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Why a Data Disclosure Law Is (Likely) Unconstitutional
Get PDFSocial media platforms have changed the very structure of communication. These platforms exert significant influence over how we get our news, how we form and join political movements, and how we connect with friends and family. But social media platforms are black boxes. Moderation algorithms are opaque--even to the platforms themselves — and attempts by third parties to research these algorithms are often frustrated. Because platforms withhold data necessary for public interest research, Congress might step in and mandate data access for certain researchers and journalists. I conclude that any such effort would (likely) be unconstitutional under the First Amendment.
My purpose in this Note is twofold. First, I provide a framework for evaluating the constitutionality of a data disclosure law and explain which arguments are most likely to succeed. I also provide some nalytical categories of platform data. These categories should help practitioners and policymakers evaluate the ways data disclosure might chill the free expression of platform users. Second, I explore how easily the First Amendment can be used to strike down economic regulations. Using a data disclosure law as an exhibit, I hope to illustrate and explain the Supreme Court\u27s shifting understanding of free speech.
My Note proceeds in four parts. Part I provides relevant background and outlines a hypothetical data disclosure law; Part II explores the many arguments regulated platforms could deploy to invalidate a data disclosure law; Part III provides a brief recommendation to legislators seeking to draft a data disclosure law; and I conclude in Part IV by arguing for a reinterpretation of free speech jurisprudence
Intellectual Property Law and Redressive Autonomy
Get PDFIntellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes — known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning
Memoriam: Justice John Paul Stevens
Get PDFWhen Justice John Paul Stevens passed away on July 16, 2019, I was flooded with personal memories of my year clerking for him. The standard words of comfort when someone dies are that they will live on through the individuals that knew and loved them. Justice Stevens sat on the Supreme Court for more than three decades; his loss would be felt beyond those who knew him personally. I wondered how history would remember him
The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law
No full textReflecting on the Fourth Restatement of the Foreign Relations Law, these essays provide a comprehensive survey of the most significant issues in contemporary U.S. foreign relations law. They review the context and assumptions on which that work relied, critique its analysis and conclusions, and explore topics left out of the published work that need research and development. Collectively the essays provide an authoritative study of the issues generating controversy today as well as those most likely to emerge in the coming decade.
The book is organized in three parts. The first provides a historical context for the law of foreign relations from the beginning of the twentieth century to the present. The second and largest part looks at contested issues in foreign relations law today, from the status of international law as federal domestic law to presidential authority to make, unmake, and apply international agreements; and to the immunity of international organizations and foreign government officials from domestic lawsuits. The last part considers how foreign relations law might develop in the future as well as the difficulties raised by using the Restatement process as a way of contributing to the law\u27s development.
These essays for the most part concentrate on U.S. law, but the problems they face are common to all democratic republics that seek to reconcile international relations with the rule of law.https://scholarship.law.columbia.edu/books/1263/thumbnail.jp
Why the Fed Should Issue a Policy Framework for Credit Policy
Get PDFThe Federal Reserve has long used policy frameworks to both explain and inform its policymaking. These policy frameworks typically explain what the Fed is seeking to achieve in a given domain and how it plans to achieve its desired aims. Two prominent examples are the Fed’s use of Bagehot’s dictum when acting as a lender of last resort and its monetary policy framework issued in 2012 and revised in 2020. In both instances, the framework provides a foundation for informed debate among Fed policymakers, Congress, and the public, enhancing both efficacy and accountability. Since the onset of the Covid crisis, the Fed has entered into a new domain of credit policy, but it has yet to provide a cohesive policy framework explaining what it is seeking to achieve and how it plans to accomplish given aims. This has made it far harder to assess whether the myriad new credit facilities that the Fed has created have in fact achieved desired aims and the drawbacks of those facilities. Just as importantly, it contributed to a disconnect between what Congress expected when it gave the Fed and Treasury $454 billion in the CARES Act and Fed and Treasury’s failure to use more than a fraction of those funds despite ongoing economic headwinds. Developing a cohesive framework for credit policy may not be an easy task, but the challenges embedded in the task are precisely what make it so important
Equipping the Nigerian National Petroleum Corporation for the Low-Carbon Transition: How Are Other National Oil Companies Adapting?
Get PDFThe Nigerian National Petroleum Corporation’s (NNPC) persistent governance challenges have both hampered Nigeria’s oil sector development and deprived the country of public resources. The oil, climate, and COVID-19 crises and the ramp-up of the low-carbon transition exacerbate this reality, with the national oil company (NOC) delivering sub-optimal returns to its stakeholders.
Other NOCs have taken meaningful steps to become players in the low-carbon energy transition domestically or internationally – for example, Saudi Arabia’s Saudi Aramco, Norway’s Equinor, Brazil’s Petrobras, Malaysia’s Petronas, and Algeria’s Sonatrach. These NOCs can serve as sources of inspiration for NNPC. These five NOCs have also undergone reforms of various aspects of their corporate governance. Even if not always sufficient, these reforms position them to be players of the energy transition.
The current crisis provides a unique opportunity and political momentum for the Nigerian government and legislature to reconsider NNPC’s role in the context of the energy transition and implement profound reform of the company. While it is an incredible policy and political challenge, other NOCs are showing the way, and policy guidance is already out there to guide countries and companies
The Covid-19 Pandemic and Business Law: A Series of Posts from the Oxford Business Law Blog
Get PDFThe COVID-19 Pandemic is the biggest challenge for the world since World War Two, warned UN Secretary General, António Guterres, on 1 April 2020. Millions of lives may be lost. The threat to our livelihoods is extreme as well. Job losses worldwide may exceed 25 million. Legal systems are under extreme stress too. Contracts are disrupted, judicial services suspended, and insolvency procedures tested. Quarantine regulations threaten constitutional liberties. However, laws can also be a powerful tool to contain the effects of the pandemic on our lives and reduce its economic fallout. To achieve this goal, rules designed for normal times might need to be adapted to ‘crisis-mode’, at least temporarily. Business Laws in particular fulfill an important function in this context. Our livelihoods depend on how well businesses are able to navigate through the current crisis. Beginning in early February 2020, the Oxford Business Law Blog has published posts on how Business Laws could contribute to containing the effects of the COVID-19 Pandemic, and on how they need (or need not) to be adapted to achieve the desired effect. This working paper collects the posts published throughout March in chronological order. Thematically, the focus is on finance, financial regulation and insolvency laws. This is not surprising as the most pressing problem businesses face right now is to manage their cash flow. We hope that the contributions in this paper inspire more work by scholars and help policymakers worldwide to adopt the right measures to reduce the damage caused by the Pandemic
Innovation Versus Encrustation: Agency Costs in Contract Reproduction
Get PDFThis article studies the impact of exogenous legal change on whether and how lawyers across four different deal types revise their contracts’ governing law clauses in order to solve the problem that the legal change created. The governing law clause is present in practically every contract across a wide range of industries and, in particular, it appears in deals as disparate as private equity M&A transactions and sovereign bond issuances. Properly drafted, the clause increases the ex ante economic value of the contract to both parties by reducing uncertainty and litigation risk. We posit that different levels of agency costs are the motivating factors that influence beneficial innovations in governing law clauses as well as their mirror opposite, costly encrustations. Our data show that lawyers who draft private equity M&A deals pay more attention to the deal terms than lawyers producing corporate and sovereign bond contracts. Because agency costs are low in the private equity setting, we observe significantly more innovation in private equity deals as compared to sovereign and corporate bond transactions where the agency problems of drafting lawyers are much greater. More surprising, we also find that contracts drafted by private equity M&A lawyers have more obsolete and encrusted terms than the contracts of the other deal types. Our conjecture is that the lawyers\u27 dominant drafting strategy is to find examples of a desired term in other documents and import that language verbatim into the contract together with other redundant and obsolete terms including, on occasion, terms that may harm the clients\u27 interests if retained in the contract
The Curse of Bigness: New Deal Supplement
Get PDFThis is a supplement to the book, The Curse of Bigness: Antitrust in the New Gilded Age. It covers the years between 1920 - 1945, with a focus on the New Deal, and represents material left out of the original book.
It is meant to be read together with the larger volume, but can also be read separately
Political Wine in a Judicial Bottle: Justice Sotomayor\u27s Surprising Concurrence in \u3cem\u3eAurelius\u3c/em\u3e
Get PDFFor seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable as a goal of self-determination. Without even acknowledging the existence of this debate, Justice Sotomayor recently declared the existence of the “compact” in a concurrence in a case in which no one raised it. By doing so, Justice Sotomayor took sides in the divisive political debate over Puerto Rico’s future