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The Judiciary Act of 1789 and Marbury

I just returned from Mount Vernon, where I found several items of interest for my Bushrod Washington research.  (More on that next week). One nifty item that I picked up in the gift shop is a replica of George Washington’s copy of Acts Passed At A First Congress of the United States of America 1789, which was printed that year in New York and contains all of the statutes enacted by Congress in its first session. The President wrote in the margins of the Constitution that was reproduced in the volume, and the printers inserted various annotations to the statutes. (One thing I learned was that the State Department was originally called the Department of Foreign Affairs. Then Congress changed the name, probably because various domestic record keeping tasks were assigned to the Department.)

The most important annotation in this edition is in the Judiciary Act of 1789. In the portion of Section 13 of that Act the refers to writs of mandamus, the printers inserted a note that says “Supreme Court appellate jurisdiction.” This is, of course, the provision that the Supreme Court held unconstitutional in Marbury v. Madison because they said it enlarged the Court’s original jurisdiction. People have long pointed out that this statutory interpretation was bogus, but here is another piece of evidence for that criticism.

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FAN 191.2 (First Amendment News) Floyd Abrams Weighs in on Knight First Amendment Institute’s Victory in Twitter Ruling Against Trump

Back in July of last year, Jameel Jaffer, Katherine Fallow, and Alex Abdo filed a complaint in the Southern District of New York in a case titled Knight First Amendment Institute v. Trump. The suit contended that President Trump and his communications team violated the First Amendment by blocking seven people from the @realDonaldTrump Twitter account because they criticized the president or his policies.

                                                                 

Yesterday, in a 75-page opinion Judge Naomi Reice Buchwald ruled  that President Trump’s practice of blocking critics from his Twitter account violated the First Amendment. Judge Buchwald held that the “interactive space” where people reply to  Trump’s tweets amounted to a “designated public forum.” Given that, when the White House blocked users based on their viewpoints, it violated the First Amendment.

In an op-ed in today’s Daily News, Floyd Abrams wrote: “There are aspects [of the case] that are complex. But the core of the ruling is plain. A President who uses Twitter to pronounce many of his most critical decisions and defend them to the public cannot avoid his critics or deprive them of the chance to respond in the same place and at the same time as do his supporters. Judge Buchwald’s opinion is a powerful one that sends a powerful First Amendment message.”

Related News Story 

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Enforce This! Contract (as) Social Responsibility (Part 4)

A prior post made two basic points about the ABA’s Model Terms to protect human rights in the supply chain (Model Terms) as an example of “contract (as) social responsibility” (KSR): (i) they say nothing about substantive human rights standards (and that may be OK), and (ii) the desire to implement these standards through KSR terms may conflict with a desire to limit the buyer’s legal exposure for their violation.

Or not. . .

I want to turn now to what I suspect will be a central doctrinal question presented by KSR terms: enforceability.

I don’t mean enforceability in a technical sense—offer, acceptance, consideration (or equitable substitute)—but instead in a remedial sense:  Who can get a remedy for breach, and what would it look like?  Since the architecture of U.S. contract law sits on a foundation of privity and expectation, KSR may be an awkward fit, for at least three reasons.

First, consider the problem of third-party beneficiaries.   Read More

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FAN 191.1 (First Amendment News) Abrams Institute to Host Conference on Commercial Speech & Right of Publicity

Commercial Speech & the First Amendment:

Does the Right of Publicity Transcend Commercial Speech?

From Yale Law School’s Floyd Abrams Institute for Freedom of Expression

Please join us for an in-depth discussion on right of publicity. Our keynote speaker will be Jennifer Rothman, Professor of Law at Loyola Law School, Joseph Scott Fellow, and author of the upcoming book: The Right of Publicity: Privacy Reimagined for a Public World.

  • Are there First Amendment limits to this claim?
  • What are the litigation strategies for approaching these claims?
  • And what are the legislative strategies and imperatives for legislative initiatives?

Date & Time

Monday, June 4, 2018 // 8:30 AM – 2:30 PM EDT

Does the First Amendment have anything to say here?

Moderator: Jeremy Feigelson, Debevoise & Plimpton

Panelists:

  • Robert C. Post, Sterling Professor of Law, Yale Law School
  • Jennifer Rothman, Professor of Law, Joseph Scott Fellow, Loyola Law School
  • Rebecca Tushnet, Frank Stanton Professor of the First Amendment, Harvard Law School

What content is protected? What content should be protected? How to frame the argument. Does the concept of “commercial speech” retain any relevance to the analysis?

Litigating the Claims

Moderator: Stacey Dogan, Professor, Boston University School of Law
Panelists:

  • David Schulz, Ballard & Spahr LLP
  • Nathan Siegel, Davis Wright Tremaine LLP
  • Annie Pell, NFL

What are the strategic decisions to be made? What wins, and what does not?

Legislative Initiatives: What matters

Moderator: Daniel Kummer, NBCUniversal Media, LLC
Panelists:

  • Gena Feist, TakeTwo Interactive Software, Inc.
  • Edward Rosenthal, Frankfurt Kurnit Klein & Selz PC
  • Vans Stevenson, Motion Picture Association of American, Inc.

Exceptions Clauses:

  • Do they lead courts to assume that all content is subject to ROP claims, except the exceptions?
  • How should they best be drafted?
  • What other key and contentious clauses are in the legislative mix today?
  • Are there viable compromises between the performers’ unions and the creative community on ROP statutes?

Accreditation

  • Application for New York accreditation of this program is currently pending.

Host of Conference

  • We want to thank Debevoise & Plimpton for agreeing to host the Conference this year.

Conference Sponsors: We want to thank the additional sponsors of this Conference:

  • Ballard Spahr LLP
  • Davis Wright Tremaine LLP
  • Frankfurt Kurnit Klein & Selz PC

Location

Debevoise and Plimpton, 919  3rd Ave., New York, NY 10022

Registration

Space is limited for this Conference. We anticipate a waiting list, so please do not register if you do not think you will actually attend.

REGISTER HERE

If you find that you cannot attend, please let us know ASAP. Again, we anticipate a waiting list.

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FAN 191 (First Amendment News) “Robotica” — First Book on Speech Rights & Artificial Intelligence Published

If any current scholarly work of free speech theory survives into the next century, it will undoubtedly be this book.
Abstract: As more and more communication becomes robotized and/or is driven by artificial intelligence, a variety of questions arise about the relation between the government’s regulation of such communication and First Amendment law. Such robotized communication involves everything from our home appliances, automobiles, phones, computers, and more. Ever more press stories are today being written by algorithmic design, and stock transfers follow a similar path of communication.

But is such data speech under the First Amendment? Are such transfers even communication within the meaning of the First Amendment? And if so, to what extent, any why, can the government regulate these new technologies? Such questions and others are explored for the first time in book form in  the latest work by First Amendment scholars Ronald Collins and David Skover.

Professor David Skover

The book (their tenth) is ROBOTICA: SPEECH RIGHTS & ARTIFICIAL INTELLIGENCE (Cambridge University Press, June 2018).

  Following the main text, are four commenatries by Ryan Calo, Jane Bambauer, James Grimmelmann, and Bruce E.H. Johnson. The authors thereafter reply to the commentaries.

Advance Praise

“Collins and Skover have produced a wonderfully readable, thorough, and insightful exploration of the intersection of technology and free speech theory, from the beginning of time well into the future. If any current scholarly work of free speech theory survives into the next century, it will undoubtedly be this book.” — Martin Redish, Louis and Harriet Ancel Professor of Law, Northwestern University Law School

“Collins and Skover have long been among the finest minds focused on free expression in America. In this remarkable book, they now turn insightfully to an incredibly complex and timely issue associated with ‘robotic expression’: how should the First Amendment handle contests involving regulation of ‘robot speech’ as artificial intelligence grows rapidly in prominence? This book conveys their deep knowledge – and the knowledge of other noted scholars – of the history, law, and technology that inform the way we should think about this emerging field of constitutional inquiry. ” — John Palfrey, Head of School at Phillips Academy, Massachusetts & former Executive Director of the Berkman Center for Internet and Society, Harvard University

New Book on Right of Publicity 

Jennifer Rothman has written an important, informative study of the right of publicity as it has developed in the United States and its connections to a robust privacy right. By reexamining the past, she has elaborated principles that will be useful in defining both publicity and privacy rights for the digital age.Rebecca Tushnet, Harvard Law School

Abstract: Who controls how one’s identity is used by others? This legal question, centuries old, demands greater scrutiny in the Internet age. Jennifer Rothman uses the right of publicity―a little-known law, often wielded by celebrities―to answer that question, not just for the famous but for everyone.

In challenging the conventional story of the right of publicity’s emergence, development, and justifications, Rothman shows how it transformed people into intellectual property, leading to a bizarre world in which you can lose ownership of your own identity. This shift and the right’s subsequent expansion undermine individual liberty and privacy, restrict free speech, and suppress artistic works.

The Right of Publicity traces the right’s origins back to the emergence of the right of privacy in the late 1800s. The central impetus for the adoption of privacy laws was to protect people from “wrongful publicity.” This privacy-based protection was not limited to anonymous private citizens but applied to famous actors, athletes, and politicians. Beginning in the 1950s, the right transformed into a fully transferable intellectual property right, generating a host of legal disputes, from control of dead celebrities like Prince, to the use of student athletes’ images by the NCAA, to lawsuits by users of Facebook and victims of revenge porn.

The right of publicity has lost its way. Rothman proposes returning the right to its origins and in the process reclaiming privacy for a public world.

→ RelatedRothman’s Roadmap To The Right of Publicity

Steve Brill’s Latest Book Discusses First Amendment Law (among other things) Read More

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Vanderbilt Law Review, Volume 71, Number 4

The Vanderbilt Law Review is pleased to announce the publication of our May 2018 issue:

ARTICLES

Rafael I. Pardo, Bankrupted Slaves, 71 Vand. L. Rev. 1071 (2018).

William Magnuson, Regulating Fintech, 71 Vand. L. Rev. 1167 (2018).

Sarah L. Swan, Plaintiff Cities, 71 Vand. L. Rev. 1227 (2018).

ESSAY

Susan S. Kuo & Benjamin Means,The Political Economy of Corporate Exit, 71 Vand. L. Rev.  1293 (2018).

NOTES

Alex Carver, Rethinking Conspiracy Jurisdiction in Light of Stream of Commerce and Effects-Based Jurisdictional Principles, 71 Vand. L. Rev. 1333 (2018).

Jessica Lauren Haushalter,Neuronal Testimonial: Brain-Computer Interfaces and the Law, 71 Vand. L. Rev. 1365 (2018).

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University of Toronto Law Journal Volume 68, No. 2, Spring 2018

University of Toronto Law Journal – Volume 68, No. 2 (Spring 2018)

The proper role of policy in private law adjudication

Ross Grantham, Darryn Jensen

Canadian legislatures and the regulation of the private health-care industry

Marie-Claude PrémontCory Verbauwhede 

Group rights, participatory goods, and language policy

Piet Goemans

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Why is Business Law Education So Bad?  Value-Creation by Law Professors

The question posed in the title of this post—why is business law education so bad?—was first asked in a famous and provocative 1984 paper by Stanford law professor Ronald Gilson, Value Creation by Lawyers.

That paper is best known for developing a micro-economic answer to a different—but ultimately related—question: Why would anybody pay for business transactional lawyering?  And, if no one would (or should) pay for those services, why should anyone pay (or be paid) to learn (or teach) them?

The price of bad education

Although the questions are not new, they have become more important as technology and markets transform the practice and study of law.

Gilson argued that there was an economic explanation: lawyers produce and verify information that brings the deal price closer to a hypothetical “true” market value.

Although this question—and Gilson’s answer—have received the most attention, Gilson also had important observations about legal education.  Boiled down, he suggested that law schools should: (1) expose students to the actual transactions in which they were likely to participate; and (2) teach them a legal theory that would help to explain both why these transactions occurred, and why (and how) lawyers would add value by performing services in them.

When Gilson wrote this, law schools struggled with both because, among other things, most legal academics had little transactional experience.  In the more than thirty years since Value Creation, however, law schools have exploded with courses that achieve the first goal, exposure.  It would be difficult today to find a law school that did not offer some form of skills training to prepare law students for careers as business lawyers.  A large and growing literature describes in exquisite detail how to design and teach these courses.

Yet, so far as I can tell, neither the courses nor the literature engage the second half of the problem as Gilson framed it, legal theory. (I put to one side clinics, which have their own literature, as well as skills supplements for traditional classes).  Rather, they focus on “transactional skills” qua skills, such as drafting and negotiating—admittedly vital functions—without considering how legal theory might explain, explore, enhance or critique them.  They have taken half of Gilson’s recommendation and declared victory.

This is a problem for two reasons. First, it seems indifferent (perhaps hostile) to the role that legal theory and scholarship could play here.  Transactional skills literature reads as a series of “recipes,” how-to-get-to-yes-guides insensible to the possibility that, in many deals, “no” may be better the answer. Read More

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Charles Evans Hughes and Chevron Deference

Chevron deference is a hot topic. There is growing criticism from judges and scholars against the view that courts should defer for the most part to agency readingsof statutes they are charged with implementing. I do not have a dog in this fight, but I did come across an interesting nugget recently for people who do care.

Many of you have heard this famous line from Charles Evans Hughes: “We are under a Constitution, but the Constitution is what the judges say it is.” Legal Realism run amok, right? But the context in which then-Governor Hughes made this off-the-cuff remark was in a speech attacking the notion that courts should exercise robust review over the decisions of administrative agencies. The speech concerned a bill in New York
that proposed creating a commission to regulate railroads. Here is the relevant passage from Hughes:

But when you deal with a railroad man who fairly and squarely meets you, you will find that he will agree that these powers are needed, supposing that abuses exist which would call them into action. The other night I was talking to such a gentleman, and when we got through, the practical result of all was this : I said to him : ” What you really want is a chance to go to the courts ? ” And he said: ” Yes, that is all there is about it.” That seemed to be the main point. A chance to go from the commission to the courts.

I have the highest regard for the courts. My whole life has been spent in work conditioned upon respect for the courts. I reckon him one of the worst enemiesof the community who will talk lightly of the dignity of the bench. We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution. I do not want to see any direct assault upon the courts, nor do I want to see any indirect assault upon the courts. And I tell you, ladies and gentlemen, no more insidious assault could be made upon the independence and esteem of the judiciary than to burden it with these questions of administration, questions which lie close to the public impatience, and in regard to which the people are going to insist on having administration by officers directly accountable to them.

Let us keep the courts for the questions they were intended to consider. When questions of property rights are involved, the constitutional right to hold property and not to be deprived of it without due process of law is involved; when, under the guise of regulation or authority to supervise railroad management, there is an assumption of arbitrary power not related to public convenience; when there is a real judicial question let the courts have it and every good citizen will stand aside and hope to see it decided fairly and with even-handed justice. When you deal with matters of this sort you may be sure that there will be a variety of questions, which, whatever the fact may ultimately be proved to be, can by astute lawyers be said to involve such judicial matters, and there will be abundant opportunity for review of everything that should be reviewed.

But to say that all these matters of detail which will be brought before the commission, matters requiring men to give their entire attention to the subject, toget their information in a variety of ways, to have hearings of those interested, and to deal with questions from a practical standpoint, should, at the option of the corporations, be taken into court, is to make a mockery of your regulation. And, on the other hand, if that policy should succeed, it would swamp your courts with administrative burdens and expose them to the fire of public criticism in connection with matters of this description, from which I hope they will be safeguarded.

You must have administration, and you must have administration by administrative officers. You cannot afford to have it otherwise. Under the proper maintenance of your system of government and in view of the wide extension of regulating schemes which the future is destined to see, you cannot afford to have that administration by your courts. With the courts giving a series of decisions in these administrative matters hostile to what the public believes, and free from that direct accounting to which administrative officers are subject, you will soon find a propaganda advocating a short-term judiciary, and you will turn upon our courts the final safeguard of our liberties that hostile and perhaps violent criticism from which they should be shielded and will be shielded if left with the jurisdictions which it was intended they should exercise.

Now obviously this passage does not address all aspects of the Chevron debate. Still, I think it gets at important parts of that conversation, such as public accountability and the politics/law distinction.

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Contract (as) Social Responsibility (Part 3): Model Contract Terms

My prior posts (#1 and #2) set up the idea that contract appears to be an increasingly attractive way to do some sort of “social justice,” for example by attempting to reduce labor trafficking in supply chain contracts.  I refer to this generally as “contract (as) social responsibility” (KSR).

A contradiction in terms?

I want to turn now to a thoughtful example of KSR terms, the Model Terms (Model Terms) being developed by the Working Group to Draft Human Rights Protections in Supply Contracts of the Business Law Section of the American Bar Association (Working Group).

The Working Group is led by Professor David Snyder (American University) and attorney Susan Maslow.  Although the Model Terms have not yet been posted, they should be shortly and, in any case, are available from David (dsnyder@wcl.american.edu) and Susan (smaslow@ammlaw.com).  The Working Group’s report and the Model Terms are slated to be published in The Business Lawyer later this year.  [Disclaimer:  I am a member of the Working Group and on the editorial board of The Business Lawyer.  Nothing I say on CoOp should be imputed to them.]

While I should probably post a “spoiler alert” here, I thought it would be helpful to summarize certain aspects of the Model Terms in order to identify some of the issues they and, by inference, other KSR terms may raise.

The Model Terms have two goals that are, perhaps, in tension.

Read More