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    1195 research outputs found

    Truth Bounties: A Market Solution to Fake News

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    False information poses a threat to individuals, groups, and society. Many people struggle to judge the veracity of the information around them, whether that information travels through newspapers, talk radio, TV, or social media. Concerned with the spread of misinformation and harmful falsehoods, much of the policy, popular, and scholarly conversation today revolves around proposals to expand the regulation of individuals, platforms, and the media. While more regulation may seem inevitable, it faces constitutional and political hurdles. Furthermore, regulation can have undesirable side effects and be ripe for abuse by powerful actors, public and private. This Article presents an alternative for fighting misinformation that avoids many pitfalls of regulation: truth bounties. We develop a contractual mechanism that would enable individuals, media, and others to pledge money to support the credibility of their communications. Any person could claim the bounty by presenting evidence of the falsity of the communication before a dedicated body of private arbitrators. Under the system we envision, anyone consuming information on the internet would know immediately ifa given communication had a bounty attached, whether the communication had been challenged, and whether the challenge succeeded orfailed. As John Stuart Mill recognized, we can trust our grasp of the truth only by putting it to the fire of challenge. Truth bounties open the challenge to all

    The Credibility Effect: Defamation Law and Audiences

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    What should be the legal response to false statements? In the context of defamation law, courts try to set a standard that balances the interests of speakers and their potential targets. This article empirically demonstrates an unappreciated effect of such decisions on third parties: a credibility effect. Using a series of lab experiments, I find that defamation law makes individuals more trusting of reports from various media. This credibility effect is desirable when the report is true but can lead to unintended consequences in the case of misinformation. In particular, the credibility effect is shown to cast a stigma on innocent targets who choose not to file lawsuits. The existence of the credibility effect calls for different balances than are currently employed in defamation law; challenges the vindication justification; and, more broadly, illustrates the limits of policies intended to fight misinformation

    Policing Protest: Speech, Space, Crime, and the Jury

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    Speech is more than just an individual right-it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights - either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal statutes and ordinances adversely affect marginalized or dissenting speech. Despite their general classification as constitutionally permissible time, place, and manner restrictions, this Feature concludes that enforcement of such statutes contributes to a subordinating First Amendment landscape, disproportionately burdening some speakers and some messages more than others. To address these concerns, this Feature makes two critical normative claims. First, scholars and courts alike have failed to prioritize access to spaces properly. This, in turn, carries a second normative claim: the current consideration of access to space as a forum of speech ignores the reality that presence, at times, is the message. To force a speaker to an alternative forum through the enforcement of criminal law is effectively to regulate the message out of existence. Finally, this Feature proposes a novel First Amendment defense when criminal charges implicate the defendant\u27s speech activity. This proposed defense provides a mechanism to vindicate the overlooked First Amendment consequences of such charges and empower citizen jurors to engage in community-based decision-making about the value of speech

    The (Tax) Policy Entrepreneur

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    Crying Wolf: Neo-Patriots, Critical Race Theory, and the Constitutional Protection of Dangerous Ideas

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    Most Americans do not realize that, notwithstanding the First Amendment\u27s free speech guarantee, for most of our nation\u27s history, judges sent men and women to prison for expressing ideas considered too dangerous. It was not until the late 1960s that the Supreme Court rejected the clear and present danger doctrine, insisting that statutes banning speech must draw a distinction between advocacy of ideas and advocacy of imminent lawless action. The Court held that under that constitutional norm, the government could not send a Klansman to prison for expressing racist, anti-Semitic, or otherwise dangerous or offensive ideas. Since then, banning the advocacy of ideas has been presumptively unconstitutional. In recent months, however, a number of state and federal measures have aimed to ban discussion of so-called divisive concepts, including Critical Race Theory ( CRT ) in public schools and workplaces. Others target books, such as The 1619 Project, or the use of selected curricular materialsf rom groups,f or example, like the Southern Poverty Law Center\u27s Learning for Justice Project. Still others target anti-racist diversity, equity, and inclusion trainings for government employees. Such materials and trainings have been declared anti-American, dangerous, hateful, or even racist by neo-patriots, persons in and outside government who seek to use the law to ban the expression of ideas they find objectionable. Remarkably, without any discussion of core First Amendment doctrine, what CRT is, or what critical race theorists have written, governments have once again responded to public pressure and declared some ideas and materials too dangerous and sought to punish some speakers. Recalling similar periods of viewpoint censorship during the last century, this essay examines the constitutional implications of bans on CRT, The 1619 Project, and other materials, and provides a constitutional roadmap for challenging such bans on First and Fourteenth Amendment grounds

    At the Nexus of Antitrust & Consumer Protection

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    This Essay uses Section 5 of the Federal Trade Commission Act to examine the theoretical and practical relationship between antitrust and consumer protection law. It argues that, since roughly 1980, there has been a hegemonic neoliberal framework, one that has in recent years been challenged by an emerging moral economy framework. The neoliberal framework conceptualizes antitrust as preventing firms from conspiring to throttle output, with a focus primarily on consumers\u27 interests in low prices, and consumer protection as making consumers informed, rational, and able to switch between competitors with relatively low cost. The moral economy framework conceptualizes both areas of law as aiming to prevent powerful players from using their power to manipulate conditions in their favor and away from a more general (though contested) notion of the public interest. Implications of each view for the application of Section 5 are explored, with attention to the case law surrounding each area of doctrine

    From Cannabis to Crypto: Federal Reserve Discretion in Payments

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    From its inception, the Federal Reserve has operated payment systems that let banks move money for their customers. Checks, wire transfers, and electronic consumer payments all happen thanks to the Federal Reserve. Congress by statute specified which banks get access to the Fed\u27s payment services. For more than a century, the Federal Reserve provided services to all legally eligible banks. But when the Federal Reserve received requests for payments access from a cannabis-focused credit union and a cryptocurrency custody bank (both of whom are legally eligible), it denied them. The Fed also issued sweeping guidelines claiming discretion to conduct risk vetting and deny bank requests. These guidelines apply to all banks and reverberate far beyond cannabis and crypto. This Article examines whether the Federal Reserve\u27s payments discretion is as great as it now claims, a question that has been raised in five recent cases but never answered. It concludes the Fed has overstepped. The language and structure of the Federal Reserve Act require that the Federal Reserve provide payment services to all eligible banks. In support of this statutory interpretation, the Article excavates long forgotten legislative history and more than a century of sometimes hidden Federal Reserve payments practices. It shows that although the Federal Reserve has some discretion over the payments it processes and terms under which it offers it payments services, the Fed\u27s discretion is not so broad that it can deny access to legally eligible banks. If the Fed wants to exclude banks, it should ask Congress to change the law

    Noncitizen Harboring and the Freedom of Association

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    The United States has long criminalized assistance to unauthorized migrants. It is a crime to smuggle, transport, harbor, or encourage unauthorized migrants to remain in the country, regardless of the reasons for such aid. In response to recent federal harboring prosecutions of humanitarians assisting migrants at the U.S.- Mexico border, scholars and advocates have shown tremendous interest in a defense to liability under the Religious Freedom Restoration Act and the First Amendment\u27s Free Speech Clause. But a comparative analysis of harboring law reveals that some foreign jurisdictions conceptualize harboring law and defenses to liability in terms of citizen-migrant associations rather than religious freedom or freedom of speech. This Article argues that conceptualizing harboring law in the United States in terms of the freedom of association, like these foreign jurisdictions, would pay off in three ways: First, it would improve the descriptive accuracy of the stakes in harboring prosecutions; providing water, food, and shelter to other people amounts to association more clearly than it does an expression of religious belief or a political view. Second, it would provide an opportunity to rework aspects of associationajlu risprudence by potentially extending the category of protected intimate associations to include activities of care outside of the family. Finally, focusing on association brings the relationships between citizens and migrants to the fore, which in turn stands to improve the visibility and stature of migrants in the law

    Opening a Federal Reserve Account

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    To open bank accounts, new customers provide personal information and make a deposit. Within a few minutes (or perhaps a few days), new customers get access to payment services. For many years, the process financial institutions used to open accounts at FederalReserve Banks was similar. Eligible banks filled out a one-page form and within a week received an account allowing them access to the FederalReserve\u27s payment systems. Recently, however, Federal Reserve Banks have spent years considering account requests from novel banks. This Article examines the Federal Reserve\u27s process for evaluating requests for accounts. Using interviews, court documents, and other sources, it analyzes recent account requests from a cannabis credit union, a narrow bank, a public bank, a cryptocurrency custody bank, and a trust company. These requests reveal a lack of transparency and consistency. Most district Federal Reserve Banks do not explain how institutions should apply for accounts. It is not clear who decides whether to open the account. While the Federal Reserve Banks all evaluate risk associated with accounts and payments, the twelve Reserve Banks may not have the same risk tolerances. Decisions may be inconsistent. Even getting a decision can take years. Unfortunately, the Federal Reserve\u27s recently adopted guidelines, which consist primarily of a risk identification framework, do not fix these problems. Congress should require that the Federal Reserve adopt public procedures describing how account applications are received and processed. These procedures should clarify the roles of the Reserve Banks and the Federal Reserve Board. To ensure that applicants are treated fairly and consistently, the FederalReserve should publicly disclose information about accountholders, account requests, and account decision

    The Public Voice of the Defender

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    For decades police and prosecutors have controlled the public narrative about criminal law. The news landscape features salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about the overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations-all of which inflict severe harm on defendants and their loved ones. But defenders rarely show the public the world they inhabit. That approach hasn\u27t stopped the carceral state from ballooning over the past fifty years; public defense budgets remain paltry, and clients suffer from too much law and too little justice in a system that disregards and dehumanizes them. This Article encourages defenders to go on the offensive, to seek transformative change toward a more just legal system. It builds on social media literature to and analyzes how defenders can strategically use social networking sites to add their expertise to ongoing public debates about crime and criminal justice policy. As the new existing efforts suggest, social media enables defenders to widely share the routine injustices they observe and to engage with local grassroots organizations to build coalitions. Defenders\u27 strategic use of social media won\u27t change policies overnight, but we are hopeful that it will augment public support for defenders and their clients and build power to transform the criminal legal landscape over decades


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