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Reading Section 230
Get PDFIn Gonzalez v. Google, the Supreme Court, for the first time, agreed to hear a case concerning the interpretation of Section 230 of the Communications Decency Act, the most important law governing the internet. As Justice Thomas and others have noted, judges have overlooked Section 230’s text in interpreting the statute, relying instead on purpose. Yet scholars and critics, too, have eschewed the statutory text, relying on intent or consequences to favor alternate interpretations, but depriving the Court and litigants of the richness the statutory text offers.
This Article offers the first comprehensive analysis of Section 230’s text and structure. Section 230 means what it says: it excludes from its protection entities that act as publishers rather than intermediaries; treats, by default, all intermediaries as distributors; and offers extra protection to certain intermediaries—“Computer Good Samaritans”—who actively clean up certain categories of objectionable content on the internet.
This Article has significant implications. It finds that judges have consistently misinterpreted Section 230; therefore, judges should alter the main doctrinal inquiries for whether Section 230 immunity attaches, the entities to which it attaches, and the nature of that immunity. This Article also informs current political debates because Section 230 already incorporates the substance of many proposed reforms: Section 230 does not need to be reformed or re-written, only re-read. And this Article contributes to the current scholarly reconceptualization of textualism and suggests a new avenue of research: the intersection between inequality and interpretation
Measuring Judicial Collegiality Through Dissent
Get PDFWhile scholars frequently offer ideology as a primary explanation for judicial behavior, judges, and some scholars, emphasize the importance of collegiality on multimember courts. But there is disagreement over how to determine when collegiality is at work, and what type of multimember court is more likely to exhibit collegiality among its judges. Resolving these competing claims calls for a valid measure of collegiality.
This Article develops novel measures of collegiality based on dissenting judges’ expressions of collegiality towards judges in the majority. It uses judge-level and court-level databases to validate these measures by showing that the novel measures correlate with some, but not other, measures of dissent aversion—a feature of multimember courts that commentators see as aligned with collegiality.
The Article then investigates empirically settings where judges tend to act collegially and the characteristics of courts that tend to be collegial. Analysis reveals that collegiality is not associated with ideological homogeneity and is more likely to be found in published opinions; that the Supreme Court is more collegial than are the courts of appeals; and that collegiality is less likely to be found on courts with large complements of judges, and on courts with chambers spread across more courthouses
“I Am Better At Narrative Than Analytical History”: Schlegel’s Version of Intellectual History
Get PDFFunding Crises: An Empirical Study of the Paycheck Protection Program
Get PDFIn the early weeks of the COVID-19 pandemic, the United States Congress funded the Paycheck Protection Program (PPP) to address the devastating consequences of business closures and millions of employees losing both their jobs and healthcare coverage during a public health emergency. That program immediately pumped more than a half-trillion dollars of forgivable loans out to five million businesses. But criticism was swift and widespread, if sometimes spurious, with detractors attacking the award of loans to wealthy celebrities such as Kanye West, politically connected donors such as the Kushner family, and large corporations such as Shake Shack and Ruth’s Chris Steak House.
In this Article, we conduct an empirical study of the central component of the largest financial bailout in US history. We examine early quantitative data released by the Small Business Administration to answer various competing claims about the effects of the PPP. Critics accused the program of being administered as a partisan political tool for President Trump’s attempted reelection, as a corrupt slush fund for cronies of the Trump administration, and as an incompetent waste of money on undeserving recipients. We test these hypotheses to evaluate the distribution of funds and whether the disbursement materially suffered from politics, corruption, or waste. We find that the lending process not only suffered from high-profile failures, but it also failed to target the neediest areas, particularly early on. Other studies present mixed findings on whether the PPP successfully protected paychecks. The PPP’s greatest weakness was its failure to reach businesses unable to survive long enough to apply for or to receive loans.
Accordingly, we call for a start to the process of theorizing a model for future programs to fund economic crises, one that would avoid the worst mistakes of the PPP. In 2008 and 2020–2021, the US government engaged in massive transfers of money from the federal fisc to corporations and, on both occasions, the task was cobbled together during an emergency, with predictable failures and shortcomings. We consider successful economic responses and how they might guide more effective, fair, and efficient models for providing emergency economic funding in the future. Indeed, we may continue to need to address the financial devastation from COVID-19 itself for years to come
What is a “Case”?
Get PDFThis article interrogates the concept of a “case” in court, in an effort to clarify underlying concerns in debates over whether there is “too much” or “too little” litigation. One perspective on litigation takes a bottom-up view, examining the considerations and motives of disputing parties who file civil claims. This perspective includes theories about litigation and social structure, economics, dispute transformation, political participation, and psychology. An alternative top-down view examines litigation from the perspective of government, including its interest in dispute resolution, social control, and institutional capacities of courts. The article reviews and critiques existing literature on these perspectives and concludes with the importance of integrating them
Rachael K. Hinkle, Unintended Consequences. How the Publication Norm as a Tool of Compromise Reduces the Influence of Female and Minority Judges
Get PDFEven when women and people of color achieve positions of political power, that does not guarantee they will be able to wield the same amount of influence as similarly-situated white men. Institutional norms may combine with social constructions of difference to create a system in which power is distributed disproportionately. Such a pattern is evident in the U.S. Courts of Appeals. Benign procedural practices and laudable deliberative processes combine with divergent viewpoints generated by fundamentally different social experiences to create a system in which power is exercised unequally
Matthew Steilen: Canon, Anticanon, and Anti-canonization in Constitutional Law
Get PDFA “canon” is a set of writings generally regarded as the most authoritative, important, or well-executed of their kind. When law teachers speak of a “canon,” they usually mean a standard set of cases that forms the basis of an acceptable curriculum in their field. We teach our subjects from the canon. In my field, Constitutional Law, its principal members include Marbury, Gibbons, McCulloch, Youngstown, and Brow