The 2020 Coronavirus Pandemic and the ensuing shutdown of private businesses -- to promote the public’s health and safety -- demonstrated the wide reach of state and local governments’ police power. Many businesses closed and many went bankrupt as various government programs failed to keep their enterprises afloat. These businesses were shut down to further the national interest in stemming a global pandemic. This is an archetypal example of regulating for the public health – preventing a direct threat that sickened hundreds of thousands of Americans. But some businesses were disproportionately hit while others flourished. Many who bore the brunt of these regulations sued, alleging their property was taken by the government without just compensation. These unfortunate businesses and individuals are unlikely to be successful, absent arbitrary action by the government or egregious circumstances. The takings clause is therefore woefully inadequate to provide what Aristotle called “distributive justice” – the equal distribution of benefits and burdens throughout society. Courts should therefore refocus the takings analysis to ensure fairness and justice.
{"title":"The Coronavirus Pandemic Shutdown and Distributive Justice: Why Courts Should Refocus the Fifth Amendment Takings Analysis","authors":"Timothy Harris","doi":"10.2139/ssrn.3619553","DOIUrl":"https://doi.org/10.2139/ssrn.3619553","url":null,"abstract":"The 2020 Coronavirus Pandemic and the ensuing shutdown of private businesses -- to promote the public’s health and safety -- demonstrated the wide reach of state and local governments’ police power. Many businesses closed and many went bankrupt as various government programs failed to keep their enterprises afloat. \u0000 \u0000These businesses were shut down to further the national interest in stemming a global pandemic. This is an archetypal example of regulating for the public health – preventing a direct threat that sickened hundreds of thousands of Americans. But some businesses were disproportionately hit while others flourished. Many who bore the brunt of these regulations sued, alleging their property was taken by the government without just compensation. These unfortunate businesses and individuals are unlikely to be successful, absent arbitrary action by the government or egregious circumstances. \u0000 \u0000The takings clause is therefore woefully inadequate to provide what Aristotle called “distributive justice” – the equal distribution of benefits and burdens throughout society. Courts should therefore refocus the takings analysis to ensure fairness and justice.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"220 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114984565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The outbreak of COVID-19 has been the topical issue amongst nations of the world for the better part of the last two months. Countries have continued to seek solutions to tackle the increasing spread of the virus which has stifled the economy world over. This has seen laws being enacted, rules and regulations made in a bid to mitigate the continued spread. Indeed, Nigeria was not left out as the government issued some directives and made regulations to be complied with by all her citizens and those residing legally in the country, these measures ranged from cessation of movement, closure of business and ban of flights from affected countries to ban of large gathering of persons. In this article the validity of these measures in relation to human rights law shall be examined, answering the question as to whether or not such measures are in breach of the rights of citizens. Also we shall critically look at matters arising as a result of the measures taken such as the limited right to food, recent brutality being perpetrated by government officials which includes members of the Nigerian Army, the Nigerian Police as well as other security agencies on persons who are in breach of the new regulations all of which affects the human rights of her citizens. In the same vein, the attendant issues caused by the limited access to COVID-19 test centers on the part of citizens shall also be appraised. Finally, recommendations shall be proposed to resolve the above problems.
{"title":"Curative Measures & Regulations by the Nigerian Government Amid COVID-19 Outbreak vis a vis the Fundamental Human Rights of Its Citizen and Matters Arising Therein","authors":"Oshoma Aduku","doi":"10.2139/ssrn.3571376","DOIUrl":"https://doi.org/10.2139/ssrn.3571376","url":null,"abstract":"The outbreak of COVID-19 has been the topical issue amongst nations of the world for the better part of the last two months. Countries have continued to seek solutions to tackle the increasing spread of the virus which has stifled the economy world over. This has seen laws being enacted, rules and regulations made in a bid to mitigate the continued spread. Indeed, Nigeria was not left out as the government issued some directives and made regulations to be complied with by all her citizens and those residing legally in the country, these measures ranged from cessation of movement, closure of business and ban of flights from affected countries to ban of large gathering of persons. In this article the validity of these measures in relation to human rights law shall be examined, answering the question as to whether or not such measures are in breach of the rights of citizens. Also we shall critically look at matters arising as a result of the measures taken such as the limited right to food, recent brutality being perpetrated by government officials which includes members of the Nigerian Army, the Nigerian Police as well as other security agencies on persons who are in breach of the new regulations all of which affects the human rights of her citizens. In the same vein, the attendant issues caused by the limited access to COVID-19 test centers on the part of citizens shall also be appraised. Finally, recommendations shall be proposed to resolve the above problems.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114432140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article focuses on a judge’s inherent authority to appoint pro bono legal counsel for civil litigants and the tension between the Model Rules of Professional Conduct and the Model Rules of Judicial Conduct. This paper is rooted in the American Bar Association’s Commission on the Future of Legal Services 2016 report, referred to as the “Future’s Report” (found at http://abafuturesreport.com). This report addresses the changing needs of the indigent population and the legal profession’s special obligation to provide accessible and affordable legal services. In addition to summarizing the findings in this report, I capitalize on the judge’s authority under ABA Model Rule 6.2 to appoint counsel to represent indigent individuals. I also address the ABA Model Code of Judicial Conduct which permits judges to encourage pro bono activities but not explicitly to appoint lawyers in indigent cases, in contrast to the Model Rules of Professional Conduct. I also discuss the moral and professional responsibility of lawyers to provide pro bono legal services.
Many scholars have argued that mandatory pro bono is unconstitutional. I offer other recommendations to increase access including adopting limited practice rules, developing pro bono appointment systems, creating incentives to encourage rural practice, and amending the Model Rules of Judicial Conduct. To that end, the article also explores the historical use of a “pettifogger,” a licensed professional who is trained and licensed to handle small, routine claims in magistrate courts. Additionally, I cover the requirements for Limited License Legal Technicians in Washington State and how other states could license non-lawyers for certain legal matters. The article analyzes other profession’s use of paraprofessionals such as in the medical profession which certifies “physician assistants” and “nurse practitioners” who provide limited patient treatment.
This is a timely discussion as several states have recently filed suit against their state bar associations challenging annual bar dues. In Fleck v. Wetch, 139 S. Ct. 590 (2018), the United States Supreme Court remanded a First Amendment challenge to the mandatory fees that attorneys pay to their state bar of North Dakota. The Court requested briefing on the effect of the U.S. Supreme Court’s decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018) in which the Court overruled precedent and concluded that requiring a monetary contribution to a union violates the member’s constitutional guarantees under the First Amendment. Other states have submitted amicus briefs so this will be an interesting issue to incorporate, even peripherally. I would like to situate this paper within this discussion since the notion of mandatory judicial appointments for indigent clients has also drawn constitutional criticism. I have argued that judges should be using their inherent authority to appoint counsel for indigent civil clients, particularly in the class of case
本文主要关注法官为民事诉讼当事人任命无偿法律顾问的固有权力，以及《职业行为示范规则》与《司法行为示范规则》之间的紧张关系。本文源于美国律师协会法律服务未来委员会2016年报告，被称为“未来报告”(可在http://abafuturesreport.com上找到)。本报告论述了贫困人口不断变化的需要和法律专业人员提供方便和负担得起的法律服务的特殊义务。除了总结本报告中的调查结果外，我还利用美国律师协会示范规则6.2规定的法官任命律师代表贫困个人的权力。我还将谈到美国律师协会的《司法行为示范守则》，该守则允许法官鼓励公益活动，但没有明确规定在贫困案件中任命律师，这与《职业行为示范规则》形成鲜明对比。我还讨论了律师提供无偿法律服务的道德和职业责任。许多学者认为强制性无偿服务是违宪的。我还提出了其他建议，包括采用有限的执业规则、发展公益预约制度、建立鼓励农村执业的激励机制，以及修订《司法行为示范规则》。为此，本文还探讨了“pettifogger”的历史用法，pettifogger是指经过培训并获得许可在地方法院处理小额日常索赔的专业人员。此外，我还介绍了华盛顿州对有限执照法律技术人员的要求，以及其他州如何为某些法律事务许可非律师。本文分析了其他行业对辅助专业人员的使用，例如在医疗行业，认证“医师助理”和“执业护士”，他们提供有限的病人治疗。这是一个及时的讨论，因为几个州最近对他们的州律师协会提起诉讼，挑战年度律师费。在Fleck诉Wetch案(139 S. Ct. 590(2018))中，美国最高法院驳回了第一修正案对律师向北达科他州律师协会支付强制性费用的质疑。本院要求就美国最高法院在Janus诉AFSCME案(138 S. Ct. 2448(2018))中判决的影响作出简要说明，该法院在该判决中推翻了先例，并得出结论认为，要求向工会提供金钱捐助违反了《第一修正案》规定的成员宪法保障。其他州已经提交了法庭之友简报，所以这将是一个有趣的问题，甚至是外围问题。我想把这篇文章放在这个讨论中，因为对贫困客户的强制性司法任命的概念也引起了宪法上的批评。我认为，法官应该利用其固有的权力为贫困民事客户指定律师，特别是在涉及住房、子女抚养和政府援助等“贫困法”问题的案件中。这一论点显然带有“民事吉迪恩”(Civil Gideon)的色彩——这种学说描述了，如果有的话，贫困的民事诉讼当事人在法律上有权聘请由国家指定并支付费用的律师。吉迪恩诉温赖特案，372 U.S. 335(1963)。
{"title":"Bring On the Pettifoggers: Revisiting the Ethics Rules, Civil Gideon, and the Role of the Judiciary","authors":"Jodi Nafzger","doi":"10.2139/ssrn.3604631","DOIUrl":"https://doi.org/10.2139/ssrn.3604631","url":null,"abstract":"This article focuses on a judge’s inherent authority to appoint pro bono legal counsel for civil litigants and the tension between the Model Rules of Professional Conduct and the Model Rules of Judicial Conduct. This paper is rooted in the American Bar Association’s Commission on the Future of Legal Services 2016 report, referred to as the “Future’s Report” (found at http://abafuturesreport.com). This report addresses the changing needs of the indigent population and the legal profession’s special obligation to provide accessible and affordable legal services. In addition to summarizing the findings in this report, I capitalize on the judge’s authority under ABA Model Rule 6.2 to appoint counsel to represent indigent individuals. I also address the ABA Model Code of Judicial Conduct which permits judges to encourage pro bono activities but not explicitly to appoint lawyers in indigent cases, in contrast to the Model Rules of Professional Conduct. I also discuss the moral and professional responsibility of lawyers to provide pro bono legal services.<br><br>Many scholars have argued that mandatory pro bono is unconstitutional. I offer other recommendations to increase access including adopting limited practice rules, developing pro bono appointment systems, creating incentives to encourage rural practice, and amending the Model Rules of Judicial Conduct. To that end, the article also explores the historical use of a “pettifogger,” a licensed professional who is trained and licensed to handle small, routine claims in magistrate courts. Additionally, I cover the requirements for Limited License Legal Technicians in Washington State and how other states could license non-lawyers for certain legal matters. The article analyzes other profession’s use of paraprofessionals such as in the medical profession which certifies “physician assistants” and “nurse practitioners” who provide limited patient treatment. <br><br>This is a timely discussion as several states have recently filed suit against their state bar associations challenging annual bar dues. In Fleck v. Wetch, 139 S. Ct. 590 (2018), the United States Supreme Court remanded a First Amendment challenge to the mandatory fees that attorneys pay to their state bar of North Dakota. The Court requested briefing on the effect of the U.S. Supreme Court’s decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018) in which the Court overruled precedent and concluded that requiring a monetary contribution to a union violates the member’s constitutional guarantees under the First Amendment. Other states have submitted amicus briefs so this will be an interesting issue to incorporate, even peripherally. I would like to situate this paper within this discussion since the notion of mandatory judicial appointments for indigent clients has also drawn constitutional criticism. I have argued that judges should be using their inherent authority to appoint counsel for indigent civil clients, particularly in the class of case","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121335022","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Congress should consider legislation to regulate the content moderation practices of platforms. Failure to act will leave platform users unprotected and will allow other countries, notably the European Union and China, to seize global leadership in yet another area of tech policy. But a law requiring content rules against the most salient kinds of harmful platform content including hate speech, terrorist material and disinformation campaigns would not pass constitutional muster under the First Amendment. In contrast a consumer protection approach to content moderation might be effective and pass First Amendment scrutiny. The Federal Trade Commission, on its own or with authorization from Congress, could treat the failure to establish and maintain a procedurally adequate content moderation program as an unfair practice. This would effectively require platforms to have a content moderation program in place that contains content rules, enforcement procedures and due process protections including disclosure, mechanisms to ask for reinstatement and an internal appeals process, but it would not mandate the substance of the platform’s content rules. It would respond to strict First Amendment scrutiny as a narrowly crafted requirement that burdens speech no more than necessary to achieve the compelling government purpose of preventing an unfair trade practice. In addition, or alternatively, the FTC might be authorized to use its deception authority to require platforms to say what they do and do what they say in connection with content moderation programs. The FTC would treat failure to disclose key elements of a content moderation program as a material omission, and the failure to act in accordance with its program as a deceptive or misleading practice. Its First Amendment defense would rest on the compelling government interest in preventing consumer deception. The unfairness version would be more effective but less likely to survive a constitutional challenge. The pure disclosure version would be less effective, but more likely to be found consistent with current First Amendment jurisprudence. One additional advantage of this consumer protection approach is that it does not require controversial modification of Section 230 immunities for platforms.
{"title":"A Consumer Protection Approach to Platform Content Moderation","authors":"Mark MacCarthy","doi":"10.2139/SSRN.3408459","DOIUrl":"https://doi.org/10.2139/SSRN.3408459","url":null,"abstract":"Congress should consider legislation to regulate the content moderation practices of platforms. Failure to act will leave platform users unprotected and will allow other countries, notably the European Union and China, to seize global leadership in yet another area of tech policy. But a law requiring content rules against the most salient kinds of harmful platform content including hate speech, terrorist material and disinformation campaigns would not pass constitutional muster under the First Amendment. In contrast a consumer protection approach to content moderation might be effective and pass First Amendment scrutiny. The Federal Trade Commission, on its own or with authorization from Congress, could treat the failure to establish and maintain a procedurally adequate content moderation program as an unfair practice. This would effectively require platforms to have a content moderation program in place that contains content rules, enforcement procedures and due process protections including disclosure, mechanisms to ask for reinstatement and an internal appeals process, but it would not mandate the substance of the platform’s content rules. It would respond to strict First Amendment scrutiny as a narrowly crafted requirement that burdens speech no more than necessary to achieve the compelling government purpose of preventing an unfair trade practice. In addition, or alternatively, the FTC might be authorized to use its deception authority to require platforms to say what they do and do what they say in connection with content moderation programs. The FTC would treat failure to disclose key elements of a content moderation program as a material omission, and the failure to act in accordance with its program as a deceptive or misleading practice. Its First Amendment defense would rest on the compelling government interest in preventing consumer deception. The unfairness version would be more effective but less likely to survive a constitutional challenge. The pure disclosure version would be less effective, but more likely to be found consistent with current First Amendment jurisprudence. One additional advantage of this consumer protection approach is that it does not require controversial modification of Section 230 immunities for platforms.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"147 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116810295","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Section 107 allows “ministers of the gospel” to exclude the value of housing benefits from income, whether provided in-kind or as a cash allowance, at a cost of approximately $9.3 billion in forgone taxes over a ten-year window. The trial court dismissed the challenge to Section 107(1), which excludes in-kind housing, on standing grounds, but that section remains relevant to the analysis of Section 107(2). Supporters argue that Section 107(2), which excludes cash allowances, comports with the First Amendment’s Establishment Clause because (1) it is part of a broad policy expressed in a number of provisions that exempts housing provided for the convenience of the employer and (2) tax exemptions do not subsidize religious actors. Alternately, they argue that Section 107(2) is permitted as an accommodation for religion because it equalizes treatment of different religious groups and avoids church/state entanglement. Finally, they claim that eliminating Section 107(2) would imperil other exemptions. Section 107 is a tax provision, and understanding how it functions within the Tax Code and differs from other facially similar provisions is critical to the constitutional analysis. Amici make four points. First, Section 107(2) differs significantly from other tax provisions that exempt housing from income and is not part of a broad housing policy that naturally includes ministers. Second, Section 107(2) subsidizes ministers, as reflected in both court decisions and the government’s own admissions. Third, Section 107(2) is not an appropriate accommodation for religion because it (1) disregards important differences in ministerial income that warrant different tax treatment, and (2) creates significantly more church/state entanglement than would the generally applicable rule. Finally, finding Section 107(2) unconstitutional would not imperil other exemptions.
{"title":"Amicus Curiae Brief of Tax Law Professors in Support of Appellees","authors":"A. Chodorow","doi":"10.2139/SSRN.3203100","DOIUrl":"https://doi.org/10.2139/SSRN.3203100","url":null,"abstract":"Section 107 allows “ministers of the gospel” to exclude the value of housing benefits from income, whether provided in-kind or as a cash allowance, at a cost of approximately $9.3 billion in forgone taxes over a ten-year window. The trial court dismissed the challenge to Section 107(1), which excludes in-kind housing, on standing grounds, but that section remains relevant to the analysis of Section 107(2). Supporters argue that Section 107(2), which excludes cash allowances, comports with the First Amendment’s Establishment Clause because (1) it is part of a broad policy expressed in a number of provisions that exempts housing provided for the convenience of the employer and (2) tax exemptions do not subsidize religious actors. Alternately, they argue that Section 107(2) is permitted as an accommodation for religion because it equalizes treatment of different religious groups and avoids church/state entanglement. Finally, they claim that eliminating Section 107(2) would imperil other exemptions. \u0000Section 107 is a tax provision, and understanding how it functions within the Tax Code and differs from other facially similar provisions is critical to the constitutional analysis. Amici make four points. First, Section 107(2) differs significantly from other tax provisions that exempt housing from income and is not part of a broad housing policy that naturally includes ministers. Second, Section 107(2) subsidizes ministers, as reflected in both court decisions and the government’s own admissions. Third, Section 107(2) is not an appropriate accommodation for religion because it (1) disregards important differences in ministerial income that warrant different tax treatment, and (2) creates significantly more church/state entanglement than would the generally applicable rule. Finally, finding Section 107(2) unconstitutional would not imperil other exemptions.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122562589","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article addresses the unsuccessful attempts to suppress free speech during the Korean War, and in particular explains the attempts to silence three reporters of alleged atrocities by United Nations forces. In the absence of carefully targeted legislation, the three individuals - Alan Winnington (a journalist), Monica Felton (a women’s movement activist) and Jack Gaster (a solicitor) - were threatened with or investigated for prosecution for treason or sedition, and Winnington was unable to renew his passport until 1968. Drawing heavily on archival sources (including MI5 files, which unusually fail to redact the identity of one of the lawyers who was reporting to Special Branch about Gaster’s activities), the article explores the threat to civil liberties from the administrative as well as the legislative and the judicial power of the state. The article concludes by drawing contemporary parallels, and highlighting the continuing relevance of the writings of Winnington, Felton and Gaster.
{"title":"Civil Liberties and the Korean War","authors":"K. Ewing, J. Mahoney, Andrew Moretta","doi":"10.1111/1468-2230.12339","DOIUrl":"https://doi.org/10.1111/1468-2230.12339","url":null,"abstract":"This article addresses the unsuccessful attempts to suppress free speech during the Korean War, and in particular explains the attempts to silence three reporters of alleged atrocities by United Nations forces. In the absence of carefully targeted legislation, the three individuals - Alan Winnington (a journalist), Monica Felton (a women’s movement activist) and Jack Gaster (a solicitor) - were threatened with or investigated for prosecution for treason or sedition, and Winnington was unable to renew his passport until 1968. Drawing heavily on archival sources (including MI5 files, which unusually fail to redact the identity of one of the lawyers who was reporting to Special Branch about Gaster’s activities), the article explores the threat to civil liberties from the administrative as well as the legislative and the judicial power of the state. The article concludes by drawing contemporary parallels, and highlighting the continuing relevance of the writings of Winnington, Felton and Gaster.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116580043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Note lays out the judicial protections granted to the traditional press and identifies new threats to non-traditional presses through the rise of third-party litigation financing for lawsuits targeting negative reporting. Part I distinguishes between libel and privacy lawsuits, explaining why one approach, especially in the digital age, can be more fruitful for plaintiffs. Part I also draws from recent Supreme Court precedent to contextualize current attitudes regarding speech and privacy. Part II analyzes two recent new media cases with troubling results: specifically, million dollar costs at best, and bankruptcy at worst. While ample protections exist for the traditional press, in light of these lawsuits, it is worth considering what more could and should be done to protect media outlets, especially the non-traditional ones. Part II also examines the chilling effect of potential billionaire-backed lawsuits. As threats from third-party litigation financiers, as well as judicial protections intended for traditional presses, leave new publishers in a precarious position, Part III advocates for a federal anti-SLAPP law as a potential solution.
{"title":"The Need for a Federal Anti-SLAPP Law in Today's Digital Media Climate","authors":"L. Bergelson","doi":"10.2139/ssrn.3168285","DOIUrl":"https://doi.org/10.2139/ssrn.3168285","url":null,"abstract":"This Note lays out the judicial protections granted to the traditional press and identifies new threats to non-traditional presses through the rise of third-party litigation financing for lawsuits targeting negative reporting. Part I distinguishes between libel and privacy lawsuits, explaining why one approach, especially in the digital age, can be more fruitful for plaintiffs. Part I also draws from recent Supreme Court precedent to contextualize current attitudes regarding speech and privacy. Part II analyzes two recent new media cases with troubling results: specifically, million dollar costs at best, and bankruptcy at worst. While ample protections exist for the traditional press, in light of these lawsuits, it is worth considering what more could and should be done to protect media outlets, especially the non-traditional ones. Part II also examines the chilling effect of potential billionaire-backed lawsuits. As threats from third-party litigation financiers, as well as judicial protections intended for traditional presses, leave new publishers in a precarious position, Part III advocates for a federal anti-SLAPP law as a potential solution.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"178 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122465828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Because of the difficulties of distinguishing friend and foe, security and insecurity, or even war and peace, terrorism appears to be an endemic and endless risk. The embedded nature of the terrorist risk appears to demand the treatment of one's neighbour as potentially friend and foe. One of the consequences is the application of 'all risks' policing measures, such as stop and search powers. The question is how the casting of the intelligence web or the application of policing powers can be used both to enhance security and to keep the faith with constitutional values.
{"title":"Neighbor Terrorism and the All-Risks Policing of Terrorism","authors":"C. Walker","doi":"10.2139/ssrn.3181269","DOIUrl":"https://doi.org/10.2139/ssrn.3181269","url":null,"abstract":"Because of the difficulties of distinguishing friend and foe, security and insecurity, or even war and peace, terrorism appears to be an endemic and endless risk. The embedded nature of the terrorist risk appears to demand the treatment of one's neighbour as potentially friend and foe. One of the consequences is the application of 'all risks' policing measures, such as stop and search powers. The question is how the casting of the intelligence web or the application of policing powers can be used both to enhance security and to keep the faith with constitutional values.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114055478","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
South Africa is often seen as one of the most successful recent instances of constitutional implementation: after decades of authoritarian, racially discriminatory rule under apartheid, its 1996 Constitution established a system of multi-party democracy and rights-based constitutionalism. In the first ten years of democracy, the African National Congress (ANC) government passed a range of transformational statutes that re-moralized the legal system and began to address the consequences of past economic exploitation and discrimination. From a new, more worker-friendly industrial relations regime, to land reform, and administrative justice, the Constitution’s vision for a just legal and political order was given concrete legislative form. To be sure, in the second decade of democracy, from around 2008, the ANC’s reputation as the driver of social and economic transformation began to decline, and the wheels have come off the South African democratic miracle to a certain extent. But the Constitution has not been substantially amended during this period, and it remains at the center of public discussion about how to restore the democratic system to health. This chapter suggests that one important explanation for this experience lies in the degree to which key actors – such as the South African Constitutional Court – have implemented constitutional transformation imperatives in ways that are sensitive to the broader political context, particularly the context of political (non-)competition or dominant-party democracy. Initially, the chapter argues, the Court adopted a restrained role that avoided direct confrontations with the ANC government, and sought to encourage legislative and executive responsibility for constitutional implementation (the first constitutional period). Over time, as the ANC became less committed to the constitutional project, the Court gradually assumed a more active role in encouraging political pluralism and accountability, both within the ANC and more broadly (the second constitutional period). Despite these efforts, the project of constitutional implementation in South Africa clearly remains incomplete. As a recent collection we edited documents, South Africa continues to grapple with problems of endemic corruption, the non-delivery of key services, and sexual and other violence. The ANC’s ongoing electoral dominance means that it is in many ways part of the problem rather than the solution. Entrenched in power for more than twenty years, the ANC has been able to take control of nominally independent state institutions and turn them to its not always benign purposes. Worse than this, overwhelming evidence is now emerging that the currently dominant faction within the ANC, with President Jacob Zuma at its head, has been involved in a systematically corrupt relationship with powerful business interests. This has disabled state organs from properly implementing constitutionally-mandated programs. In light of these developments, s
{"title":"Marking Constitutional Transitions: The Law and Politics of Constitutional Implementation in South Africa","authors":"Rosalind Dixon, T. Roux","doi":"10.2139/ssrn.3251131","DOIUrl":"https://doi.org/10.2139/ssrn.3251131","url":null,"abstract":"South Africa is often seen as one of the most successful recent instances of constitutional implementation: after decades of authoritarian, racially discriminatory rule under apartheid, its 1996 Constitution established a system of multi-party democracy and rights-based constitutionalism. In the first ten years of democracy, the African National Congress (ANC) government passed a range of transformational statutes that re-moralized the legal system and began to address the consequences of past economic exploitation and discrimination. From a new, more worker-friendly industrial relations regime, to land reform, and administrative justice, the Constitution’s vision for a just legal and political order was given concrete legislative form. To be sure, in the second decade of democracy, from around 2008, the ANC’s reputation as the driver of social and economic transformation began to decline, and the wheels have come off the South African democratic miracle to a certain extent. But the Constitution has not been substantially amended during this period, and it remains at the center of public discussion about how to restore the democratic system to health. This chapter suggests that one important explanation for this experience lies in the degree to which key actors – such as the South African Constitutional Court – have implemented constitutional transformation imperatives in ways that are sensitive to the broader political context, particularly the context of political (non-)competition or dominant-party democracy. Initially, the chapter argues, the Court adopted a restrained role that avoided direct confrontations with the ANC government, and sought to encourage legislative and executive responsibility for constitutional implementation (the first constitutional period). Over time, as the ANC became less committed to the constitutional project, the Court gradually assumed a more active role in encouraging political pluralism and accountability, both within the ANC and more broadly (the second constitutional period). Despite these efforts, the project of constitutional implementation in South Africa clearly remains incomplete. As a recent collection we edited documents, South Africa continues to grapple with problems of endemic corruption, the non-delivery of key services, and sexual and other violence. The ANC’s ongoing electoral dominance means that it is in many ways part of the problem rather than the solution. Entrenched in power for more than twenty years, the ANC has been able to take control of nominally independent state institutions and turn them to its not always benign purposes. Worse than this, overwhelming evidence is now emerging that the currently dominant faction within the ANC, with President Jacob Zuma at its head, has been involved in a systematically corrupt relationship with powerful business interests. This has disabled state organs from properly implementing constitutionally-mandated programs. In light of these developments, s","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128406033","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood over independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress. The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions. Could Congress expel Puerto Rico by giving it “independence” against its will? Conversely, do the people of Puerto Rico have a right of “accession” to statehood, even if Congress does not act? The answers are not obvious. International law, we argue, suggests that the people of Puerto Rico have a legal right to determine their own status vis-a-vis the mainland. Whether domestic law protects the same right of self determination is a more difficult question.
{"title":"Puerto Rico and the Right of Accession","authors":"Joseph Blocher, G. Gulati","doi":"10.2139/SSRN.2988102","DOIUrl":"https://doi.org/10.2139/SSRN.2988102","url":null,"abstract":"On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood over independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress. The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions. Could Congress expel Puerto Rico by giving it “independence” against its will? Conversely, do the people of Puerto Rico have a right of “accession” to statehood, even if Congress does not act? \u0000The answers are not obvious. International law, we argue, suggests that the people of Puerto Rico have a legal right to determine their own status vis-a-vis the mainland. Whether domestic law protects the same right of self determination is a more difficult question.","PeriodicalId":171535,"journal":{"name":"LSN: Rights & Liberties (Topic)","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122686387","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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