words, private power structures are becoming ever more dominant, fueled by the ideologies of “tech-solutionism” and underpinned by the prevailing paradigm of American political economy. To an extent, all these actors benefit profoundly from the globally diffused fundamental grammar of private law that champions property rights and contractual freedom rather than communitarian let alone planetary interests, an observation already well established for the US context.Footnote 48 Therefore, if the goal is improved governance of such future industries, this book holds several inductive lessons from the regulatory and self-regulatory practices in content moderation in Europe and the United States as to why and how repurposing of the “private” in global governance and particularly private law could take place.
To begin, we must reconceptualize corporate domination not merely as commerce or capitalism, but as a distinct form of governance. To fully comprehend corporate power as a comprehensive form of governance, a historical lens is instructive. By looking back, we can trace how corporations have transitioned from purely economic entities to actors wielding significant influence over societal norms, political structures, and even legal systems.Footnote 49 It is, for example, a mistake to think that particularly questionable extractive practices are illegal – many are not. From a substantive normative perspective, the legal system accommodates such extractive practices through protections of property and contract rather than elevating structurally weaker parties through substantive guarantees.Footnote 50 This historical perspective underscores that the power of these entities is not a natural evolution of capitalism but a deliberate engineering of governance structures that prioritize private interests over public accountability. Historically, however, even more extreme government by corporations is not at all unprecedented. Europeans, for example, subjected hundreds of millions of colonized people in India to the privatized “government” of the East India Company. The period between 1773 and 1858 is commonly referred to as one of “company rule” in India. The East India Company, a privately owned corporation, managed from London its own administration, legislation, judicial system, and military forces on the Indian subcontinent.Footnote 51 This story is not exclusive to India. Similar sufferings were brought, for example, upon the people of the West Indies by the Danes, upon Borneo by the Dutch, and upon Mozambique by the Portuguese.Footnote 52 In other words, substantial parts of sovereignty’s nastiest aberration, colonialism, were privately governed.Footnote 53 These corporations, through their charters, were deeply entwined with the state while simultaneously cultivating a distinct autonomy. Remarkably, at one point, members of the East India Company’s Board perceived the organization as equal to – or perhaps entirely independent of – the Crown, a view supported by archival evidence suggesting claims to corporate sovereignty.Footnote 54 To be clear, this is not to conflate contemporary digital corporations with historical colonial enterprises. However, reflecting on the historicity and discursive construction of our conceptual frameworks enables us to overcome the widespread difficulty of imagining entities like Meta, Google, SpaceX, Starlink, or TikTok beyond the narrow confines of business law. In that sense, such a historically informed perspective also helps complementing existing experimentalist approaches.Footnote 55
From a historical vantage point, the contemporary reluctance in the United States to view centralized and immensely powerful digital corporations as anything more than mere business enterprises is perplexing. In the eighteenth century, Americans openly debated whether Congress should have the authority – mirroring British colonial practices – to charter corporations for both colonial and domestic purposes. At the Constitutional Convention in 1787, James Madison proposed empowering Congress to “grant charters of incorporation where the interest of the US might require & the legislative provisions of individual States may be incompetent.”Footnote 56 Yet, this motion failed, driven by fears of monopolistic dominance – particularly in banking – and state overreach. In essence, the notion of outsourcing governmental functions to chartered corporations was deliberated and dismissed in the United States over two centuries ago, precisely due to concerns about monopolization and concentrated power. Ironically, these very concerns, if raised today regarding digital giants, are often dismissed as radical, interventionist fantasies. In short, the private corporate form has always served – and continues to serve – as a convenient shield against legitimate and pressing demands for better governance. This tactic is not a historical relic but a persistent strategy, cleverly exploited to deflect responsibility and stave off accountability.
Once we accept that these corporations function as global governors, our focus must shift to the ends they pursue and the means through which they exercise governance. What are their objectives, and what tools do they deploy to achieve them? As organizational theory has taught us, these ends are often conflicting, and the means can be overlapping. For instance, as this book demonstrates, reforms that appear ineffective in addressing structural governance flaws may serve effectively as public relations rituals, deflecting responsibility while shielding unchanged practices from external scrutiny.
The theoretical leap, then, is not simply to advocate for more public regulation of private actors – a model with evident limitations – but to reinterpret enduring ideals such as self-governance, accountability, and privacy for the new realities of private, corporate, for-profit power structures. Consider the example of shifting privacy expectations towards Facebook in the aftermath of the Cambridge Analytica scandal. Chapter 2 (Section 2.1.2 to be precise) revealed disheartening findings: while users still valued privacy, they resigned themselves to a lack of enforcement power, tacitly accepting privacy’s erosion. Yet, this does not preclude a more optimistic, normative stance in other matters. Public law ideals like privacy, as hard-won achievements, deserve reinterpretation in light of private power structures. Julie Cohen offers a compelling argument here, suggesting that privacy should no longer be viewed merely as the “protection of the liberal self” as framed during the Enlightenment.Footnote 57 Instead, she contends, “[p]rivacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable.”Footnote 58 Much in the same vein, Lisa Austin’s genealogy of privacy unveiled that its contemporary linkage to property and trespassing, which is the basis for the idea that extractive practices are basically merely a matter of consent, cuts out a second, but arguable more important public law dimension of privacy, namely that of the rule of law and protections against search and seizure. In Austin’s telling,
[a] broad rule-of-law approach [of privacy] would focus on the surveilling party and questions of power, its possibility of abuse, and legal safeguards. It would place questions of transparency and accountability at the center of the debate rather than as add-ons to the reasonable expectation of privacy analysis.Footnote 59
Similar reasoning can be extended to other principles of good governance and constellations of domination. These ideals are not relics of a bygone era but tools to be reactivated and adapted to confront the threats posed by private power. By reimagining and operationalizing these principles, we can reinvigorate them for the challenges of today and tomorrow.
One effective way to reactivate these public law ideals – participation, due process, equality, and self-governance – is, somewhat paradoxically, through the framework of domestic private law.Footnote 60 Despite their global reach, corporate global governors remain bound by the laws of their jurisdictions of incorporation. This presents a significant opportunity: instead of (only) ascending into increasingly abstract discussions of governance, we can focus on creatively reimagining and operationalizing existing mechanisms within contract and corporate law to drive meaningful change. Privately formed, profit-driven bureaucracies already embed fragments of traditionally “public” elements within their structures, whether through reason-giving, participatory processes, or accountability mechanisms.Footnote 61 These incorporations are not coincidental but rather pragmatic adaptations to maintain legitimacy and manage complex stakeholder relationships. Contract and corporate law, with its capacity to mediate obligations and responsibilities, becomes a practical tool for embedding public law ideals into private governance practices.
For instance, the principles of participation and reason-giving can be integrated into contracts by mandating transparent decision-making processes or requiring explicit justifications for corporate actions that affect stakeholders. Similarly, contractual frameworks can enforce accountability by setting clear benchmarks for performance and remedies for noncompliance. Equality and self-governance, too, can find footholds in private law by ensuring equitable terms for all parties involved and enabling stakeholders to have a more substantial say in the governance structures they are subjected to. By definition, contract law is highly adaptable to new challenges – much more so than public law. To reiterate, at least in theory, there are few hard limits to establishing governance frameworks through contracts that embody public-interest principles. This, too, is a form of freedom within property and contract law. Therefore, a pragmatic next step toward new accountability norms might be to first theorize what contractual solutions are needed to govern phenomena like those mentioned above in a more public-oriented way, and then to devise practical solutions to implement them.Footnote 62
A particularly instructive – and cautionary – area is the law governing philanthropy, endowments, foundations, and fiduciary contracts. Drafting a contract that binds a corporate executive to serve a specific public interest – whether improving content moderation or ensuring that the data intake of a large language model reflects values like diversity and inclusion – is not particularly difficult. Private law is brimming with fiduciary relationships.Footnote 63 Those can be construed between directors and shareholders, trustees and beneficiaries, and others. Typically, these fiduciary duties are anchored to the profit interests of the principal. But that is not a given. It is entirely feasible to create an entity whose fiduciary duty is, for example, to safeguard environmental sustainability or maintain an impeccable human rights record – at all costs.Footnote 64 First – cautious and potentially ceremonial – experiments have already begun. In 2023, Anthropic, a leading artificial intelligence company, established a so-called Long-Term Benefit Trust, which is intended gradually to assume influence over the company’s board and to steer the firm toward public-interest objectives. Especially in companies controlled by a small group of people, or even a single shareholder, such structures are not only possible but relatively straightforward to implement. Choosing not to build such frameworks is, in reality, a normative decision, not a reflection of unavailable options.
In this context, the Oversight Board’s model of establishing an irrevocable trust, with trustees whose fiduciary duty is to protect the Board’s independent judgment, is a genuinely innovative approach.Footnote 65 However, making such arrangements work in practice requires genuine commitment from organizations willing to cede power, capital, and influence on entities whose fiduciary duty is tied to a pre-defined public interest. Separating agents for specific functions is an indispensable structural principle of society and any larger organization.Footnote 66 This is also well recognized in economics. Problems arise, the economists taught us, when the interests of the principal diverge from that of the agent.Footnote 67 Therefore, any separated entity committed to governance in the public interest must have the authority to challenge practices within the company that conflict with this duty. Establishing such differentiated agents within a single company is not only difficult but likely demands a fundamental cultural shift in how we understand the role of organizations in contemporary economic and social life. Lina Khan has called for such “structural separations” from an antitrust perspective.Footnote 68 Evelyn Douek built on this, advocating for a “separation of functions” to disentangle content moderation from the business operations of social media platforms.Footnote 69 How exactly these principles might be implemented in practice remains an open question. Yet, it will be the responsibility of lawmakers to offer clear incentives, signaling that these structures are genuinely desired, and ensuring that “internal but separated governance entities” do not become mere ceremonial gestures.
6.2.2 Infrastructure, Code, and Supply Chains
But repurposing private law will not be enough. To effectuate new accountability norms, we must move beyond the traditional understanding of the normative. Corporations, after all, are human-run organizations and, as such, are inherently subject to legal regulation and external feedback. Yet, their power extends beyond – indeed, often eclipses – the conventional realm of rulemaking and enforcement. Even in content moderation, this book’s example of rather unaccountable private power structures, rulemaking, and rule-enforcement covers only one dimension. As discussed in Chapter 2, also here, and even more so in other technologies, corporate influence operates not only through rules but through code, technology, infrastructure, and hardware. Thereby, corporate global governance often bypasses “traditional” mechanisms – normative documents, reports, or public consultations. Instead, it operates through code, technology, and infrastructural control. Consider, for example, the role of Starlink, Elon Musk’s satellite-internet company, during the Ukraine war since 2022. Initially, Ukrainian forces depended heavily on Starlink’s infrastructure, until, during a critical counteroffensive, intact systems inexplicably went offline or – prior accounts were later disputed – were never activated in crucial areas.Footnote 70 Reports suggest this was due to Musk’s acquiescence to Russian President Vladimir Putin’s threats against Musk’s broader business interests and nuclear war if the company continued to aid Ukraine. Whichever concrete version of the story happened, the example epitomizes the level of immediate infrastructural sway such companies and the individuals controlling them hold over world affairs, an effective – yet troubling – form of governance.
Therefore, I echo demands for conceptual expansion in our understandings of regulation and governance: from focusing narrowly on legal forms to examining the organizational and techno-normative structures where power is enacted.Footnote 71 These frameworks encode normative decisions into technological systems, shaping societal interactions and individual experiences. Just as digital platforms have disrupted traditional, localized business-to-consumer relationships, new technologies transform and discipline societal and commercial interaction. Regulating these shifts will require more than traditional rulemaking and theorizing constrained by past experience. The focus must move – and already does so in the academy – to include the underlying infrastructures and computational systems themselves. As those systems are largely operated by private, for-profit actors, future governance arrangements will arguably further entangle spheres of authority of centralized corporate actors that benefit from stylized guarantees of property and innovative modes of contracting while classic government increasingly adapts entrepreneurial and arguably more pragmatic tactics.Footnote 72 Accountability mechanisms and structural, substantive rules should therefore be embedded not only in external regulations, but directly in the code and infrastructure. In this way, good governance must permeate every layer of the complex socio-technological practices we call artificial intelligence, social media, or any other emerging technology.
This task is made all the more challenging by the technological modalities unique to each sector. Two aspects stand out. First, while vertically integrated corporations may retain control over much of these technologies, their dissemination may give rise to new, semi-autonomous systems beyond the reach of their creators. That is especially the case for “artificial intelligence.” It is crucial not to conceive of “artificial intelligence” as a single, monolithic entity crafted by one actor. These are intricate, multifaceted systems, interacting with a variety of players across entire “supply chains” of technology and governance.Footnote 73 As Jennifer Cobbe, Michael Veale, and Jatinder Singh demonstrate, the intricate interplay of interconnectedness and centralization in these sectors complicates the attribution of legal responsibility. Yet, this is not a problem unique to new technologies; it mirrors issues long observed in global commerce.Footnote 74 Governance proposals and heaps of local laws – think tort, product safety, intellectual property, and so forth – for such scenarios already exist. Legal tools to address such injustices are already in place. They may be underutilized or lack enforcement power at present, but this reflects the shortcomings of political economy and questionable alure of statements of “newness” on behalf of corporate executives more than the inadequacy of legal possibilities.Footnote 75 In fact, some of these issues may not require entirely new governance structures, but rather a more assertive application and modern interpretation of existing liability regimes.
Second, positively impacting the politics of artifacts requires restructuring the epistemologies and creative processes that produce these artifacts. In other words, a crucial element in effectuating new accountability norms will be to entrench them in the culture and education of engineers, computer scientists, biologists, economists, and, frankly, lawyers. While professional ethics are often considered ineffective and difficult to enforce, we should not underestimate the power of ethical and cultural norms in organizational contexts and, especially, in higher education. If universities do not teach engineers and economists to think about the harms – politely termed “social costs” – that their practices may cause, how can we expect them to recognize these risks?Footnote 76 Conversely, when ethical considerations and social awareness become deeply integrated into a sector’s culture – often as a result of earlier scandals – these norms can curb questionable but profitable practices. For example, the field of human genetics research is relatively well-regulated through a combination of ex ante regulation, formal accountability procedures, and a cultural commitment to certain ethical standards.Footnote 77 In short, eventually, any system of new accountability norms must combine legal rules, technological means, and people.
6.3 Reasons for Optimism
This brings us to the final, and cautiously optimistic, epilogic notes of this book. Any future governance arrangement – whether private or otherwise – exists within a sociopolitical context. Governance, after all, is about shaping human behavior. Therefore, it should respond to the needs and desires of the humans it governs. Crafting concrete frameworks for this will undoubtedly be complex. Even the very definition of “human” might evolve with advances in artificial intelligence, biotechnology, and human “enhancement” (though one cannot help but notice the hype in some of these fields).Footnote 78 Yet, whenever groups of people are brought together through the imposition of rules or by reliance on technological infrastructures, they inevitably begin to voice demands. These demands will often reflect the classic ideals of public law: individual rights, self-governance, participation, reason-giving, accountability, equal treatment, and due process.
In other words, when publics form – whether entirely transnational or virtual – demands for good governance will inevitably follow. And delivering good governance often hinges on adapting these public law principles. Whether we still call them – or should call them – public law principles is a different question.Footnote 79 Maybe, some of the abstract ideas might go down easier in some sectors if they were conceptually repackaged.
However, the striking development of the last centuries is that this adaptation will increasingly occur beyond the realm of the dominant authorities of the time. Consider this: After the unfathomable horrors of two World Wars and the Shoah, the state was the undisputed locus of supreme authority in Europe. States, at the time, had a distinct shape, trajectory, and ideology (the latter especially fueled by the Cold War). In the West, as a matter of principle, states would protect fundamental rights – more so after 1968 and not necessarily in a fair and equal matter (think of Algerians in France and then still prevalent colonialism in general) but bear with me.Footnote 80 Nonetheless, the post-War era is also one of transnationalism, especially in Europe. However, it took the European Union – an entity rooted firmly in public law – decades to build a meaningful human rights framework. At the time, the idea that a supranational organization, primarily focused on facilitating trade in Western Europe, should concern itself with human rights seemed baffling. Twice in the late 1950s, the European Court of Justice explicitly dismissed the notion that human rights law had any place within the Community’s acquis.Footnote 81 But this position evolved. Gradually, the Court “discovered” that the supranational project had a voice in human rights matters.Footnote 82 Decades later, the European Union, now an institutional giant tackling everything from climate policy to migration, applies a comprehensive human rights charter – a charter that is, amusingly, used mostly to holding its Member States to account rather than the Union itself.
None of this would have seemed plausible in the early 1950s. And yet it happened – driven, in no small part, by public pressure and savvy lawyers. The lesson here is that power adapts in unpredictable ways. Today, much like then, power structures evolve in response to the demands of the public, though increasingly beyond the familiar corridors of nation-states.
Therefore, this book’s final message is one of cautious yet genuine optimism. Both case studies illuminate the complexity of holding novel power structures, such as social media companies, accountable. These entities operate in ways that challenge traditional regulatory paradigms: classic state-based regulation often reaches its limits, and corporate self-regulation remains, at best, incremental. Yet, despite these challenges, the case studies reveal how quickly, and fundamentally groundbreaking organizations normative regimes, and accountability forums can emerge. Their current shortcomings, when measured against the ideals they aspire to emulate, are not a reason for disillusionment. On the contrary, these limitations serve as a call to action – to imagine more ambitious improvements, devise innovative governance concepts, and craft positive scenarios for accountability in the digital age.
Achieving these goals demands a careful balancing act. We must avoid the pitfalls of narrow doctrinalism, which clings too rigidly to traditional legal forms while neglecting the rich variety of governance methods beyond the state. At the same time, we must reject the temptation of purely ceremonial law-mimicry, which risks reducing accountability efforts to symbolic gestures devoid of substantive impact. Instead, we should embrace the creativity and ingenuity displayed in emerging accountability experiments, which offer fertile ground for exploring new models of governance. The enduring ideals of public law remain central to these efforts, even as their application evolves in response to new challenges. Projects like rights, review, and democratic self-governance might have to be repackaged, adapted, and other means of governance repurposed in light of them. In that sense, public law’s principles – its emphasis on accountability, fairness, and the protection of public interests – persist as touchstones, even when traditional legal frameworks falter. I allow myself to come back to a quote by Julie Cohen, who, ever a staunch critic of “performances” like the Oversight Board, nonetheless agrees that
“rule of law” language is intended to supply a framework for talking about power, calling it to account, and constraining systematic abuse. Designing governance institutions for the networked information era requires new thinking about how to translate those broadly framed rule-of-law commitments into mid-level principles capable of being operationalized within networked digital environments.Footnote 83
Emulated Guardians, like the Oversight Board or the EU’s ODSs, exemplify this new thinking. Yet, a skeptic might caution, are these institutions not merely flawed facades – empty rituals crafted by corporate executives and starry-eyed Eurocrats?Footnote 84 Some of this critique is well-founded. Yet, as this book argues – particularly through its focus on emulation – there is much to be gleaned from these imperfect regulatory and corporate experiments. While undeniably fragile and flawed, they represent a new breed of institution. Born out of necessity and shaped by the ingenuity of legal entrepreneurs, these entities fuse self-serving corporate interests with gestures toward broader public values. Once established, they take on a life of their own, drawing on the residual faith in rule-of-law rhetoric – though, admittedly, such lofty ideals may resonate more strongly in Europe than in the United States.Footnote 85 When approached thoughtfully, the rule-of-law language Cohen references offers precisely the mindset, and attracts precisely the individuals, capable of helping to build innovative accountability structures. Can lawyers accomplish this alone? Certainly not. Must we take into account material and distributive aspects beyond norm-creation and institution-building?Footnote 86 Absolutely. Yet, until proven otherwise, we might as well explore how the performativity and symbolism inherent in public law ideals can be harnessed to incrementally create meaningful guardians of power that work toward a more just world. I would argue that this is even more critical in times of growing public distrust and widespread uncertainty over who truly holds the reins of power – especially in a world where traditional markers of authority fade away. Arguably, this distinguishes broader questions of governance and organizational power like content moderation from the specific issue of privacy, which lacks a clear organizational program when compared to individual rights adjudication and self-governance, and which therefore appears to be indeed a hard case even for the biggest optimist. Likewise, the shifts in regulatory policy and corporate strategy among US digital corporations in early 2025 – closely aligned with the second Trump administration – underscored just how fluid and precarious these governance arrangements are. To assume that the fight for more accountable technology companies is lost simply because the Oversight Board or the DSA fell short of their initially overblown expectations would accomplish only one thing: further entrenching the status quo.
However, becoming authoritative guardians will require time; after all, courts and other traditional public institutions took generations to achieve their peak authority – an authority, ironically, now seemingly in decline. Yet dismissing these emerging spectacles as fruitless would all but guarantee they yield nothing worthwhile. Public law’s role in this shifting landscape transcends formal regulation. It provides a framework for thinking, a lens through which governance can be interpreted and molded. Its enduring power lies in its universality, its ability to resonate with our collective imagination, and its intrinsic value as a guide for accountability and justice. As Megan Donaldson and Benedict Kingsbury have put it, public law is both “a method and a mindset.”Footnote 87 These qualities ensure that its relevance endures, even as governance increasingly transcends the traditional confines of the state.
Ultimately, public law’s legacy lives on not merely through formal statutes or court decisions but through the broader structures that shape how we think, communicate, and envision accountability. It offers a foundation for navigating an uncertain future, not because it has all the answers but because it provides a framework for asking the right questions – and for imagining a governance landscape that is both innovative and principled. The book’s opening question centered on how to control private power structures beyond the state, particularly as the state’s ability to exert its authority gradually diminishes. In response, we may conclude that perhaps the most surprising, and also the most encouraging, takeaway of this book is that public law remains a dominant framework in global governance, even beyond the confines of traditional public law and public actors. Concepts from administrative and constitutional law are seeping into private law structures – often in ways that are twisted, occasionally self-serving, and slightly askew, yet undeniably significant. Public law, then, endures as a vital force, not only for what it has been, but also for what it continues to inspire: a vision of governance grounded in ideals that are universally understood, deeply resonant, and, ultimately, built upon good ideas.
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