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

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

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

Ethics & Independence in Trump’s War on Big Law

In his second term, President Donald Trump has launched an unprecedented assault on the nation\u27s largest law firms. Through a series of executive orders and highly unusual EEOC (Equal Employment Opportunity Commission) actions, the Trump regime has sought to undermine the independence of the private bar. In response, targeted firms have been forced to make a choice: to appease the administration or to fight back. This Essay considers those choices the interrelated nature of parallel settlements and suits-and the choice that the majority of firms have made to stay silent. We argue that Big Law\u27s independence is essential and that it is not too late for courage

\u3ci\u3eTransUnion\u3c/i\u3e, \u3ci\u3eVermont Agency\u3c/i\u3e, and Statutory Damages Under Article III

The Supreme Court concluded in TransUnion LLC v. Ramirez that a plaintiff may not sue to collect statutory damages under a statute such as the Fair Credit Reporting Act simply because the defendant violated a right Congress conferred on the plaintiff. Article III instead requires the plaintiff to show that the statutory violation resulted in a “concrete” injury with “a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.” Under the majority’s reading of Article III, “an injury in law is not an injury in fact.” The TransUnion Court made no effort to explain how its conclusion could be reconciled with Vermont Agency of Natural Resources v. United States ex rel. Stevens. The Vermont Agency Court unanimously ruled that Congress may authorize a private qui tam informer to sue for statutory penalties based on a violation of duties owed to the public, even though the informer has not suffered any particularized injury attributable to the defendant’s unlawful conduct. The Court closely examined statutes of the First Congress in light of Anglo-American legal history to find qui tam actions compatible with Article III. Early legislators understood qui tam actions to present “cases” or “controversies” traditionally resolved through the judicial process. A comparable examination of late eighteenth-century federal legislation undermines the majority’s decision in TransUnion. Statutory damages are a modern version of statutory forfeitures available under framing-era penal statutes. Sir William Blackstone explains that a defendant who violates a penal statute must pay a statutory forfeiture to whomever the legislature specifies, whether an aggrieved party, a public official, or a qui tam informer. Just as Congress awarded forfeitures to uninjured qui tam informers in early federal legislation, Congress likewise directed forfeitures to aggrieved parties who suffered no injury beyond the defendant’s violation of an individual right protected by statute. By claiming judicial authority to determine whether a plaintiff has suffered a “concrete” injury warranting recovery of statutory damages, the TransUnion Court inverted the framing-era relationship between legislatures and courts

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

Judicial Resistance to Mandatory Arbitration as Federal Commandeering

This Article argues that the current doctrine of preempting state substantive law in favor of the Federal Arbitration Act (FAA) contravenes core federalism principles generally, the Tenth Amendment specifically, and well-established anti-commandeering and federalism doctrine. These authorities are all concerned with a core federalism principle: state sovereignty. The states retained sovereignty when they joined the Union. The Tenth Amendment expressly enshrines this retention. Modem federal court doctrine, which imposes federal arbitration law on the states, encroaches on retained state sovereignty by preempting state substantive law. This is erroneous regardless of whether Congress enacted the FAA as a rule of federal judicial procedure or as an exercise of its substantive Commerce Clause power. Encroaching on the states\u27 retained sovereignty, as the FAA does, violates the fundamental federalism principle and opens a path toward disrupting the power balance between the state and federal governments that James Madison considered crucial to protecting individual liberty. When one sovereign comes to dominate in a federalist system, that government begins to lose its federalist character. Consequently, conflict about the FAA is no dry procedural dispute-it is a battle over the republic\u27s core principles. State courts should continue to serve their federalist role and fight in their comers, and the United States Supreme Court should revisit its FAA interpretation

Practicing Proportionality

At the heart of the Eighth Amendment\u27s Cruel and Unusual Punishments Clause are two concepts of proportionality—absolute and relative. Absolute proportionality ( cruel ) asks whether the sentence is commensurate with the state\u27s purposes of punishment. Relative proportionality ( unusual ), by contrast, asks whether the sentence is relatively similar to the outcomes of similar cases. Absolute proportionality sets limits on punishment based on the relationship between the punishment and the intended punitive goal; relative proportionality sets limits on punishment based on the sentencing outcomes in similar cases. In recent years, the United States Supreme Court has used the concept of absolute proportionality to create categorical prohibitions for the use of the death penalty for minor offenders, intellectually disabled offenders, and for nonhomicide crimes. The concept of relative proportionality, however, has received little attention. Indeed, ignoring this concept has perpetuated disparity in state court sentencing of death-eligible crimes. This Article argues for the restoration of relative proportionality under the Eighth Amendment and proposes a theoretical model for its application. Further, the Article addresses the central problem of relative proportionality—the inherent difficulty in applying it to individual cases—by offering a practical framework for determining the relative proportionality of a given case. Part I outlines the concept of relative proportionality and tracks its origins and jurisprudence. Part II explores the current applications of relative proportionality by various states and describes the unfortunate outcomes of these inadequate approaches. Part II offers a theoretical model for practicing the concept of relative proportionality and describes its application. Lastly, Part IV illustrates the jurisprudential and sentencing benefits of practicing proportionality

Dormant Commerce Clause: Claiming the Future of Horse Racing

The Supreme Court described the principles of the dormant Commerce Clause first in Gibbons v. Ogden (1824), coined the doctrine’s name in Willson v. Black-Bird Creek Marsh Co. (1829), and revisited the doctrine after a lengthy period of “dormancy” in National Pork Producers Council v. Ross (2023). Over the nearly two centuries that the Supreme Court has handled dormant Commerce Clause matters, one aspect that stands out is the unique nature of the industries that give rise to claims. Thoroughbred horse racing, a sport older than the United States itself, is one such example. The Supreme Court previously denied certiorari on the question of whether state-imposed restrictions that prevent horses purchased in claiming races from competing outside the state for a specified period are constitutional. The constitutional question of the “claiming jail” depends upon a series of suits filed by long-time Thoroughbred owner Jerry Jamgotchian against several state horse racing governing bodies. Kentucky, the state renowned for Thoroughbred breeding and racing, stands contrary to California and Indiana, where similar claiming jail provisions have been struck down by the courts as unconstitutional under the dormant Commerce Clause. Additionally, there is a peculiar absence of legal challenges to “claiming jail” provisions in Florida, another state integral to horse racing. This Note highlights the divergence of state court rulings and silence from Florida courts. Furthermore, this Note argues why Florida’s renowned Gulfstream Park has evaded litigation and analyzes whether it will continue to do so in the future. In doing so, this Note contributes to the ongoing debate over state regulations and their intersection with interstate commerce in the horse racing industry

The Chilling Effects of \u3ci\u3eDobbs\u3c/i\u3e

The Supreme Court’s evisceration of the federal constitutional right to abortion has raised the specter of criminal and civil liability for abortion providers and patients. Police and prosecutors have easy access to commercial reservoirs of intimate data. As individual accounts made clear in the wake of the Dobbs v. Jackson Women’s Health Organization decision, corporate surveillance of intimate life chilled expressive activities, such as searching for information about reproductive health and using period tracking apps. Health professionals did not feel safe to speak out about the impact of new abortion laws. Harassment and threats directed at abortion clinics and at people seeking abortion services ensured their silence. Evidence of chilling effects was anecdotal, yet empirically unproven. That is no longer the case. This Article describes the results of the first empirical study of post-Dobbs chilling effects. Our study explores how view counts for Wikipedia articles on period tracking apps and Google search terms related to period tracking apps decreased after the widespread media coverage of the new legal, privacy, and personal risks that the Dobbs decision created for period tracking app users. This Article sets forth our study design, explores the results, and discusses the implications for lawmakers, courts, and advocates. Lawmakers can rely on our study to show that people are being deterred from accessing crucial information that could help them better understand their reproductive health. Privacy law enforcers can leverage our findings to show proof of harm for privacy violations and to show standing. This study goes a long way to providing the proof needed to justify strong intimate privacy protections