Deplatforming

Deplatforming in the technology sector is hotly debated, and at times may even seem unprecedented. In recent years, scholars, commentators, jurists, and lawmakers have focused on the possibility of treating social-media platforms as common carriers or public utilities, implying that the imposition of a duty to serve the public would restrict them from deplatforming individuals and content. But, in American law, the duty to serve all comers was never absolute. In fact, the question of whether and how to deplatform-—to exclude content, individuals, or businesses from critical services—- has been commonly and regularly debated throughout American history. In the common law and the major infrastructural and utility sectors-—transportation, communications, energy, and banking-—American law has long provided rules and procedures for when and how to deplatform. This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. Historically, the American tradition has not been one of either an absolute duty to serve or an absolute right to exclude. Rather, it has been one of reasonable deplatforming—- of balancing the duties to serve and the need to, in limited and justifiable cases, exclude. Theoretically, deplatforming raises common questions across sectors: Who deplatforms? What is deplatformed? When does deplatforming occur? What are permissible reasons for deplatforming? How should deplatforming take place? The Article uses the history of deplatforming to identify these and other questions, and to show how American law has answered them. The history and theory of deplatforming shows that the tension between service and exclusion is an endemic issue for common carriers, utilities, and other infrastructural services—-including contemporary technology platforms. This Article considers ways in which past deplatforming practices can inform current debates over the public and private governance of technology platforms

Ecolabeling in the Multinational Mining Industry: A Method toward Environmental Sustainability

The international mining industry\u27s environmental impact is not new. However, with the rise of international scrutiny on climate change and global warming, what the industry can do to lessen its impact is changing. Consumers are demanding stronger commitments to the environment from producers, and producers are therefore requiring stronger commitments from their suppliers. One such commitment the extractive industry can adhere to is implementing an ecolabeling regime for open pit mines mining critical minerals for consumer products. Ecolabels signal to customers that the environment is a priority for companies. However, with an ecolabel comes trade implications and concerns about accuracy. A nongovernmental organization should implement the ecolabeling regime to ensure credibility and monitoring while avoiding most of the concerns relating to restrictions on trade. This guarantees the mining industry does not just pay lip service to environmental sustainability

Reliance Interests in Statutory and Constitutional Interpretation

People and companies rely on public law when they plan their activities; society relies on legal entitlements when it adapts to new technology, economic conditions, and social groups; legislators, administrators, and judges rely on settled law when they pass, implement, and interpret statutes (respectively). Such private, societal, and public “reliance interests” are the “dark matter” of America’s law of interpretation. They underwrite most interpretive doctrine, and their perceived force broadly and deeply affects the application of doctrine. Reliance interests anchor the constitutional bias in favor of interpretive continuity, and they provide guardrails for the leading theories of interpretation-—namely-—textualism or original public meaning, legal processor purposivism, and cost-benefit economic theory. Because reliance interests themselves evolve, they can also provide an orderly process for updating old norms, under whatever the predominant theory of interpretation might be. Nonetheless, reliance interests do not always prevail. In recent statutory and constitutional decisions, the Roberts Court has applied traditional reliance interests selectively-—a signal that the Court is introducing a regime change that may scramble reliance interests as massively as the New Deal and Brown Courts did in the last century. Without a strong electoral endorsement of the emerging new regime, this is risky for an institution whose authority depends on its rule of law credibility, and it is doubtful that the Roberts Court will be as successful in overcoming or resetting reliance interests as the New Deal and Brown Courts

The Death of the Legal Subject

The law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child. Relative to other areas of law, criminal law is oversaturated with prediction. Almost every decision node in the criminal justice system demands a prediction of individual behavior: does the accused present a flight risk, or a danger to the public (pre-trial detention); is the defendant likely to recidivate (sentencing); and will the defendant successfully reenter society (parole)? Increasingly, these predictions are made by algorithms, many of which display racial bias, and are hidden from public view. Existing scholarship has focused on de-biasing and disclosing algorithmic models, but this Article argues that even a transparent and unbiased algorithm may undermine the epistemic legitimacy of a judicial decision. Law has historically generated truth claims through discursive and dialogic practices, using shared linguistic tools, in an environment characterized by proximity and reciprocity. In contrast, the truth claims of data science are generated from data processing of such scale and complexity that it is not commensurable with, or reversible to, human reasoning. Data science excludes the individual from the production of knowledge about themselves on the basis that “unmediated” behavioral data (not self-reported or otherwise subject to conscious manipulation by the data subject) offers unrivaled predictive accuracy. Accordingly, data science discounts the first-person view of reality that has traditionally underwritten legal processes of truth-making, such as individual testimony. As judges turn to algorithms to guide their decision making, knowledge about the legal subject is increasingly algorithmically produced. Statistical predictions about the legal subject displace qualitative knowledge about their intentions, motivations, and moral capabilities. The reasons why a particular defendant might refrain from recidivism, for example, become less important than the statistical features they share with historical recidivists. This displacement of individual knowledge with algorithmic predictions diminishes the participation of the legal subject in the epistemic processes that determine their fundamental liberties. This produces the death of the legal subject, or the emergence of new, algorithmic practices of signification that no longer require the input of the underlying individual

After Action: The U.S. Drone Program\u27s Expansion of International Law Justification for Use of Force against Imminent Threats

Until the 2000s, the United States\u27 attempts to shift international legal norms on imminence to allow for greater use of armed force abroad were largely unsuccessful. In the past two decades, however, drone use and careful legal gamesmanship by U.S. officials have opened an unprecedentedly broad allowance for use of force in imminent self-defense. As drones become increasingly available to state and non-state actors, this permissive regime poses a threat to national and international security. This Note analyzes two decades of international customary law formation around drone use outside of armed conflict through a new lens post U.S.-withdrawal of Afghanistan. It traces the history of the imminence exception to Article 2(4)\u27s prohibition on use of force, U.S. attempts to expand that exception, and the history of drone use outside of armed conflict. It then analyzes recent opinio juris and state practice to point to the adoption of elongated imminence into customary international law. Finally, it identifies some of the dangers of the current permissive paradigm and presents opportunities for U.S. leadership in forming a more advantageous and secure definition of imminence

Rationing Access

Protection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources-—national parks, fisheries, heritage sites, and fragile ecosystems-—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on a variety of economic, informational, and technological techniques that can be readily adjusted to changing circumstances. By focusing on the point of entry, access rationing prevents harm to natural resources from arising ab initio. Furthermore, access rationing offers the twin virtues of simplicity and flexibility. Finally, access rationing has the additional advantage of transparency, as it allows members of the public and nonprofit organizations to monitor the performance of regulatory agencies. Drawing on a myriad of real-world examples, the present Essay is the first to provide a comprehensive theory of access-based measures for governing the commons

Against Political Theory in Constitutional Interpretation

Judges and academics have long relied on the work of a small number of Enlightenment political theorists-—particularly Locke, Montesquieu, and Blackstone—-to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the Framers did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the Framers favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory

Book Review: Grease or Grit?

Grease or Grit? International Case Studies of Occupational Licensing and Its Effects on Efficiency and Quality. Edited by Morris M. Kleiner and Maria Koumenta. Kalamazoo, MI: W.E. Upjohn Institute for Employment Research, 2022. 174 pp. ISBN 9780880996860, $20 (paperback); ISBN 9780880996877,$9.99 (e-book). Occupational licensing remains poorly understood. This is true even after decades of illuminating empirical work by Morris Kleiner, one of the authors of Grease or Grit? International Case Studies of Occupational Licensing and Its Effects on Efficiency and Quality, showing that licensing—a government-granted right to perform a particular service—raises prices to consumers, restricts entry into an occupation, reduces interstate mobility of the workforce, and contributes to income inequality. And it remains true after economists studying the phenomenon from other jurisdictions, including his British co-author Maria Koumenta, have shown the same outcomes. One important missing piece of the licensing puzzle is that we know little about licensing’s payoff. It is not enough to criticize occupational licensing as costly to consumers and workers if we do not know whether its purported benefits, such as safer, better, and more professional service, are worth it. This side of the cost-benefit analysis of professional licensing has been lacking because unlike wages, prices, and employment, service quality is almost impossible to measure objectively. How can researchers code for good legal advice? Which architects make more beautiful buildings? How can a physician’s bedside manner—or surgical competence, for that matter—be reduced to a numerical score and empirically evaluated? Without hard evidence about quality, critics of licensing have few concrete measures to point to when proponents of licensure (usually the professions themselves) seek regulation that in theory (and maybe only in theory) leads to better professional service

Creating a People-First Court Data Framework

Most court data are maintained--and most empirical court research is conducted--from the institutional vantage point of the courts. Using the case as the common unit of measurement, data-driven court research typically focuses on metrics such as the size of court dockets, the speed of case processing, judicial decision-making within cases, and the frequency of case events occurring within or resulting from the court system. This Article sets forth a methodological framework for reconceptualizing and restructuring court data as people-first -centered not on the perspective of courts as institutions but on the people who interact with the court system. We reorganize case-level data around the individual, identifying and analyzing the touchpoints that individuals have had over time with a range of different courts. In doing so, we invoke language as a signaling device to suggest a different, more intentional way to think about courts and the way we study their structure, processes, and impact. The pilot research study that serves as the foundation for this Article is the first of its kind to apply a people-first approach to a data set that includes both criminal and civil state court records drawn from a random sample of 885 people in Fulton County, Georgia, between 2016 and 2020. Our methodology and findings provide a new perspective on the interactions between individuals and the courts and generate important new data relevant to a range of research areas. This approach and its results also represent a key step forward in expanding the application of a people-first approach to decentralized court systems, including those at the state and local levels. In taking this step, we empower and encourage researchers and policymakers at all levels to center those who experience the impact of court systems rather than focusing exclusively on the systems themselves

(E)racing Speech in School

Speech on race and racism in our nation’s public schools is under attack for partisan gain. The Free Speech Clause of the First Amendment teaches a lot about the wisdom and legality of laws that chill such speech in the classroom. But more importantly, a First Amendment analysis of these laws reveals profound insights about the health and meaning of our free speech doctrine. Through a First Amendment analysis of “anti-critical race theory” laws, this essay illuminates the first principles of free speech law. Specifically, it shows that the First Amendment offers little refuge to teachers or parents looking to overturn anti-critical race theory laws, but often will protect students’ right to receive the information these laws chill. The deeper insight of these conclusions is that they rest on the same, sound constitutional reasoning: that the First Amendment works to protect equal political participation in democratic self-governance, as part of the Constitution’s larger foundational goal of securing equal popular sovereignty. The First Amendment implications of these speech-chilling laws thus illustrate that, in service of democratic governance, the free speech right (1) leaves substantial room for government regulation of speech to protect safe and effective public services, including public school education; (2) rejects paternalism in favor of fostering individual enlightenment and growth in service of effective democratic self-governance; and (3) is primarily designed to protect the free flow of information so that citizens make good choices in their social, political, and economic lives. This analysis emphasizes that the First Amendment protects citizens’ right to receive information critical to fulfilling and benefitting from their role as citizens. Anti-CRT laws do not run afoul of this principle—and in some ways they actually advance it—when it comes to regulating teachers’ and parents’ speech. The laws do, however, hinder democratic governance as applied to students’ rights to receive information critical to their ability to engage as full citizens. Finally, this conclusion illustrates how seemingly disparate areas of free speech law all rest on a common anti-orthodoxy principle that serves to tie First Amendment law together and advance full and equal democratic participation