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The Implications of Section 230 for Black Communities
Get PDFSection 230 of the Communications Decency Act generally immunizes online platforms such as Facebook, YouTube, Amazon, and Uber from liability for third-party user content (for example, posts, comments, and videos) and for moderation of that content. This Article addresses an important issue overlooked by both defenders and critics of Section 230: the implications of the law and proposed reforms for Black communities in particular. By relieving tech platforms of most legal liability for third-party content, Section 230 helps facilitate Black social activism, entrepreneurship, and artistic creativity. Section 230 also relieves platforms of most legal liability for content moderation, which boosts platforms’ freedom to remove or downrank unlawful activity, as well as an array of “lawful but awful” content that government cannot constitutionally restrict—such as hate speech, white supremacy organizing, medical disinformation, and political disinformation. However, platforms’ overly broad interpretations of Section 230 also incentivize platforms to allow unlawful activity directed at Black communities (such as harassment, white supremacist violence, voter intimidation, and housing and employment discrimination) and to prevent legal recourse when platforms erroneously downrank Black content. These insights provide factors that can help policymakers assess whether proposed Section 230 reforms—such as notice-and-takedown, content neutrality, and carve-outs to immunity for civil rights laws, algorithmic recommendations, or advertisements—will benefit or harm Black communities
Law and Equity on Appeal
Get PDFMost lawyers know that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity, but fewer are familiar with the development of federal appellate procedure. Here too there is a story of the merger of two distinct systems. At common law, a reviewing court examined the record for errors of law after the final trial judgment. In the equity tradition, an appeal was a rehearing of the law and the facts that aimed at achieving justice and did not need to await a final judgment. Unlike the story of federal trial procedure, in which we can identify a date of merger (1938, with the Federal Rules) and a winning side (equity), the story of federal appellate procedure laid out in this Article reveals a merger that occurred fitfully over two centuries and yielded a blended system that incorporates important aspects of both traditions.
In addition to revealing the complicated roots and hybrid character of current federal appellate practice, this Article aims to show that an appreciation of the history can explain some current pressures in the system and open our minds to the possibility of reform. Some odd developments in the appellate courts can be understood as suppressed features of equity practice reasserting themselves. With regard to the potential reforms, the suggestion is not that we resurrect the bifurcated procedure of the past. Nonetheless, there are circumstances in which today’s federal courts could benefit from recovering features of the equitable model of appeal
Extraterritoriality\u27s Empire: How Self-Determination Limits Extraterritorial Lawmaking
Get PDFIn recent years, a growing number of countries have courted controversy by regulating activities outside their borders. They have used extraterritorial lawmaking to cultivate competitive global markets, strengthen or weaken data privacy, combat foreign terrorism and military aggression, promote human rights abroad, and suppress political dissent at home. This Article explores whether extraterritorial lawmaking can be reconciled with the right to self-determination under international law. I argue that the right to self-determination entitles each national polity to determine the laws and institutions by which it is governed within its territory. Extraterritorial lawmaking violates the right to self-determination when it subjects peoples to legal norms they have not freely endorsed. This insight calls for a paradigm shift in how international lawyers evaluate extraterritoriality, with broad ramifications for legal theory and practice
Redressing Judicial Misbehavior: An Integrated Approach to Judicial Immunity
Get PDFImmunities generate intense public interest and controversy. Whether it is the sweeping presidential immunity that former President Trump has claimed or the qualified immunity that rogue police invoke to evade financial responsibility for their brutality, immunities stand as a highly contested aspect of the American legal system. Judicial immunity incites similar controversy. American judges possess absolute immunity from civil suits for their judicial acts, so victims are barred from seeking civil compensation, even against judges who engage in purposeful or malicious misconduct from the bench. For decades scholars have sought to curtail absolute judicial immunity, but they have overlooked a significant distinction: whereas judges have absolute immunity against civil lawsuits, they have no immunity whatsoever against criminal prosecutions. By wholly ignoring potential criminal liability for wrongful judicial acts, the scholarly critiques of absolute judicial immunity and their proposed reforms miss their mark. This Article provides a comprehensive, holistic exploration of judicial immunity in the context of all lawsuits — civil and criminal — and it proposes reforms that will advance the compelling goals the doctrine is intended to serve. While acknowledging key differences between civil and criminal law that impact the desirability of judicial immunity, this Article concludes that our current binary system of absolute immunity for civil suits and zero immunity for criminal prosecutions is excessively formalistic and misaligns with the important policy goals underlying the doctrine. Consequently, the Article proposes a criminal-law limitation on civil judicial immunity that will (1) more effectively advance the goals that immunity is designed to achieve; (2) harmonize criminal law and civil law immunity rules into a more coherent whole; and (3) avoid the practical difficulties that have doomed previous reform efforts. This Article’s proposals will permit judicial immunity to operate in an integrated fashion with reduced costs and enhanced ability to serve the ends for which it was created
Critical Data Theory
Get PDFCritical Data Theory examines the role of AI and algorithmic decisionmaking at its intersection with the law. This theory aims to deconstruct the impact of AI in law and policy contexts. The tools of AI and automated systems allow for legal, scientific, socioeconomic, and political hierarchies of power that can profitably be interrogated with critical theory. While the broader umbrella of critical theory features prominently in the work of surveillance scholars, legal scholars can also deploy criticality analyses to examine surveillance and privacy law challenges, particularly in an examination of how AI and other emerging technologies have been expanded in law enforcement practices, and homeland and national security programs. To take one example of AI’s impact, this Article argues that mass incarceration’s technological interdependencies and trajectories can be better conceptualized through Critical Data Theory. This Article proposes that the theory can help assess the computational and AI impact of technological developments that may exacerbate mass incarceration and limit criminal procedure rights
AI-Based Evidence in Criminal Trials?
Get PDFSmart devices are increasingly the origin of critical criminal case data. The importance of such data, especially data generated when using modern automobiles, is likely to become even more important as increasingly complex methods of machine learning lead to AI-based evidence being autonomously generated by devices. This article reviews the admissibility of such evidence from both American and German perspectives. As a result of this comparative approach, the authors conclude that American evidence law could be improved by borrowing aspects of the expert testimony approaches used in Germany’s “inquisitorial” court system
Creating a Racialized Liminal Status: The 1790 Act and Interstitial Citizenship
Get PDFThis Comment began with De La Ysla’s case to highlight the political status that Filipinos held when the Philippines was a U.S. territory. This Comment argues that this status, which a court would later describe as a “hybrid status ... the so-called ‘non-citizen national,’” was a racialized liminal political status with roots in the 1790 Naturalization Act (1790 Act). Professors Jack Chin and Paul Finkelman claim that the 1790 Act played a critical role in shaping “the very composition of the people of the United States” by including the “free white person” clause in the country’s first naturalization law. One of the goals of Congress in passing this law, as Chin and Finkelman contend, was to intentionally encourage the immigration of primarily White immigrants and ensure that the country would be a White nation. The 1790 Act did so not only by explicitly restricting the group of immigrants who were deemed racially eligible to become citizens but by providing the “foundation for a variety of other discriminatory laws” as well.
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In Part I, I briefly situate the arguments presented in this Comment within the liminality literature and the work of other legal scholars who have theorized liminality in immigration law. I have previously used liminality as a concept to describe noncitizen nationals as liminal or interstitial citizens and explored how this status disrupts the framing of citizenship along a citizen or noncitizen binary paradigm. I build on this prior work by connecting interstitial citizenship to the 1790 Act.
In particular, as I claim in Part II, the 1790 Act laid the foundation for the denial of citizenship to Filipinos at the turn of the twentieth century, which led to their interstitial political status. Congressional remarks surrounding the Treaty of Paris, which ended the Spanish American War, demonstrate the overarching sentiments against extending citizenship to residents of the Philippines, Puerto Rico, and Guam. Based on fears of millions of people of color acquiring U.S. citizenship, Congress subsequently passed laws that created a new political status that was liminal in nature. This in-between status would subsequently receive the support of the Supreme Court in the Insular Cases.
Part III discusses the role that the 1790 Act played in naturalization cases filed by Filipinos residing in the United States. As that Part explains, courts interpreted subsequent amendments to the 1790 Act as indicative of Congress’s goal to continue to limit naturalization based on race and, in so doing, ensured that Filipinos would never be able to leave their racialized liminal status.
The final Section explores the implications of this colonial history for Chin and Finkelman’s understanding of how the 1790 Act shaped the United States as a White nation.
This abstract has been taken from the author\u27s introduction
Paradoxical Citizenship
Get PDFIn their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a powerful case that the Naturalization Act of 1790 is a “super-statute” that has shaped not only U.S. immigration law and policy, but also America’s conception of itself as a “White nation.”
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This Comment explores the conflict between the Naturalization Act’s racial restrictions on citizenship (and its proponents’ vision of the United States as a White nation) and the Fourteenth Amendment’s Citizenship Clause (and its proponents’ vision of the United States as a multiracial nation). In important and interesting ways, the Citizenship Clause complicates the story Chin and Finkelman are telling. America has always been a bundle of contradictions, with a paradoxical view of itself as a White European nation on the one hand and a nation of immigrants that eschews bloodline and caste on the other. Those contradictions are on vivid display in the interplay between America’s worst impulses, as exhibited by the White supremacist naturalization law, and its better angels, displayed in the multiracial promise of birthright citizenship.
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Part I of this Comment describes how the Citizenship Clause bestowed universal citizenship that extended beyond the newly freed slaves to the children of non-White immigrants. Birthright citizenship provides a counterpoint to the racial bars in the Naturalization Act, demonstrating that—if only fleetingly—the Reconstruction Congress embraced equality for all, including for children of non-White immigrants. Part II describes how the contradiction between the racially exclusive Naturalization Act and the universal Citizenship Clause played out in politics, law, and immigration policy in the following years. For decades, the government tried to reconcile the conflict between these two laws by denying birthright citizenship to non-Whites. Not until 1952 did the pendulum swing the other way, resolving this legal anomaly by eliminating all racial bars to naturalization.
This abstract has been taken from the author\u27s introduction
A Mosaic Approach for Challenging SEC Crypto Regulation: The Major Questions Doctrine and Staff Accounting Bulletin 121
Get PDFThe regulatory scheme for the crypto industry can be described as uncertain, at best. The lack of regulatory clarity and agency overreliance on enforcement actions in the place of proper rulemaking will stifle the industry in U.S. markets. The SEC’s haphazard regulatory approach has created more questions and uncertainty. Staff Accounting Bulletin 121 (“SAB 121”) is a prime example of how the SEC’s desperate grasp for regulatory authority implicates the major questions doctrine and the Administrative Procedures Act. This Article analyzes current crypto litigation alongside SAB 121. It identifies a pattern of circumventing the Administrative Procedures Act and violations of the major questions doctrine in crypto actions taken by the SEC. This Article concludes that the current regulatory approach will likely cause irrevocable harm to the crypto industry and procedures under the Administrative Procedures Act. Judicial intervention is required, but piecemeal litigations pose a further risk to the industry. Courts should review and understand the entire regulatory scheme, not just the coin or regulation at issue, to fully appreciate the major questions doctrine and procedural implications posed by agencies in their rushed and ineffective approach to regulating the crypto industry