This Article develops a theory of the appropriate role of the First Amendment in governing the re... more This Article develops a theory of the appropriate role of the First Amendment in governing the regulation of commoditized speech (that is, speech people buy and sell). Courts should apply a “bargain fairness” model when reviewing such regulations: Speech regulations that merely enhance the bargaining power of one of the parties to a transaction — by ameliorating inequalities in setting the terms of the bargain — should be upheld, while regulations that have other purposes and effects should be struck down.
This Article shows that this simple theory tracks the Supreme Court’s precedents remarkably well. It is also judicially manageable, places minimal burdens on valuable First Amendment speech, and effectively tracks widespread intuitions about the appropriate boundaries between permissible and impermissible censorship.
The rise of increasingly complex algorithms calls for critical thought about how best to prevent,... more The rise of increasingly complex algorithms calls for critical thought about how best to prevent, deter, and compensate for the harms that they cause. This Article argues that the criminal law and tort regulatory systems will prove no match for the difficult regulatory puzzles algorithms pose. Algorithmic regulation will require federal uniformity, expert judgment, political independence, and pre-market review to prevent—without stifling innovation—the introduction of unacceptably dangerous algorithms into the market. This Article proposes that certain classes of new algorithms should not be permitted to be distributed or sold without approval from a government agency designed along the lines of the FDA. This “FDA for Algorithms” would approve certain complex and dangerous algorithms when it could be shown that they would be safe and effective for their intended use and that satisfactory measures would be taken to prevent their harmful misuse. Lastly, this Article proposes that the agency should serve as a centralized expert regulator that develops guidance, standards, and expertise in partnership with industry to strike a balance between innovation and safety.
Debates over the “right to be forgotten” loom ever larger. Europe increasingly recognizes such a ... more Debates over the “right to be forgotten” loom ever larger. Europe increasingly recognizes such a right. To many in the United States, however, a right to be forgotten appears misguided and deeply foreign, inconsistent with the First Amendment’s commitment to uninhibited, robust, and wide-open exchange. But even here, the growing realization that everything people do can be, and often is, permanently recorded and stored has begun to provoke growing disquiet.
This Article has two purposes. The first is to explain the principle rooted in American law and culture that most strongly supports an American right to be forgotten—a deep constitutional commitment to what this Article calls the “revisability principle.” It is the principle that an individual’s identity should always remain, to some significant extent, revisable; that no person should be tied forever to her identity at a particular moment in the distant past, and that to the extent individuals must forever account for who they were long ago, their individual freedom to act and speak as they wish—both in the past and in the future—is powerfully constrained. Personal autonomy is abridged when individuals lose the capacity to control, to some significant degree, their own destiny by fashioning a conception of themselves through successive decisions about who they wish to be through deliberate choices that they make.
The second purpose of this Article is to explain how emerging technologies place unprecedented pressures on the revisability principle. Technologies and social practices that result in the permanent storage, ready access, and widespread dissemination of past mistakes or even prior identities that a person in the present hopes to leave behind impinges on the principle of revisability by making it more and more difficult to disassociate oneself from past choices that no longer reflect one’s self-conception. To the extent individuals must forever account for decisions in the distant past—people they in some sense no longer are—their freedom to speak, engage, and participate in democratic society and cultural creation is powerfully constrained. A capacity to engage in self-revision is critical to fully realizing the First Amendment’s commitment to debate that is uninhibited, robust and wide-open.
At various points the Supreme Court has selected against the revisability principle. But many modern scholars have argued that these cases—which placed the right to receive ideas and debate them directly into conflict with the revisability principle—imply there simply is no revisability principle, or that it plays no important role in the right to freedom of speech protected by the First Amendment. Such scholars draw the wrong lesson from those cases. This Article’s ultimate aim is to explain the centrality of the right to revise to the liberty and freedom protected by the constitution. For the judge confronting a legal regulation meant to safeguard revisability, a critical aspect of any proper First Amendment analysis must be consideration of the degree to which the regulation achieves these aims.
In the immediate aftermath of the Supreme Court’s landmark 2008 ruling in Medellín v. Texas, crit... more In the immediate aftermath of the Supreme Court’s landmark 2008 ruling in Medellín v. Texas, critics attacked the Court’s holding as deeply inconsistent with the original understanding of treaty interpretation. Medellín, wrote one scholar, “cannot be reconciled with any identifiable version of originalism.”
This Article carefully reexamines the interrelationship between the late-eighteenth century law of nations, the framing and ratification of the federal Constitution, and the practices of the early Supreme Court. In uniting these threads, it reveals a link — patent and remarkable — between the late eighteenth century law of nations, the Constitution’s decision to vest treaty interpretation in the judiciary, and the methods of treaty interpretation employed by the Supreme Court in the early republic.
Textual treaty interpretation — Textualism in all but name — was thought to be a requirement of the law of nations at the time of the Constitution’s adoption. The Constitution’s Framers — who knew the law of nations’ interpretive rules — invested treaty interpretation in the judiciary for precisely this reason, designing the federal judiciary to allow independent and expert judges to interpret treaties textually even if that meant that such interpretations went against the interests of the United States. The Supreme Court, through the end of the Marshall era, did precisely as the Framers intended, holding to a muscular Textualism, citing often to interpretive rules embedded in the law of nations as it did so.
Ultimately, this historical reexamination uncovers a fascinating story about the interplay between interpretive expectations and constitutional and institutional design. The law of nation’s requirement that treaties be interpreted textually allowed the young United States the opportunity to bind its own hands and thereby obtain the credibility necessary to deal with European powers on equal footing. Vesting treaty interpretation in the judiciary meant the United States’ treaty commitments would be honored as a matter of positive law. But this strategy depended in no small measure on an ability to signal to other nations precisely how those treaties would be interpreted. The law of nations’ requirement that treaty interpretation be rule-bound and textual made the United States’ decision to invest treaty interpretation in the judiciary more than an illusory promise. It ensured other nations their commitments would be honored according to international maxims of interpretation well-settled and widely-known.
This essay explains how the ideology of private commercial lawyers indirectly but profoundly shap... more This essay explains how the ideology of private commercial lawyers indirectly but profoundly shapes society. It is meant to counter a somewhat common view that commercial litigators acting in their capacity as commercial litigators have little impact in shaping public values and public policy.
Legal innovations crafted by private lawyers in private litigation have proven an important aspect of American lawmaking throughout American history. The notion that lawyers only seek to zealously take advantage of legal loopholes and maximize client wealth misses something important about how American private lawyers conceive of themselves and their role in the legal system.
Lawyers have long understood that they make private law into public policy through a process of definition and contestation that occurs within the courtroom and the boardroom — not merely through service in legislatures, professional societies, and regulatory agencies. That is, as long as there have been American lawyers, they have been developing legal strategies and legal tools that do more than serve immediate client interests but rather also serve deeper structural principles that improve society.
This has important consequences for both legal education and the legal profession for it reveals that the ideology of commercial lawyers, separate and apart from movement lawyers and society proper, are a powerful generative force. The ideology of these private lawyers shapes public values in countless innovations promulgated collectively in court rooms and boardrooms, through decisions about how to argue individual claims, structure transactions, and pursue private litigation.
In McCutcheon v. FEC, the Supreme Court tightened First Amendment limits on Congress’s authority ... more In McCutcheon v. FEC, the Supreme Court tightened First Amendment limits on Congress’s authority to regulate campaign financing. McCutcheon ostensibly left in place the old regime that allows campaign-finance regulation so long as it strikes at quid pro quo corruption or its appearance. But two recurring themes in the McCutcheon opinion indicate that this standard will from hereon be more difficult to meet. One is that campaign-finance laws prevent individuals from participating meaningfully in democratic change. The second is that Congress cannot be trusted to pass campaign-finance laws because such laws are tainted by self-interest. As Chief Justice Roberts wrote in McCutcheon’s plurality opinion, “[T]hose who govern should be the last people to help decide who should govern.” This Essay argues that these two themes actually chart a way forward for those who wish to see greater regulation of campaign financing. If Congress were to hold a national referendum to reenact the limits the Supreme Court struck down in McCutcheon, those limits would be constitutional even though the same limits passed by Congress were not. The reason is that limits backed by a popular vote would satisfy McCutcheon’s concerns with congressional self-dealing while vindicating directly its concern with maximizing each individual’s opportunity to take an active part in democratic self-governance. Moreover, an answer from the People themselves to the most relevant question in any campaign-finance case—whether a practice gives rise to the appearance of corruption—is the best way one could imagine for discovering whether it does so. One might say that McCutcheon literally calls for a referendum on campaign finance. This Essay explores this notion in depth and closes by assessing the constitutionality and practicality of the referendum option.
Ronald Dworkin’s contributions to legal philosophy have been subject to severe criticism in recen... more Ronald Dworkin’s contributions to legal philosophy have been subject to severe criticism in recent years. Other legal philosophers call his arguments “deflected or discredited,” laced with “philosophical confusions,” and “deeply embedded” mistakes. As Brian Leiter writes, “[t]he only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path . . . .”
This Article endeavors to show that, far from an effort beset with primitive errors, Dworkin’s challenge to legal positivism in the opening pages of his seminal work was neither misguided nor trivial. Rather, Dworkin’s challenge remains as important and thought-provoking today as it was when he first set it down. His challenge, though straightforward, has never been satisfactorily answered. Rather than grapple with Dworkin’s argument, legal philosophers have either misunderstood or trivialized his insights in the decades since. But there is a reason H.L.A. Hart, one of Dworkin’s examiners at Oxford, saved his jurisprudence examination before ever having reason to believe that Dworkin would become the primary opponent to legal positivism. Hart’s challenge—the argument from theoretical disagreement—still burns bright nearly a quarter-century on.
Furthermore, this Article seeks to explain why legal positivism’s inability to preserve the face value of theoretical disagreement makes it improbable that legal positivism offers an adequate descriptive account of the nature of law. It also endeavors to outline why this deficiency is so immensely important. To accept the legitimacy of theoretical disagreement is accept that to know what the law is one must know something about the moral and political culture in which that law resides.
New York University Law Review Online, Apr 16, 2014
On April 22, 2014 the Supreme Court will hear argument in American Broadcasting Companies, Inc. v... more On April 22, 2014 the Supreme Court will hear argument in American Broadcasting Companies, Inc. v. Aereo, Inc., a case involving such technological boondogglery, such Rube Goldbergian skullduggery, such naked and unapologetic circumvention of the perceived purposes and aims of the Copyright Act and its enactors, that it will strike Textualism at the very core. In doing so, however, Aereo offers an occasion for deeper reflection on how we should understand the Copyright Act. Is there space for equity in the Copyright Act? The answer is an emphatic yes. But that equity is not to be found in judicially fashioned equities, spun from abstract incantations of the Act's purposes or values. The answer is in its text.
Michigan Law Review First Impressions, Apr 7, 2014
After 12 years, support for Windows XP ended on April 8, 2014. Microsoft Windows XP’s end of supp... more After 12 years, support for Windows XP ended on April 8, 2014. Microsoft Windows XP’s end of support, combined with a collective action failure stemming from individual users’ failure to realize or internalize the costs of failing to migrate or upgrade their operating systems, could be catastrophic. The attached essay briefly sketches out the argument for why software monopolists should be legally required to help other companies provide ongoing support for their products. First, it describes the conceptual and economic theories that would support such a requirement. Second, it describes the conflicting law governing the intersection between intellectual property and antitrust. Third, it exhorts Microsoft to extend the support clock, release its sourcecode, or make clear to the world that should anyone else wish to take on the task of providing future security support for Windows XP, Microsoft will help them to do so.
Almost every debate in statutory interpretation is framed as an argument between “Purposivists” a... more Almost every debate in statutory interpretation is framed as an argument between “Purposivists” and “Textualists.” This overlooks a remarkable and increasingly important area of interpretive disagreement—disagreements between Textualists. While the lines of division between Purposivists and Textualists are intensely studied and thought to be well understood, the question of how interpreters applying what they believe to be the same interpretive methodology argue with each other has received far less attention, even as highly-Textualist interpretation has risen to prominence in federal and state courts. What divides Textualists from other Textualists? Just posing the question raises many issues. What defines Textualism? When Textualists argue, what makes one textual argument superior to another? Is it even possible to argue over word and sentence meaning in a satisfying way?
This Article aims to explore this gap in the literature. It describes the areas over which Textualists argue when they argue about Textualism. In undertaking this exploration, it draws a number of conclusions, both about the structure of interpretive argument and about the modern meaning of Textualism itself. In doing so, it uncovers new areas of interpretive and normative conflict that seem to underlie interpretive disputes of all sorts—including those that divide interpreters of all stripes, not simply Textualists from one another.
Hastings Constitutional Law Quarterly, Dec 12, 2013
This Article is an effort to explore the ways in which speech platforms represent a new challenge... more This Article is an effort to explore the ways in which speech platforms represent a new challenge to the First Amendment, one that will require it to bend if we are to prevent the Lochnerization of the Freedom of Speech. It ties together various threads — the power of automation, the centrality and power of Internet media platforms, the doctrines developing in the courts, the actual acts of censorship in which these platforms regularly engage, and the core purposes the First Amendment was designed to serve — to make a sustained argument that we must think seriously about restructuring and dejudicializing the First Amendment if we are to avoid seeing the First Amendment transformed into a powerful shield for the very sorts of censorship it was written to prevent.
This Note argues that judges should invalidate terms in contracts of adhesion that place the risk... more This Note argues that judges should invalidate terms in contracts of adhesion that place the risk of loss on the costlier cost-avoider or that grant an option to one of the parties to impose non-reciprocal costs on the other. It goes on to justify this rule, arguing that it minimizes both the primary and secondary costs of contracts of adhesion.
This Comment argues that judges cannot apply a legally binding interpretive framework without fir... more This Comment argues that judges cannot apply a legally binding interpretive framework without first overcoming an unavoidable and often insurmountable interpretive obstacle - step zero, the initial inquiry into whether the interpretive framework applies at all. Making this step zero determination often forces judges into the middle of an intertemporal clash between a past and present legislature - a difficult lose-lose situation. This step zero problem ultimately means that binding interpretive methodologies are almost sure to unravel unless there is methodological consensus among past and future legislatures.
When is software, or content generated by software, "speech" for First Amendment purposes? The Su... more When is software, or content generated by software, "speech" for First Amendment purposes? The Supreme Court's cases suggest two approaches. One approach would find that software or software-generated content is always speech simply because it conveys information. Another approach would find that software is only speech when it conveys information in a manner similar to traditional expressive forms. Speech would be better defined by its cultural position. Just as newspapers, newsletters, books, or pamphlets are entitled to First Amendment protection even if they are blank or unintelligible, software should be thought "speech" to the extent it shares a cultural position similar to other social practices that are thought of as speech. Since all software shares certain basic characteristics with speech, the Court might also create a category of "software speech" granting all software a modicum of heightened scrutiny.
After Boumediene v. Bush in 2008, the courts in the D.C. Circuit began to hear habeas petitions f... more After Boumediene v. Bush in 2008, the courts in the D.C. Circuit began to hear habeas petitions from detainees at Guantánamo Bay.
At first, many writs were granted. The lower courts applied a functional framework for determining the admissibility, credibility, and probity of evidence, holding the government to the ordinary burden of preponderance of the evidence. However, as the government and detainees began to appeal habeas decisions on the basis of adverse evidentiary rulings, the Court of Appeals announced binding evidentiary rules limiting the district courts’ discretion to admit, exclude, weigh, and consider evidence as the district courts saw fit.
This Note argues that these evidentiary rules deny detainees a “meaningful opportunity” to contest the factual basis of their detention. The D.C. Circuit maintains that it holds the government to a preponderance standard and has cast its reversals of the District Court’s grants of habeas corpus as mere corrections in judging evidentiary probity. However, in substance, the Court of Appeals’ evidentiary rules have quietly but significantly eroded the evidentiary burden.
As we approach its five-year anniversary, this Essay briefly traces the ripple effects of the Sup... more As we approach its five-year anniversary, this Essay briefly traces the ripple effects of the Supreme Court’s ruling in Boumediene v. Bush. Boumediene probably never could have survived as a substantive detention framework, and has already become functionally irrelevant. Nonetheless, the efforts to cast Boumediene’s impracticability as a moral and pragmatic failure remain deeply misguided.
The Supreme Court’s decision in Boumediene was correct even if it was impossible for the courts to implement. For in deciding Boumediene the Supreme Court reaffirmed the centrality of equal protection, the right to freedom from arbitrary detention and the requirement of process before the application of force. As detention disappears, and the fight over Boumediene’s legacy begins, we would be well served to remember that Boumediene was always, could only ever be, a symbol, not a savior.
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This Article shows that this simple theory tracks the Supreme Court’s precedents remarkably well. It is also judicially manageable, places minimal burdens on valuable First Amendment speech, and effectively tracks widespread intuitions about the appropriate boundaries between permissible and impermissible censorship.
This Article has two purposes. The first is to explain the principle rooted in American law and culture that most strongly supports an American right to be forgotten—a deep constitutional commitment to what this Article calls the “revisability principle.” It is the principle that an individual’s identity should always remain, to some significant extent, revisable; that no person should be tied forever to her identity at a particular moment in the distant past, and that to the extent individuals must forever account for who they were long ago, their individual freedom to act and speak as they wish—both in the past and in the future—is powerfully constrained. Personal autonomy is abridged when individuals lose the capacity to control, to some significant degree, their own destiny by fashioning a conception of themselves through successive decisions about who they wish to be through deliberate choices that they make.
The second purpose of this Article is to explain how emerging technologies place unprecedented pressures on the revisability principle. Technologies and social practices that result in the permanent storage, ready access, and widespread dissemination of past mistakes or even prior identities that a person in the present hopes to leave behind impinges on the principle of revisability by making it more and more difficult to disassociate oneself from past choices that no longer reflect one’s self-conception. To the extent individuals must forever account for decisions in the distant past—people they in some sense no longer are—their freedom to speak, engage, and participate in democratic society and cultural creation is powerfully constrained. A capacity to engage in self-revision is critical to fully realizing the First Amendment’s commitment to debate that is uninhibited, robust and wide-open.
At various points the Supreme Court has selected against the revisability principle. But many modern scholars have argued that these cases—which placed the right to receive ideas and debate them directly into conflict with the revisability principle—imply there simply is no revisability principle, or that it plays no important role in the right to freedom of speech protected by the First Amendment. Such scholars draw the wrong lesson from those cases. This Article’s ultimate aim is to explain the centrality of the right to revise to the liberty and freedom protected by the constitution. For the judge confronting a legal regulation meant to safeguard revisability, a critical aspect of any proper First Amendment analysis must be consideration of the degree to which the regulation achieves these aims.
This Article carefully reexamines the interrelationship between the late-eighteenth century law of nations, the framing and ratification of the federal Constitution, and the practices of the early Supreme Court. In uniting these threads, it reveals a link — patent and remarkable — between the late eighteenth century law of nations, the Constitution’s decision to vest treaty interpretation in the judiciary, and the methods of treaty interpretation employed by the Supreme Court in the early republic.
Textual treaty interpretation — Textualism in all but name — was thought to be a requirement of the law of nations at the time of the Constitution’s adoption. The Constitution’s Framers — who knew the law of nations’ interpretive rules — invested treaty interpretation in the judiciary for precisely this reason, designing the federal judiciary to allow independent and expert judges to interpret treaties textually even if that meant that such interpretations went against the interests of the United States. The Supreme Court, through the end of the Marshall era, did precisely as the Framers intended, holding to a muscular Textualism, citing often to interpretive rules embedded in the law of nations as it did so.
Ultimately, this historical reexamination uncovers a fascinating story about the interplay between interpretive expectations and constitutional and institutional design. The law of nation’s requirement that treaties be interpreted textually allowed the young United States the opportunity to bind its own hands and thereby obtain the credibility necessary to deal with European powers on equal footing. Vesting treaty interpretation in the judiciary meant the United States’ treaty commitments would be honored as a matter of positive law. But this strategy depended in no small measure on an ability to signal to other nations precisely how those treaties would be interpreted. The law of nations’ requirement that treaty interpretation be rule-bound and textual made the United States’ decision to invest treaty interpretation in the judiciary more than an illusory promise. It ensured other nations their commitments would be honored according to international maxims of interpretation well-settled and widely-known.
Legal innovations crafted by private lawyers in private litigation have proven an important aspect of American lawmaking throughout American history. The notion that lawyers only seek to zealously take advantage of legal loopholes and maximize client wealth misses something important about how American private lawyers conceive of themselves and their role in the legal system.
Lawyers have long understood that they make private law into public policy through a process of definition and contestation that occurs within the courtroom and the boardroom — not merely through service in legislatures, professional societies, and regulatory agencies. That is, as long as there have been American lawyers, they have been developing legal strategies and legal tools that do more than serve immediate client interests but rather also serve deeper structural principles that improve society.
This has important consequences for both legal education and the legal profession for it reveals that the ideology of commercial lawyers, separate and apart from movement lawyers and society proper, are a powerful generative force. The ideology of these private lawyers shapes public values in countless innovations promulgated collectively in court rooms and boardrooms, through decisions about how to argue individual claims, structure transactions, and pursue private litigation.
This Article endeavors to show that, far from an effort beset with primitive errors, Dworkin’s challenge to legal positivism in the opening pages of his seminal work was neither misguided nor trivial. Rather, Dworkin’s challenge remains as important and thought-provoking today as it was when he first set it down. His challenge, though straightforward, has never been satisfactorily answered. Rather than grapple with Dworkin’s argument, legal philosophers have either misunderstood or trivialized his insights in the decades since. But there is a reason H.L.A. Hart, one of Dworkin’s examiners at Oxford, saved his jurisprudence examination before ever having reason to believe that Dworkin would become the primary opponent to legal positivism. Hart’s challenge—the argument from theoretical disagreement—still burns bright nearly a quarter-century on.
Furthermore, this Article seeks to explain why legal positivism’s inability to preserve the face value of theoretical disagreement makes it improbable that legal positivism offers an adequate descriptive account of the nature of law. It also endeavors to outline why this deficiency is so immensely important. To accept the legitimacy of theoretical disagreement is accept that to know what the law is one must know something about the moral and political culture in which that law resides.
This Article aims to explore this gap in the literature. It describes the areas over which Textualists argue when they argue about Textualism. In undertaking this exploration, it draws a number of conclusions, both about the structure of interpretive argument and about the modern meaning of Textualism itself. In doing so, it uncovers new areas of interpretive and normative conflict that seem to underlie interpretive disputes of all sorts—including those that divide interpreters of all stripes, not simply Textualists from one another.
At first, many writs were granted. The lower courts applied a functional framework for determining the admissibility, credibility, and probity of evidence, holding the government to the ordinary burden of preponderance of the evidence. However, as the government and detainees began to appeal habeas decisions on the basis of adverse evidentiary rulings, the Court of Appeals announced binding evidentiary rules limiting the district courts’ discretion to admit, exclude, weigh, and consider evidence as the district courts saw fit.
This Note argues that these evidentiary rules deny detainees a “meaningful opportunity” to contest the factual basis of their detention. The D.C. Circuit maintains that it holds the government to a preponderance standard and has cast its reversals of the District Court’s grants of habeas corpus as mere corrections in judging evidentiary probity. However, in substance, the Court of Appeals’ evidentiary rules have quietly but significantly eroded the evidentiary burden.
The Supreme Court’s decision in Boumediene was correct even if it was impossible for the courts to implement. For in deciding Boumediene the Supreme Court reaffirmed the centrality of equal protection, the right to freedom from arbitrary detention and the requirement of process before the application of force. As detention disappears, and the fight over Boumediene’s legacy begins, we would be well served to remember that Boumediene was always, could only ever be, a symbol, not a savior.