Private Law Theory

ABSTRACT
At first glance, dram shops – bars, taverns, or any other establishment that sells alcohol – and digital platforms appear to be wholly dissimilar spaces. The former is a physical location and encourages human-to-human interaction; the latter intentionally removes this interaction in favor of algorithms. Yet both share a similar incentive to entice bar patrons or platform users to linger longer and consume more. This incentive must be curtailed to protect the physical and mental well-being of society. This Article introduces a novel theory of tort liability for ‘digital dram shops’ which overserve ‘intoxicating algorithms’ and cause harm to platform users and third parties.

This Article is the first to relate dram shop laws to digital platform liability, and it proposes a remedy for plaintiffs and other parties harmed by algorithmic profiling. It uniquely argues that dram shop laws are well-suited to remedy a platform’s algorithmic harms because these laws impose duties and permit claims that are not commonly found in other tort-based actions, including (1) a duty to monitor consumption, and (2) relief for first- and third-party claims. Like the bartender trained to keep the drunkard at the bar, digital platforms train algorithms to keep the user on the platform. And just as bartenders are trained to learn when a patron needs a down-on-your-luck double on the rocks, algorithms are trained to optimize engagement in moments of vulnerability, such as users searching for mental health guidance, sobriety resources, or grief support. This Article contributes to privacy scholarship that has proposed and critiqued tort-based liability for over a century.

By analogizing digital platforms to dram shops, this Article also suggests a historical analogue privacy plaintiffs may use to find standing for privacy harms, specifically, in light of TransUnion, LLC v Ramirez. Its new theory of platform and algorithmic accountability is grounded in history yet adapted to modern digital exploitation. Courts could ‘cut off’ new-fashioned privacy harms through an old-fashioned duty of care.

Clark, Mason, Digital Dram Shops and Intoxicating Algorithms (March 2, 2026), Florida Law Review (forthcoming 2026).