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Intellectual Property in E-Commerce Retail Arbitrage: An Analysis of the Legality of Using Intellectual Property in Drop-Shipping
Get PDFSupreme Court Legitimacy: A Turn to Constitutional Practice
Get PDFCommentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of the answer turns on legal craft—identifying the tools available to a Justice as she decides individual cases. However, part of it also requires adopting a regime perspective— ensuring that a Justice’s actions meet the challenges of her own constitutional moment. In my account, Chief Justice Roberts takes centerstage. Beginning with legal craft, I analyze the tools that Roberts employs to preserve the Court’s legitimacy in concrete cases—namely, coalition building, calls for action by the elected branches, incrementalism, charity for the opposing side, triangulating between constitutional extremes, and promoting a vision of institutional humility. From there, I adopt a regime perspective, charting three future paths for the Roberts Court—each with its own set of challenges for the Justices as they seek to preserve the Court’s institutional legitimacy
America the Divisible: Local Taxes and the SALT Subsidy
Get PDFThe state and local tax (SALT) deduction subsidizes localities in a way that has not fully been appreciated by policymakers, practitioners, or academics. While the state portion of the SALT deduction captures headlines and receives significant attention from academics, the local portion has been overlooked. Local taxes introduce concerns that are not relevant to state-levied taxes. The local tax deduction provides a greater subsidy, per capita, for wealthy localities than it does for economically heterogeneous or less wealthy localities. This Note is the first to quantify the subsidy received by localities through the SALT deduction. This Note contributes to the literature by (1) examining the overlooked local portion of the SALT deduction, (2) quantifying the SALT subsidy received by localities, and (3) noting the impact of the Tax Cuts and Jobs Act on the SALT subsidy
The Internet Immunity Escape Hatch
Get PDFInternet immunity doctrine is broken, and Congress is helpless. Under Section 230 of the Communications Decency Act of 1996, online entities are absolutely immune from lawsuits related to content authored by third parties. The law has been essential to the internet’s development over the last twenty years, but it has not kept pace with the times and is now deeply flawed. Democrats demand accountability for online misinformation. Republicans decry politically motivated censorship. And all have come together to criticize Section 230’s protection of bad-actor websites. The law’s defects have put it at the center of public debate, with more than two dozen bills introduced in Congress in the last year alone. Despite widespread agreement on basic principles, however, legislative action is unlikely. Congress is deadlocked, unable to overcome political polarization and keep pace with technological change. Rather than add to the sizeable literature proposing changes to the law, this Article asks a different question—how to achieve meaningful reform despite a decades-old statute and a Congress unable to act. Even without fresh legislation, reform is possible via an unlikely source: the Section 230 internet immunity statute that is already on the books. Because of its extreme breadth, Section 230 grants significant interpretive authority to the state and federal courts charged with applying the statute. This Article shows how, without any change to the statute, courts could press forward with the very reforms on which Congress has been unable to act
The Territorial and District Representation Amendment: A Proposal
Get PDFThis article will propose and explain a draft amendment to the United States Constitution that would secure an intermediate degree of political representation for Americans living in U.S. territories. While concerned principally with U.S. territories, the amendment would also address Congressional representation for the District of Columbia
Algorithmic Governance from the Bottom Up
Get PDFArtificial intelligence and machine learning are both a blessing and a curse for governance. In theory, algorithmic governance makes government more efficient, more accurate, and more fair. But the emergence of automation in governance also rests on public-private collaborations that expand both public and private power, aggravate transparency and accountability gaps, and create significant obstacles for those seeking algorithmic justice. In response, a nascent body of law proposes technocratic policy changes to foster algorithmic accountability, ethics, and transparency.
This Article examines an alternative vision of algorithmic governance, one advanced primarily by social and labor movements instead of technocrats and firms. The use of algorithmic governance in increasingly high-stakes settings has generated an outpouring of activism, advocacy, and resistance. This mobilization draws on the same concerns that animate budding policy responses. But social and labor movements offer an alternative source of constraints on algorithmic governance: direct resistance from the bottom up. These movements confront head-on the entanglement of economic power, racial hierarchy, and government surveillance.
Using three case studies, this Article explores how tech workers and social movements are resisting and mobilizing against technologies that expand surveillance and funnel wealth to the private sector. Each case study illustrates how the intermingling of state and private power has required movements to engage both within and outside firms to counteract the growing appeal of automation. Yet the dominant approaches to regulating the government’s uses of technology continue to afford a privileged role to private firms and elite institutions, sidelining movement demands. The fundamental challenge posed by these movements will be whether — and how — law and policy can accommodate demands for bottom-up control. This Article sketches a new vision for algorithmic accountability, with a more vibrant role for workers and for the public in determining how firms and government institutions work together
