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Procedural Posture and Social Choice
Get PDFLawyers, judges, and professors have always been interested in the way cases unfold procedurally—their procedural posture. To date, however, nobody has provided a generalized theoretical framework to explain how procedural posture influences outcomes. This Article uses social choice theory to fill that void, providing much-needed insight into the ways that trial court litigation is influenced by the procedural agenda. Social choice theory considers how individual preferences translate to the collective desire. It is a messy business. One key insight of social choice theory is that whoever controls the decision agenda can control the outcome. This Article conceptualizes trial court litigation within social choice theory, showing how the parties and the court each jostle for an agenda that will lead the collective to their preferred individual outcome, even if that outcome is simply “follow the law.” Using theoretical, exemplary, and empirical analysis, the Article shows a variety of ways that participants express preferences and control the agenda. Once viewed within social choice theory, it follows that procedural posture is a form of agenda control. Procedural posture as agenda control provides a payoff not previously found in the literature. It explains why procedure is so important, provides a nuanced way to consider procedural rules, and helps explain seemingly bad outcomes. Most important, it provides a new tool that commentators can use to evaluate intentional and unintentional bias in the system in a methodological way
Evolving Online Terrain in an Inert Legal Landscape: How Algorithms and AI Necessitate an Amendment of Section 230 of the Communications Decency Act
Get PDFThe consequences of online speech are undeniable, and yet, as the internet rapidly evolves, Section 230 of the Communications Decency Act (CDA 230), the federal law most concerned with internet regulation, stays the same. The pervasive presence of algorithms and artificial intelligence (AI), sophisticated technologies used by platforms to autonomously organize and facilitate the spread of online speech, vindicates a reassessment of CDA 230’s scope and applicability in the context of the modern internet. The internet’s impact on modern society is profound. In recent years, it has supported powerful grassroots organizing for social movements and allowed connection to distant loved ones during a global pandemic. The internet has also enabled new forms of abuse and harassment and catalyzed the spread of misinformation about American democracy, culminating in a historic insurrection. This movement-building and misinformation distribution were enabled by platforms, such as Facebook, YouTube, and Twitter, that rely on algorithms and AI. These tools have dramatically changed the internet since 1996, the year CDA 230 was enacted and subsequently “created the internet.” Employing algorithmic technology and AI, platforms now autonomously impact massive amounts of online speech, for example, by recommending user-developed content and enforcing community guidelines to moderate user-developed content. The legal analysis of liability should change in step with the internet’s changes, and platforms should be liable for the way their own algorithmic tools shape and control online speech. CDA 230’s robust immunity, however, as currently interpreted by the courts, makes it impossible to hold any platforms accountable for their harmful offline consequences. Indeed, courts have expansively interpreted CDA 230 immunity such that, as platforms have become more autonomous and impactful, it has grown to swallow any platform liability. This question—whether CDA 230’s immunity applies when a platform has employed algorithms and AI to impact the reach of user-developed content—has been litigated among several federal courts of appeal and is under consideration by the U.S. Supreme Court. Whether the Court answers in the negative or affirmative, several notable scholars have already offered meaningful and reasonable proposals to amend CDA 230 to account for platforms’ algorithmic impact on online speech. After surveying these proposals, this Note concludes that a new or reformed internet law should hold “Bad Samaritans” responsible for explicitly or knowingly perpetuating harmful content on its platform; be narrow enough in scope to regulate online speech, rather than all online activity; and add a flexible modern legal standard so that courts may more proficiently and consistently assess algorithmic harm on platforms. The internet is not hopeless. It is a remarkable innovation, and CDA 230 is crucial to its flourishing. But as the internet evolves and grows in sophistication, so should the law. This issue is too important to avoid action any longer
Teaching Dissents
Get PDFJudges’ perspectives and attitudes—and even their biases and assumptions—naturally find their way into legal analysis and decision-making. Yet this reality is something that the language of opinions tends to deny. Court opinions are often written to sound authoritative and sure, making legal decisions seem purely logical and channeling a tone of inevitability. The way that opinions are written tends to obscure the human aspects of legal decision-making and mask subjectivity. Indeed, as judges select and interpret facts and draw inferences, a judge’s written analysis often neglects to even acknowledge that this is occurring. In doing so, judges can hide the turning points in a case where they favor one viewpoint over another based on their own experiences and ideas about how the world works. The very presence of dissents challenges the myth of legal decision-making as objective and straight-forward; in speaking back to the court’s opinion, a dissent lays bare the complexities and reveals points of uncertainty in a case. In contrast to the voice of the majority, which often seeks to draw attention away from conflicts, dissents can show where choices were made in the decision-making process, and where others could have been made. In exposing the ambiguity in a case, dissents make room for alternative realities and experiences that were not raised by the majority and show where their consideration could have made a difference. This Article considers the role that dissenting opinions can play in preparing students to be critical readers of judicial texts who look beyond a court’s language to understand the law and situate court opinions in a broader social and cultural context. This Article provides practical suggestions about how law teaching can incorporate dissents—and other writings—to better prepare law students to engage deeply with the law and identify spaces where they can challenge existing precedent and advocate for positive change
Dethroning Langdell
Get PDFWhat if we are teaching law entirely wrong? We fill our syllabi with appellate court opinions—even though very little of what most attorneys do involves reading these opinions to learn foundational legal doctrine. We cold call on students—even though most circumstances in which attorneys talk about the law bear no resemblance to the classroom cold call. We give over significant parts of our class time to Socratic dialogue—even though attorney practice mostly involves writing and rewriting a variety of legal documents, collaborating in small groups, negotiating, client counseling, and many other things that Socratic dialogue doesn’t teach, model, or assess. This trio of teaching methods, which we inherited from Christopher Columbus Langdell, has many flaws. I identify a fundamental one: our overreliance on the case method, cold calls, and Socratic questioning incorrectly tells our students that their facility with these classroom methods is a measure of their lawyerly skill. That makes our pedagogy inauthentic. And so I propose this Authentic Pedagogy Test: law school pedagogy should accurately inform students about the likelihood that they will be successful and satisfied practicing attorneys. My thesis is not that we should abandon Langdell’s methods entirely. Rather, we should consider the opportunity costs attendant to allowing them to occupy so much of our teaching space, especially in the 1L year. If we gave over less space to these traditional teaching methods, we would free up room to do many other important things. We would have room to engage students with all of the different ways that lawyers use the law in their work and work product, particularly in transactional practice. We could focus our students’ attention on the work that attorneys do for clients, and what it means to represent a client. We could engage students who do their best work in collaboration with others or when given an opportunity to reflect before speaking—both things that attorneys regularly do in practice. And we would be able to provide opportunities for students to build and use expertise like attorneys, who often approach legal problems in a very different way than novices do. All of these are things that some law professors already incorporate into their doctrinal classes to some extent. But these methods still take a backseat to Langdell’s trio of case method, cold calling, and Socratic method. The Authentic Pedagogy Test suggests we can do better, and provides a guiding principle for how
Freedom to Pray, Not to Protest
Get PDFThe Supreme Court has never definitively ruled on the constitutionality of curfews that target political activity. Historically, curfews have been very difficult to challenge. They suffer from mootness issues because they tend to be temporary in nature, so associated harms are also temporary. Likely as a result, challenges to curfews more commonly take the form of a complaint regarding misconduct by a law enforcement officer during the curfew, rather than a facial challenge to the curfew itself. Further, courts are typically deferential to state claims of police power, which provides the authority for state and local governments to take action on public health and safety related issues. In stark contrast, the Supreme Court took on COVID-19-related restrictions on gathering in a significant way, especially those that had some kind of impact on religious activity, like occupancy restrictions that included limits on houses of worship. And the treatment of those challenges, starting with the appointment and confirmation of Justice Barrett, provided a potential pathway forward for people seeking to challenge curfews. In Tandon v. Newsom, the Court articulated new precedent for interpreting government restrictions that impact religious activity. Up to this point, the practice of evaluating restrictions on religious behavior involved an application of strict scrutiny, but that standard was reserved for regulations that targeted religious behavior. A content-neutral regulation that had incidental impacts on religious activity was deemed acceptable, so long as activity treated more leniently was sufficiently dissimilar. Tandon calls for courts to apply strict scrutiny to generally-applicable regulations with incidental impacts on religious activity. Additionally, a termination or modification of the challenged regulation does not moot a challenge if the Court finds a continued threat that the restrictions will be reinstated. Aside from being generally a higher standard of evaluation, the fact that Tandon provides a relatively broad opportunity to avoid a mootness challenge is significant for a class of restrictions that is so temporary in nature, like curfews. Identifying a more effective way to challenge politically-motivated curfews is important for two major reasons: (1) these curfews limit the First Amendment rights of speech, assembly, and petitioning the government, which is inherently harmful; and (2) the application of curfews throughout United States history is racialized. Government officials used curfews to target enslaved and free Black people in the pre-Revolution and pre-Civil War eras, civil rights era protestors, and modern-day Black Lives Matter/anti-police brutality protestors. The typical pattern seen time after time is this: The white majority oppresses the Black population. The white majority then stokes fear of racial uprisings and revolts. Governments then use these racist fears as pretext for curfews that cut off protest responses—effectively taking away peoples’ constitutional rights. May and June of 2020 followed this same pattern. If we take as a given that this pattern will continue, it is crucial to devise a new legal strategy to break the pattern and allow sustained anti-racist protest without the threat of overzealous curfews. This Note see promise in the Tandon approach because, if the Court is open to a higher standard of review for restrictions on religious activity, then a compelling argument can be made that the higher standard should be applied to other forms of protected activity
Textualism and the Administrative Procedure Act
Get PDFIn recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits. We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning. For that matter, we do not address whether a more limited textualist approach to statutory interpretation might be appropriate for statutes other than the APA. But for judges and scholars inclined to apply textualist reasoning to questions of APA interpretation, our goal is to refute claims that adhering to textualism requires rejecting many or even most longstanding interpretations of APA rulemaking requirements. More normatively, we are concerned that a version of textualism that reduces the APA’s provisions, one by one, to their narrowest reading risks eroding APA rulemaking procedures to a degree that cannot possibly be reconciled with congressional intent.
In Part I, we briefly elaborate the arguable conceptual challenges of APA interpretation using textualist methodology. In Part II, we examine a few key instances in which the Supreme Court has contemplated the APA’s text. Taking the Court’s trend toward a stricter or more limited textualism seriously, in Part III, we highlight several longstanding interpretations of the APA that could be in peril under that version of textualism. We also offer alternative textualist constructions of the APA’s provisions that support those same longstanding interpretations. Given space limitations, we focus principally on provisions associated with agency rulemaking and judicial review thereof, leaving other APA interpretive questions for another day. Based on that analysis, we offer concluding thoughts that a more flexible textualism is more appropriate when interpreting the APA
Appointed or Elected: How Justices on Elected State Supreme Courts Are Actually Selected
Get PDFDuring at least part of the post–World War II period, the constitutions of thirty-six states called for the popular election of the judges of the states’ highest courts. In practice, only slightly more than half of those judges (excluding strictly interim appointees) initially obtained their positions by election. This article examines the likelihood of initial election in actual practice, how it has varied over time, and various factors that might be related to election versus appointment (e.g., type of election, mandatory retirement). It concludes that state norms play a substantial role in determining patterns of actual selection
AI Tools for Lawyers: A Practical Guide
Get PDFThis Article provides practical and specific guidance on how to effectively use AI large language models (LLMs), like GPT-4, Bing Chat, and Bard, in legal research and writing. Focusing on GPT-4—the most advanced LLM that is widely available at the time of this writing—it emphasizes that lawyers can use traditional legal skills to refine and verify LLM legal analysis. In the process, lawyers and law students can effectively turn freely available LLMs into highly productive personal legal assistants
