Digital Commons Network^™

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …

To Democratize Algorithms, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions increasingly employ algorithms in public sector decisionmaking. Facing public outcry about the use of such technologies, jurisdictions have begun to increase democratic participation in the processes by which algorithms are procured, constructed, implemented, used, and overseen. But what problem is the current approach to democratization meant to solve? Policymakers have tended to view the problem as the absence of public deliberation: agencies and courts often use algorithms without public knowledge or input. To redress this problem, jurisdictions have turned to deliberative approaches designed to foster transparency and public debate.

This Article contends that the current approach to democratization is …

Algorithmic Personalized Wages, Zephyr Teachout

Faculty Scholarship

The paper explores algorithmically created personalized wages: what they are, what they mean, and what we can do about them. First, it establishes a taxonomy of five different forms of algorithmic wage differentiation: productivity-based wage adjustments, wages shifted through incentive bonuses and demerits, behavioral wages, dynamic wages, and wages shifted to conduct an experiment. It argues that these techniques are likely to spread from gig work to the formal employment context.

Second, it argues that the spread of these techniques has democratic implications. They will increase economic and racial inequality. They will harm labor solidarity. Perhaps most importantly, they put …

The Possible Futures Of American Democracy, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Antipolitics And The Administrative State, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

The modern administrative state plays a vital role in governing society and the economy, but the role that politics should play in administrators’ decisions remains contested. The various regulatory and social service agencies that make up the administrative state are staffed with experts who are commonly thought to be charged with making only technocratic judgments outside the pressures of ordinary politics. In this article, we consider what it might mean for the administrative state to be antipolitical. We identify two conceptions of an antipolitical administrative state. The first of these—antipolitics as antidiscretion—holds that, in a democracy, value judgments should only …

Family Moves And The Future Of Public Education, Elizabeth Chu, James S. Liebman, Madeleine Sims, Tim Wang

Faculty Scholarship

State laws compel school-aged children to attend school while fully funding only public schools. Especially following the COVID-19 pandemic, this arrangement is under attack — from some for unconstitutionally coercing families to expose their children to non-neutral values to which they object and from others for ignoring the developmental needs of students, particularly students of color and in poverty whom public schools have long underserved. This Article argues that fully subsidized public education is constitutional as long as public schools fulfill their mission to model and commit people to liberal democratic values of tolerance and respect for all persons as …

Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos

Faculty Scholarship

This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.

In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably …

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Faculty Scholarship

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or anti-democratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

The Jury Trial Reinvented, Christopher Robertson, Michael Shammas

Faculty Scholarship

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.

Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts to begin …

What Is "United" About The United States?, Gary S. Lawson

Faculty Scholarship

Jack Balkin’s The Cycles of Constitutional Time aims, among other things, to preserve and promote what Jack regards as “democracy and republicanism,” understood as “a joint enterprise by citizens and their representatives to pursue and promote the public good.” My question is whether and how this normative project is possible in a world full of perceptions of social, political, and moral phenomena akin to the white dress/blue dress internet controversy of 2015. Even if Madison had the better of Montesquieu in 1788 (and that is questionable), the United States has grown dramatically since the founding era, in a patchwork, and …

Deep Fakes: A Looming Challenge For Privacy, Democracy, And National Security, Danielle K. Citron, Robert Chesney

Faculty Scholarship

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors. While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace …

Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, Jed H. Shugerman

Faculty Scholarship

The “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have been legitimate, if aggressive, constitutional political moves. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock out …

Dartmouth College V. Woodward And The Structure Of Civil Society, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog

Faculty Scholarship

It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic …

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment …

Sustaining Collective Self-Governance And Collective Action: A Constitutional Role Morality For Presidents And Members Of Congress, Neil S. Siegel

Faculty Scholarship

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution …

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market effi­ciency; but, I argue, closer to their heart is antistatist fear of entrench­ment …

Normcore, Jedediah Purdy

Faculty Scholarship

The proliferating "crisis-of-democracy" literature, like The Fast and the Furious franchise, has only one plot. And, like the crash-up car-chase movies, it has not let this fact slow its growth. Likely none of these books would exist—certainly none would be remotely the same—if Hillary Clinton had pulled a hundred thousand more votes out of the Midwest in 2016. All are organized around the shock of Trump's victory and allege a national and international crisis of democracy. Just what is the crisis? What is missing from these works, and the commentariat that they represent, is a genuine reckoning with twenty-first-century questions: …

Patriotic Philanthropy? Financing The State With Gifts To Government, Margaret H. Lemos, Guy-Uriel Charles

Faculty Scholarship

Federal and state law prohibit government officials from accepting gifts or “emoluments” from outside sources. The purpose of gift bans, like restrictions on more explicit forms of bribery, is to protect the integrity of political processes and to ensure that decisions about public policy are made in the public interest — not to advance a private agenda. Similar considerations animate regulations on campaign funding and lobbying. Yet private entities remain free to offer gifts to government itself, to foot the bill for particular public projects they would like to see government pursue. Such gifts — dubbed “patriotic philanthropy” by one …

Continuity And The Declaration Of Independence, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Democratic Rulemaking, John M. De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

This paper examines to what extent agency rulemaking is democratic. It reviews theories of administrative rulemaking in light of two normative benchmarks: a “democratic” benchmark based on voter preferences, and a “republican” benchmark based on the preferences of elected representatives. It then evaluates how the empirical evidence lines up in light of these two approaches. The paper concludes with a discussion of avenues for future research.

Reynolds Reconsidered, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

The Substance Of Self-Government, James E. Fleming

Faculty Scholarship

In Democratic Rights: The Substance of Self-Government, Corey Brettschneider develops an attractive and powerful conception of self-government - the value theory of democracy - that encompasses both substantive rights like privacy and procedural rights. Although he argues, following Habermas and Rawls, that substantive rights and procedural rights are "co-original," the structure of his theory may lead him to reduce the former into the latter and not fully to account for personal self-government in his conception of democratic self-government. The wages of his democratic justifications for substantive rights may be a surprising anxiety or unwarranted tension concerning judicial review protecting such …

Ethnic Power Sharing: Three Big Problems, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale

Faculty Scholarship

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. …

Dissent, Diversity, And Democracy: Heather Gerken And The Contingent Imperative Of Minority Rule, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

"Simple" Takes On The Supreme Court, Robert L. Tsai

Faculty Scholarship

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued …

Direct (Anti-)Democracy, Maxwell L. Stearns

Faculty Scholarship

Legal scholars, economists, and political scientists are divided on whether voter initiatives and legislative referendums tend to produce outcomes that are more (or less) majoritarian, efficient, or solicitous of minority concerns than traditional legislation. Scholars also embrace opposing views on which law-making mechanism better promotes citizen engagement, registers preference intensities, encourages compromise, and prevents outcomes masking cycling voter preferences. Despite these disagreements, commentators generally assume that the voting mechanism itself renders plebiscites more democratic than legislative lawmaking. This assumption is mistaken.

Although it might seem unimaginable that a lawmaking process that directly engages voters possesses fundamentally antidemocratic features, this Article …

Rule Of Law In Haiti Before And After The 2010 Earthquake, James D. Wilets, Camilo Espinosa

Faculty Scholarship

No abstract provided.

Fiduciary Law's Lessons For Deliberative Democracy, David L. Ponet, Ethan J. Leib

Faculty Scholarship

One of the ascendant understandings of democracy in contemporary political theory is that democratic societies ought to be deliberative The precise requirements for "deliberative democracy" are contested both as a matter of normative theory and institutional design; but most deliberative democrats see deliberation as essential to the legitimation of decision-making within the polity. Yet deliberative democrats have expended most of their efforts mapping what deliberation should look like at two different levels of decision-making: the deliberation among citizens themselves in exercises of direct and participatory democracy - and the deliberation among legislators or other official actors within the organs of …