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Strategic Litigation and Antitrust Petitioning Immunity
Full text linkThe First Amendment allows a business to sue its competitors even if the result of the suit would destroy them and lessen competition. It should not, however, protect a lawsuit that is designed primarily to inflict harm that is collateral to the proceedings. Unfortunately, courts have no solution for the case that simultaneously achieves both goals. As a result, they routinely fail to distinguish legitimate lawsuits from anticompetitive shams.
Sophisticated businesses are weaponizing litigation to inflict harm on their competitors and being rewarded with antitrust petitioning immunity thanks to the Noerr-Pennington doctrine. After decades of divergence between the courts and economists, the doctrine’s sham exception has been outsmarted. Economic analysis proves that the sham exception is woefully underinclusive and that more complex predatory suits are being inappropriately immunized. The Third Circuit’s recent AbbVie decision highlights how the existing sham standard sometimes forces courts into anticompetitive outcomes. My proposal is an aggressive, economically robust solution to properly and fairly prosecute predatory litigation
08. “School of Law receives $20 million gift from Donald Bren”
Full text linkBusiness leader and philanthropist Donald Bren continued his support of UCI with a $20 million gift to the School of Law in 2007
03. David E.I. Pyott: Letter of Support
Full text linkUCI Law letter of support from David E.I. Pyott of Allergan
Colonialism, Capitalism, and Race in International Law: Introduction to Symposium Issue
Full text linkPolar Shift: The Arctic Sustained
Full text linkhttps://scholarship.law.uci.edu/celebration_of_books_2022-2023_book-covers/1007/thumbnail.jp
“A Change is Gonna Come:” Developing a Liability Framework for Social Media Algorithmic Amplification
Full text linkFrom the moment social media companies like Facebook were created, they have been largely immune to suit for the actions they take with respect to user content. This is thanks to Section 230 of the Communications Decency Act, 47 U.S.C. § 230, which offers broad immunity to sites for content posted by users. But seemingly the only thing a deeply divided legislature can agree on is that Section 230 must be amended, and soon. Once that immunity is altered, either by Congress or the courts, these companies may be liable for the decisions and actions of their algorithmic recommendation systems, artificial intelligence models that sometimes amplify the worst in our society, as Facebook whistleblower Frances Haugen explained to Congress in her testimony.
But what, exactly, will it look like to sue a company for the actions of an algorithm?
Whether through torts like defamation or under certain statutes, such as those aimed at curbing terrorism, the mechanics of bringing such a claim will surely occupy academics and practitioners in the wake of changes to Section 230. To that end, this Article is the first to examine how the issue of algorithmic amplification might be addressed by agency principles of direct and vicarious liability, specifically within the context of holding social media companies accountable. As such, this Article covers the basics of algorithmic recommendation systems, discussing them in layman’s terms and explaining why Section 230 reform may spur claims that have a profound impact on traditional tort law. The Article looks to sex trafficking claims made against social media companies—an area already exempted from Section 230’s shield—as an early model of how courts might address other claims against these companies. It also examines the potential hurdles, such as causation, that will remain even when Section 230 is amended. It concludes by offering certain policy considerations for both lawmakers and jurists
Embracing Crimmigration to Curtail Immigrant Detention
Full text linkImmigration advocates have long objected to both the constitutionality and conditions of immigration detention. However, legal challenges to the practice have been largely unsuccessful due to immigration law’s “exceptionality.” Placing recent litigation carried out against immigration detention during the COVID-19 pandemic within the context of the judiciary’s approach to immigration, this Article argues that litigation is an extremely limited strategic avenue to curtail the use of immigration detention. I then argue that anti-immigration detention advocates should attempt to incorporate their agenda into criminal legal reform and decarceration efforts. This is important for both movements. Normatively, immigration detention raises comparable issues: Namely, that jailing people is, on the one hand, an extreme and cost-ineffective form of social control, and on the other, a tool to marginalize or “otherize” entire communities. Furthermore, there is evidence that ongoing efforts to decarcerate states and localities may be foiled by immigration detention. To the extent, therefore, that decarceration reforms are based on commitments to freedom or condemnation of the extensive use of carceral institutions, they are incomplete and even dangerous without including measures to address immigration detention. Immigration advocates, on the other hand, are more likely to succeed by placing the anti-immigration detention agenda within the scope of larger criminal legal reform than by pursuing immigration detention reform or through litigation