Exploring New Approaches to Unsettled Legal Questions

Category: Contributions Page 2 of 14

Mastering the Internet Experience: Why Section 230 Carve-Outs for “Neutral Assistance” Should Not Extend to Algorithmic Recommendations

by Amanda Frame*

Section 230 is sometimes referred to as “the internet’s most important law.” The statute, which amends the Communications Decency Act, generally provides immunity for website platforms from liability arising from the content produced by third parties. In doing so, Section 230 eliminates many ordinary legal responsibilities assumed by traditional publishers of third-party content. Protections initially meant to facilitate the growth of the internet now shield powerful social media corporations and incentivize risky and permissive content moderation rules. A proposed shift in the statutory interpretation of “development” would make it easier for plaintiffs to bring facially valid claims against big tech and would allow finders of fact to properly determine when the existing “good faith” requirements have been violated.

The “Independent State Legislature Theory”: A Disaster for Democracy

by Claire Bartholomew*

It has long been accepted that although state legislatures have inherent constitutional authority to set the “Times, Places and Manner of holding Elections,” other state judicial and executive officials, such as Governors, Secretaries of State, and state supreme courts, may alter or nullify duly enacted state election regulations if they violate that state’s constitution or the federal constitution. However, in recent years, some state legislatures have argued that their authority over state election regulations is absolute and untouchable by non-legislative state officials, promulgating what they have termed the “independent state legislature theory.” This Contribution argues that this theory must be fully repudiated; to protect our democracy from authoritarian rule, non-legislative state officials must be allowed to alter or nullify state election regulations if they violate their state or the federal constitution.

Why the Original Meaning of the Confrontation Clause Governs the Admissibility of Video Testimony at Criminal Trials

by Daniel Cook*

The Sixth Amendment’s Confrontation Clause calls into question an increasingly common practice during the COVID-19 pandemic: testimony by two-way video teleconferencing at criminal trials. Proponents of video testimony argue that it is consistent with Maryland v. Craig, which held that the Confrontation Clause might be satisfied absent a physical confrontation as long as the denial of confrontation is necessary for trial and the testimony’s reliability is otherwise assured. Opponents of video testimony rely on Crawford v. Washington, which was decided two decades after Craig and held that the Sixth Amendment’s original meaning categorically mandates confrontation, at least with respect to testimonial hearsay. Importantly, Crawford held that judicial determinations of reliability are an insufficient basis for departing from the original meaning of the Confrontation Clause. Although Crawford did not directly address video testimony, some courts and commentators believe that Crawford supplanted Craig with a categorical rule requiring face-to-face confrontation, which video testimony may violate. This Contribution argues that Crawford embodied a sea change in Confrontation Clause jurisprudence, such that Craig no longer governs the admissibility of video testimony at criminal trials.

Modernizing Royalties: How a Retroactive Application of the CLASSICS Act is Necessary to Make Legacy Artists Whole

by David Schulman*

Prior to 2018, copyright law did not require payment of royalties for sound recordings to pre-1972 artists (or the respective copyright owner), creating a massive pay disparity between pre-1972 artists and contemporary artists who had a statutory right to receive those royalties. In 2018, Congress enacted the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (“CLASSICS”) Act to remedy this gap in protections and payments between legacy and contemporary artists. Essentially, the CLASSICS Act ensures that pre-1972 artists are afforded copyright-like protections and liberties in line with what their contemporary peers have enjoyed for years. The question yet to be resolved is whether the Act should apply retroactively. Retroactive application of a new legal right implicates due process rights given that vested interests, particularly in previously negotiated contracts, may be negatively impacted. This Contribution argues that the CLASSICS Act should apply retroactively given its purpose and status as economic legislation. Moreover, retroactive application of the CLASSICS Act would not violate due process rights notwithstanding potential adverse effects on reliance interests because the Act meets the requisite rational basis test.

A SLAPP in the Face: How State Anti-SLAPP Statutes Can Still Apply in Federal Courts Exercising Diversity Jurisdiction

by Conner Kozisek*

A Strategic Lawsuit Against Public Participation (“SLAPP”) is a meritless lawsuit designed to chill constitutionally protected speech, thereby posing a dangerous threat to First Amendment rights. To challenge the chilling effects of SLAPP suits, more than 30 states and the District of Columbia have adopted anti-SLAPP legislation, many of which create a special motion to strike a claim based on a defendant’s speech in furtherance of their First Amendment rights. Because there is no federal anti-SLAPP legislation, the federal judiciary is divided on whether anti-SLAPP laws should apply in federal courts exercising diversity jurisdiction, especially in the wake of the Court’s fractured opinion in Shady Grove Orthopedic Associates v. Allstate Insurance Co. This Contribution argues that federal courts sitting in diversity should apply the approach set forth in Justice Stevens’s Shady Grove concurrence to recognize the potential substantive rights created by or protected through anti-SLAPP legislation.

Title II of the ADA & Public School Removals

by Ainsley McMahon*

Under the Individuals with Disabilities Education Improvement Act (“IDEA”), students with disabilities are entitled to a “free appropriate public education” provided by the state. Some states, such as Georgia, have imposed discriminatory programs that remove students with disabilities from schools altogether. For extreme programs such as these, advocates are pursuing ADA antidiscrimination claims to achieve a higher standard of education for these students, particularly where IDEA protections prove insufficient. Recent cases in Georgia indicate that these ADA claims may be a viable option for protecting disability rights and ensuring disability justice in public schools.

The Odd Man Out: How The Oddities of The Debtor-in-Possession Mechanism Suggest That § 547(c)(4)(B)’s Otherwise Unavoidable Transfers Must Be Pre-Petition

by August Meny*

In Chapters 7, 13, and some Chapter 11 bankruptcies, an administrative payment under § 503(b)(9) made by a trustee would not constitute an “otherwise unavoidable transfer” under § 547(c)(4)(B), meaning that creditors can use both § 503(b)(9) and a § 547(c)(4) defense to protect their transfers. However, the unique role of debtors-in-possession in some Chapter 11 bankruptcies has led some courts to interpret § 503(b)(9) as foreclosing the § 547(c)(4) defense under (c)(4)(B) when a debtor-in-possession makes the transfer. This Contribution argues that this differential treatment of § 547(c)(4)(B) in Chapter 11 bankruptcies involving debtors-in-possession erroneously strays from the principle that debtors-in-possession should be treated the same as trustees, and that § 547(c)(4)(B) should be read to apply only to pre-petition transfers across all major forms of bankruptcy.

Protecting the Pious: Why the Ministerial Exception Should Not Categorically Bar Hostile Work Environment Claims

by Jessica Daneshvar* 

Religious organizations are constitutionally protected from undue burden from the government. This protection has been extended to laws that shield employees from employer discrimination. This “ministerial exception” is an affirmative defense religious organizations utilize in response to employment discrimination claims made by ministers. The Supreme Court has found that such an exception is appropriate in a case of employee termination, however circuits have split on whether the exception creates a categorical bar against all types of employment discrimination claims, including hostile work environment claims. This Contribution argues that the ministerial exception as applied to hostile work environment claims that do not involve tangible employment action should be applied sparingly on a case-by-case basis to safeguard religious organizations from unconstitutional government interference while also protecting employee rights.

Federal Abortion Legislation: Looking to Dobbs, State Legislation, and the Commerce Clause to Chart a Path Forward

by Soleil Ball Van Zee *

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization opened the door to states individually regulating, controlling, and criminalizing abortion and abortion-related care. In the emerging state legislative patchwork, conflicts between state laws demonstrate the increasing need for federal abortion legislation to ensure uniformity and halt interstate constitutional litigation before it begins. This Contribution proposes a framework for federal abortion legislation that can protect long-standing principles of federalism in this new age.

Old Laws in Modern Times: How a 1961 Law Could Mean Game Over for Online Sports Betting

by Elizabeth Lewis*

The Federal Wire Act prohibits the use of any “wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest.” While, in practice, this law has been sparsely used to prosecute illegal betting operations that cross state or national lines, a recent wave of states legalizing online gambling has brought to light the Act’s potential applicability to all federally controlled wires, even those within a single state. This Contribution argues that the Wire Act has the potential to reach nearly all online sports gambling, and, given the clear trend towards state legalization, should be revised either to explicitly exempt gambling legalized by states, or, conversely, should be limited to apply only to illegal offshore gambling operations, which may be more difficult for states themselves to regulate.

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