Abolishing the Communications Decency Act Might Sanitize Political Biased, Digitally Polluted, and Dangerously Toxic Social Media? - Judicial and Statistical Guidance from Federal-Preemption, Safe-Harbor and Rights-Preservation Decisions

Sitting and former U.S. Presidents, as well as members of the general public, financial, political and educational institutions, use social media. Yet, an overwhelming majority of users, content creators, parents, conservatives, progressives, Democrats, and Republicans distrust social media owners. Some critics allege that owners digitally pollute platforms by encouraging users to post corrosive, dangerous, toxic, and illegal content. Other critics assert that service providers\u27 purportedly objective content moderation algorithms are biased-discriminating irrationally on the basis of users\u27 political association, ideology, socioeconomic status, gender, and ethnicity. Republicans and Democrats have crafted roughly twenty bills on this matter. In theory, the enacted proposals would sanitize social media and end owners\u27 allegedly irrational practices—by abolishing, reforming, or limiting the scope of the safe-harbor-preemption defense under the Communications Decency Act § 230.4. But, would the proposals actually increase users\u27 ability to survive a preemption defense and sue providers on the merits? The bills\u27 sponsors have not carefully weighed this question. To fill the void, the author conducted a legal and empirical study to glean probative evidence from state and federal courts\u27 section 230 preemption decisions. Among other findings, the analyses reveal: (1) courts are more likely to block only certain users\u27 or content creators\u27 lawsuits when tech companies raise a section 230 preemption defense; (2) judges are more likely to allow a section 230 defense to thwart content creators\u27 tort-based rather than contract-based lawsuits; and (3) content creators are more likely to evade a preemption defense and litigate claims on the merits, if a federal statute contains a safe harbor clause as well as an unequivocal rights-preservation exemption. Hopefully, the findings will provide some judicial guidance -when Congress considers whether to abolish, reform or restrict the scope of the CDA\u27s section 230 immunity defense

Abolishing the Communications Decency Act Might Sanitize “Politically Biased,” “Digitally Polluted” and “Dangerously Toxic” Social Media? ― Judicial and Statistical Guidance From Federal-Preemption, Safe-Harbor and Rights-Preservation Decisions

Sitting and former U.S. Presidents as well as members of the general public, financial, political and educational institutions use social media. Yet, an overwhelming majority of users, content creators, parents, “conservatives,” “progressives,” Democrats and Republicans distrust social-media owners. Some critics allege that owners “digitally pollute” platforms by encouraging users to post “corrosive, dangerous, toxic and illegal content.” Other critics assert that service providers’ purportedly objective content-moderation algorithms are biased ― discriminating irrationally on the basis of users’ political association, ideology, socioeconomic status, gender and ethnicity. Republicans and Democrats have crafted roughly twenty bills. In theory, the enacted proposals would “sanitize” social media and end owners’ allegedly irrational practices―by abolishing, reforming or “limiting the scope” of the safe-harbor-preemption defense under the Communications Decency Act § 230. But, would the proposals actually increase users’ ability to survive a preemption defense and sue providers on the merits? The bills’ sponsors have not carefully weighed this question. To fill the void, the author conducted a legal and empirical study to glean probative evidence from state and federal courts’ section-230-preemption decisions. Among other findings, the analyses reveal: 1) Courts are more likely to block only certain users’ or content creators’ lawsuits when tech companies raise a section-230-preemption defense; 2) Judges are more likely to allow a section-230 defense to thwart content creators’ tort-based rather than contract-based lawsuits; and 3) Content creators are more likely to evade a preemption defense and litigate claims on the merits, if a federal statute contains a safe-harbor clause as well as an unequivocal rights-preservation exemption. Hopefully, the findings will provide some “judicial guidance”― when Congress considers whether to abolish, reform or restrict the scope of the CDA’s section-230-immunity defense

The Dynamics and Determinants of the Decision to Grant En Banc Review

The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en banc review. Yet, many critics contend that en bane rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article attempts to address these normative arguments over the legitimacy of the en banc process by determining the positive causes of the decision. The article proposes a hybrid model of the decision to grant en banc review, derived from the legal, attitudinal, and hierarchical theories of judicial behavior, and tests it empirically against nearly 1000 cases from three circuits. The model accurately predicts the decision to grant en banc review in nearly ninety percent of the cases. This article concludes that three factors--reversal of a lower court or agency ruling, filing of a dissent, and a liberal panel ruling--largely account for which panel decisions will be reheard en banc

The Dynamics and Determinants of the Decision to Grant En Banc Review

The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en banc review. Yet, many critics contend that en banc rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article attempts to address these normative arguments over the legitimacy of the en banc process by determining the positive causes of the decision. The Article proposes a hybrid model of the decision to grant en banc review, derived from the legal, attitudinal, and hierarchical theories of judicial behavior, and tests it empirically against nearly 1000 cases from three circuits. The model accurately predicts the decision to grant en banc review in nearly ninety percent of the cases. This Article concludes that three factors—reversal of a lower court or agency ruling, filing of a dissent, and a liberal panel ruling—largely account for which panel decisions will be reheard en banc

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study

Full-text available at SSRN. See link in this record.The "balanced realist" view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar. The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote. This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers

Responsibility in Capital Sentencing

Although modem doctrine is worth preserving, it could be improved significantly by focusing explicitly on heightening individual responsibility. Two concrete ways to improve it would be to (1) explain the sentencer\u27 s role in the narrative voice, a way of speaking that, at least in American society, appears to be associated with the assignment of responsibility; and (2) require heightened scrutiny of death sentences by state appellate courts, bringing the responsibility of state appellate judges in capital cases in line with the responsibility they bear in constitutional cases dealing with analogous mixed questions of fact and law under the First, Fourth, Fifth, and Sixth Amendments, as well as in noncapital punishment cases under the Eighth and Fourteenth Amendments. Part II summarizes modem death penalty doctrine and surveys the wide-ranging criticism of that doctrine both from members of the Court and academic commentators. Part III presents the responsibility theory as an alternative to the Court\u27s misguided pursuit of consistency and individualization in capital sentencing. It explains why individual responsibility is necessary to morally acceptable capital punishment and shows how modem doctrine tends to advance individual responsibility. Concluding subsections respond to likely empirical and theoretical criticisms. Part IV proposes reforms of modem doctrine that would more fully realize the benefits of the responsibility theory