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Mining Association Position Statement on Indigenous Peoples: Respect for Their Rights Advanced, with Some Shortcomings
Get PDFFrom Gods to Google
Get PDFThe First Amendment has become a significant barrier to sensible technology regulation. The conventional explanation for this is the Court\u27s deregulatory turn in free-speech law. But the Lochnerization story is incomplete. The Court\u27s profound solicitude for religious speakers plays a central role in the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend to technology firms. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies.
This Feature draws the doctrinal through line from gods to Google. We first sketch the basic contours of today\u27s technology regulation and explain why it is vulnerable to First Amendment challenge. We then give an overview of free-speech case law that develops what we call the oppressed-speaker paradigm. The Roberts Court has been motivated not just by free-market zeal but also by the trope of a persecuted religious minority standing fast in the face of a domineering and majoritarian regulator.
We pay special attention to 303 Creative LLC v. Elenis, identifying several doctrinal defects likely to have an impact on technology regulation. Technology firms have wasted no time in relying on 303 Creative to challenge a variety of new laws—most notably in last Term\u27s Moody v. NetChoice, LLC, which involved free-speech challenges to the regulation of internet platforms. The Court in Moody, however, sidestepped or ignored the most serious implications of 303 Creative.
It may be tempting to think the Court could reconcile the two cases by distinguishing religious speakers from platforms. But doing so would impermissibly enshrine viewpoint and speaker discrimination into free-speech law. The Court thus confronts a conundrum of its own making: either (1) apply the principles developed for religious speakers to new technologies and expose a wide range of technology policy tools to constitutional attack, or (2) create special rules for religious speakers, which would violate the Court\u27s own notions about viewpoint and speaker neutrality. A principled resolution of this conflict cannot be that free-speech law affords special protection for religious speakers. The Roberts Court must find legitimate and coherent limiting principles for the First Amendment landmines it has laid
Anchoring Digital Sovereignty
Get PDFFor a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet\u27s infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world\u27s democracies to keep the Internet free, open, and global; yet it is not the only way that international law knows to define the powers of a state.
Drawing from the law of the sea, this Article argues that we should anchor the nature of state authority in cyberspace in the limited sovereign rights that coastal states possess in the waters off their shores. Unlike the plenary powers that sovereignty vests in states over their entire land territory, a coastal state\u27s sovereign rights weaken the further one goes out to sea, and they are subject to the rights of other states (and of their nationals) to engage in certain peaceful uses of such waters. By redefining state authority over cyberspace in terms of layers of sovereign rights that are subject to the digital rights of others, states can enact legitimate online regulations within international legal constraints that preserve the Internet’s free, open, and global character
Ghosting the Crowd
Get PDFCrowdfunded companies are legally bound to provide investors with an annual report--but most don\u27t. This ghosting of the crowd violates federal securities laws and raises the risk of opportunism by entrepreneurs, who are more prone to misbehave if no one is watching. Most ominously, it threatens the very viability of the investment crowdfunding market, as investors who are ghosted by one company are less likely to invest in another.
This Article reports on the embarrassing record of noncompliance with the annual report rule imposed by the Jumpstart Our Business Startups ( JOBS ) Act of 2012 and Regulation Crowdfunding, and proposes a simple solution: Crowdfunding platforms should withhold one percent of the capital raised by an issuer and only release it once the company files its first annual report. Due to competitive pressure, however, any given crowdfunding platform is unlikely to impose such a rule on its own; Securities and Exchange Commission ( SEC ) action is needed. This Article accordingly concludes with a proposed regulation readymade for the SEC to adopt
Unwritten Administrative Law and the Regulatory Last Mile
No full textPrograms like the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act are ostensibly federal. But once they change hands from national to subnational, they’re implemented through state statutes and regulations, not direct enforcement of the United States Code. As a result, state, not federal, administrative law governs in many bread-and-butter situations. Through a comprehensive fifty-state survey, I find that this body of law is largely unwritten.
Yet cooperative federalism relies on the capacity of state institutions to function. And equally critical is the existence of law that shepherds a program from congressional subcommittee to the very ends—the last mile—of state implementation. Throughout the country, however, questions of when an agency can make policy through adjudication, what counts as guidance versus a rule, which standard governs the revocation of a rule as compared to initial promulgation, and what, if any, restrictions there are when an agency refuses to promulgate a rule, have often gone unanswered by state supreme courts and state legislatures. To compound matters, states rarely publish anything other than formal regulations.
The consequence is that the last mile of cooperative federalism—the part that decides who receives a permit, when and if enforcement actions are taken, and where agencies make policy—is radically underspecified. In other words, because federal statutes are implemented through state law, federal law is unwritten, too. Untangling and identifying these patterns demonstrates that both the virtues of administration, such as notice and reason-giving, and the benefits of federalism, like participation and experimentation, are diminished when national programs are executed through undeveloped state law
