Applying Militant Democracy to Defend Against Social Media Harms

Social media inflict multiple harms on liberal democracy. Online platforms thrive on propagating emotionally inflammatory content that maximizes user engagement. Too often that entails amplifying disinformation, hate speech, online extremism, and deep-seated partisan animosity. Tellingly, as documented in testimony before the House Select Committee to Investigate the January 6th Attack, in the weeks following the 2020 presidential election, Facebook, Twitter, YouTube, and Reddit knowingly enabled a firestorm of vitriolic far-right election denial on their platforms. In so doing, a Select Committee staff report concludes, the platforms “helped to facilitate the attack on January 6th.

Asserting Copyright\u27s Democratic Principles in the Global Arena

In a seeming blink of an eye, international bodies applying international law have effectively become the arbiters of domestic copyright law. World Trade Organization ( WTO ) dispute settlement panels may now determine whether a nation\u27s copyright law comports with the newly adopted Agreement on Trade-Related Aspects of Intellectual Property ( TRIPS ),\u27 and may authorize trade sanctions upon a finding of non-compliance. Of like import, the United Nations\u27 World Intellectual Property Organization ( WIPO ) increasingly serves as a favored venue for copyright industry and user groups to further their legislative agendas. Recent WIPO treaties have accordingly set the tone for proposed domestic legislation designed to bring copyright law into the digital age. Given the ongoing integration of world communications and markets for cultural expression, the continuing globalization of copyright law is inevitable. For that reason, the question of the future direction and shape of international copyright law has become a matter of considerable and growing controversy. Most pointedly, to the profound consternation of numerous commentators, recent years have seen a dramatic move to reconceptualize copyright in terms of international trade. TRIPS epitomizes that move. It aims to ratchet up worldwide copyright protection and enforcement in order to remove barriers to copyright industry exports. United States and European Union officials have aggressively promoted the view of cultural expression as a commodity of trade in other contexts as well. At the behest of their constituent producers and purveyors of sound recordings, films, television programs, and software, they have insisted that countries be required to minimize limitations on copyright holder rights, arguably riding roughshod over venerable copyright values and the public interest in the process. This Article presents an alternative framework for copyright globalization. It builds upon the argument, recently advanced by myself and others, that copyright law serves fundamentally to underwrite a democratic culture: By according creators of original expression a set of exclusive rights to market their literary and artistic works, copyright fosters the dissemination of knowledge, supports a pluralist, nonstate communications media, and highlights the value of individual contributions to public discourse.\u27 In this view, copyright\u27s constitutive, democratic purpose is both a primary rationale for according authors proprietary rights in original expression and the proper standard for delimiting those rights. Copyright holder rights should be sufficiently robust to support copyright\u27s democracy-enhancing functions, but not so broad and unbending as to chill expressive diversity and hinder the exchange of information and ideas

Market Hierarchy and Copyright in Our System of Free Expression

If trends of the past two decades persist, a vast inequality of wealth may well become a fundamental, defining characteristic of political and social life in many Western democracies, particularly the United States.\u27 Among its potentially pernicious effects, massive wealth disparity threatens the integrity of the democratic process. Liberal democracy aspires to political equality, which demands that opportunities to acquire and assert political power be widespread and broadly distributed. Political equality does not require economic equality. But political equality may be undermined by severe disparities of wealth. Absent preventive regulation, private wealth buys political power. It enables those with greater private means to exercise a disproportionate influence over legislation and to steer the course of public debate. For that reason, substantial inequalities of wealth may prove fundamentally incompatible with liberal democratic governance

Expert Opinion and Reform in Anglo-American, Continental, and Israeli Adjudication

The factual framework of modem litigation has become increasingly technical and complex; this development poses new challenges for traditional fact-finders. More and more, expert witnesses are being used to assist judges and juries in the factfinding process. This Article examines the role of the expert witness in the common-law and civil-law judicial systems, emphasizing the manner in which the divergent systems have responded to the need for reform in this area. The author then examines the role of the expert in the hybrid Israeli judicial system, which is rooted in both the civil-law and common-law traditions. Finally, the author demonstrates the relationship between prevailing attitudes toward the nature of adjudication and the response to pressure for the reform of the adjudicative process