Florida Preemption of Local Environmental Ordinances

This Note addresses the battle between Florida legislators and local governments over the environmental ordinances local governments can enact. Florida state legislators and private industries have frequently used the preemption doctrine to strike down local governments’ environmental ordinances. This Note looks at three areas where that battle is currently taking place or is expected to take place: the regulation of single-use plastics, the granting of rights to nature, and fracking. Seeing the lack of success that Florida’s local governments have had, this Note turns to the rest of the United States to examine how local governments can better respond. Three lessons that stand out are the importance of prioritizing public education, avoiding overlapping state permits and regulations, and framing local ordinances as zoning matters. This Note brings these lessons back to Florida and uses them to develop strategies that Florida local governments could use to advance their environmental ordinances or the goals behind them. These strategies focus on using public education to gain public and constitutional support, rooting the goals of local environmental ordinances in the traditional functions of local governments, and framing local ordinances primarily as zoning matters

Reasonableness as Censorship: Section 230 Reform, Content Moderation, and the First Amendment

For the first time in the internet’s history, revising Section 230 of the Communications Decency Act’s immunity for social media platforms from liability for third-party content seems to many not just viable, but necessary. Most such calls for reform are built around the longstanding common law liability principles of duty and reasonableness, namely conditioning Section 230 liability on platforms acting reasonably to “prevent or address” third-party content that might be harmful or illegal. These reforms are finding common cause with several legislative and executive efforts seeking to compel platforms to adhere to “reasonable” or “politically neutral” moderation policies or else face increased liability for user speech. And calls for entirely new regulatory regimes for social media, some of which also call for new federal agencies to implement them, advocate for similar approaches. This Article is the first comprehensive response to these efforts. Using the guidance of the common law to unpack the connections between reasonableness, imminence, and intermediary liability, this Article argues that these proposed reforms are misguided as a matter of technology and information policy and are so legally dubious that they have little chance of surviving the court challenges that would inevitably follow their adoption. It demonstrates the many problems associated with adopting a common-law-derived standard of civil liability like “reasonableness” as a regulatory baseline for prospective platform intermediary fault. “Reasonableness”-based Section 230 reforms would also lead to unintended, speech-averse results. And even if Section 230 were to be revised, serious constitutional problems would remain with respect to holding social media platforms liable, either civilly or criminally, for third-party user content

Reducing Disparities in Civil Procedure Systems: Towards a Global Semi-Adversarial Model

It is commonly perceived that the main difference between adversarial and non-adversarial systems of civil procedure is the party charged with the duty to gather facts and evidence. Generally speaking, in adversarial systems, it is the lawyers who gather facts and collect evidence while in non-adversarial systems, like continental Europe, it is the judges who bear that responsibility. Although this dichotomy exists, it is fundamentally flawed to conclude that the non-adversarial systems, such as the Continental ones, differ from the American system because of the inquisitorial method both in fact-gathering and evidence-gathering. The real differences, as we will demonstrate, are mainly the parties’ roles in the preliminary phase of the lawsuit, the methods of discovery, the judge’s involvement in the case, and the techniques for examining non-documentary evidence. Both systems present advantages and drawbacks regarding efficiency (cost-saving) and efficacy (truth-finding) in the administration of justice. Suppose the procedural divergence is not entirely irreconcilable. Can they complement each other? In this respect, we specifically ask if an adversary system can help the most troubling aspects of non-adversary practices. If so, is it possible to reconcile the non-adversarial model with a preliminary phase typical in adjudication in the adversarial system? The recent Italian reform on civil procedure allows us to shed light on these questions. This more adversarial proceeding emerging from new Continental trends might seem particularly exciting for two reasons. Firstly, it introduces a stimulating new framework to reshape the debates about civil justice reform in an adversary system. Secondly, it suggests a new way of thinking about traditional domestic and country-specific rules and outlines a unified model of a semi-adversarial system

The Writing on the [Fire] Wall: Mission Critical Cybersecurity Derivative Litigation is on Delaware\u27s Horizon

The impact of the information economy during the last quarter century has been dramatic. But for all its glory, the information economy also presents vulnerabilities: a cybersecurity breach can materially affect firm value. Although some security breaches may be inevitable in the modern world, courts are increasingly considering the question of whether the corporation’s directors and officers may be held liable under the theory that they acted in bad faith in their oversight of the corporation’s cybersecurity. To date, no suit has survived a motion to dismiss but several have settled for sizeable amounts. A watershed decision from the Delaware Supreme Court and a series of chancery court decisions may provide the opening plaintiffs’ lawyers have been looking for. With an unmatched data breach in SolarWinds, the writing is on the [fire]wall: Delaware corporations should brace themselves for “mission critical” cybersecurity derivative litigation

Mandatory Infringement

In 2005, the Food and Drug Administration required the use of chlorofluorocarbon-free propellants in albuterol inhalers. But 3M held patents on the only U.S.-approved chlorofluorocarbon-free inhaler. The agency’s regulations forced multiple generic albuterol manufacturers to choose between infringing 3M’s patents or exiting the market. This state of affairs was lucrative for 3M, perhaps good for the environment, bad for competition, and terrible for patients faced with high costs for essential medical devices. This is an example of a general phenomenon: mandatory infringement. Intellectual property prohibits certain activities, but sometimes the government also mandates these very same activities. Such situations arise surprisingly frequently in fields including environmental protection, pharmaceutical labeling, information technology, and access to justice. The manifest injustice of regulatory law requiring what intellectual property law disallows has sparked vigorous debates over individual cases in all these fields. Yet there has been no unified treatment of how the law should address mandatory infringement. Courts and scholars have taken approaches that are scattershot, idiosyncratic, and even inconsistent with each other. The key to fixing mandatory infringement is understanding why it is a problem in the first place: competition. Mandatory infringement creates outsized market power due to an inverse relationship between the effect of regulations and intellectual property rights on competition. It further enables passing the buck between regulators and courts, encourages rent-seeking rather than innovation, and induces government offloading of licensing costs onto regulated entities that produces a principal–agent disconnect. These phenomena explain why regulators and courts applying antitrust or intellectual property laws have difficulties resolving mandatory infringement. Although they try hard to reach fair outcomes, and often succeed, the distinctive aspects of mandatory infringement and authorities’ failure to recognize them frequently have left unjustified market dominance intact. A new approach is required: a trans-substantive doctrine that excuses mandatory infringement, not tied to specific legal regimes but broadly encompassing matters of competitive markets and public welfare

State-Created Environmental Dangers and Substantive Due Process

This Article focuses on litigation arising out of contaminated drinking water in Flint, Michigan, lead paint in New York City public housing, and harms to young people from the impacts of climate change. At the heart of each case is a claim that state officials violated the plaintiffs’ substantive due process rights by creating or enhancing an environmental danger and then deliberately failing to mitigate the risk to the plaintiffs. Although the plaintiffs characterize their claims in similar fashion, the three cases are not likely to enjoy the same success as they move through the courts. The scholarly commentary thus far does not offer satisfying answers to why plaintiffs might state a claim against officials for contaminated drinking water but not for an unstable climate. Although these cases involve novel applications of substantive due process doctrine, scholars have yet to examine exactly if and how they depart from other substantive due process cases. To fill this gap in the literature, this Article seeks to situate these cases in existing doctrine. In doing so, it exposes doctrinal confusion regarding which standards and tests apply to state-created danger claims. In addition, to provide courts with necessary guidance, this Article proposes a framework for state-created danger claims, limited by established common law principles and grounded in the important distinction between challenges to official misconduct and challenges to governmental law or policy

The People\u27s War and Its Application to China\u27s Legal Framework for Cybersecurity

This Article addresses the growing threat of cyberattacks on critical infrastructure by examining China’s response, particularly through its Cybersecurity Law (CSL), against the backdrop of global cybersecurity laws like the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). The CSL, enacted in 2016, is analyzed within the context of Chinese military doctrine, specifically, the concept of the People’s War introduced by Mao Zedong. Part I traces the historical evolution of the People’s War, Part II explores its continued relevance in cyberspace, and Part III discusses how the People’s War elements manifest in the CSL and related regulations. This Article argues that the CSL focuses on elevating China’s defensive cyber capabilities across governmental and consumer sectors, diverging from the more consumer-privacy-centric approach of other global cybersecurity laws. Part IV delves into the challenges the United States faces in responding to the CSL and suggests potential paths forward to bridge strategic divides between the two countries in the realm of cyberspace. The introduction vividly portrays real-world scenarios of cyberattacks impacting critical infrastructure, setting the stage for the exploration of China’s unique response in the subsequent sections