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January 4, 2018

MDL v. Trump: The Puzzle of Public Law in Multidistrict Litigation

Litigation against the Trump administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the Travel Ban, multiply in federal courts around the country, an important procedural question has so far not been considered: should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases—and we suspect that, sooner rather than later, one of these parties might give MDL a try.

This Essay argues that although the MDL statute would allow for consolidation of these public-law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process, and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass-tort litigation—and, indeed, it risks harming the national tort system more generally.

November 19, 2017

The Wages of Genetic Entitlement: The Good, the Bad, and the Ugly in the Rape Survivor Child Custody Act

This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to grapple with hard cases, the RSCCA helps us see how the biological processes of reproduction are necessarily intertwined with the definition of legal parenthood.

November 18, 2017

The Fragility of the Free American Press

This Essay argues that the national discussion spurred by President Trump's treatment of the press has fallen short of capturing the true seriousness of the situation. The authors argue that in order to fully understand the critical juncture at which American press freedom now stands, we must expand the discussion beyond talk of a rogue president's aberrant attacks on the press and consider the increasingly fragile edifice on which the American free press sits. The kind of press we value and need in the United States is supported by a number of legal and nonlegal pillars. Each of these supports has weakened substantially in recent years, leaving the one remaining pillar of tradition and custom to bear more of the weight. Contrary to widespread belief, our concern should not be that Trump might be taking the first step toward crippling the power of the free press, but rather that he might be taking the final step in a process that has long been underway. 

September 29, 2017

Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy

Since the enactment of the first safe harbors and liability exemptions for online intermediaries like Google and Facebook, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging internet market. Do safe harbors for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions—often tainted by protectionist concerns—define the present intermediary liability conundrum. Today, safe harbors still hold, but secondary liability is on the rise. In its Digital Single Market Strategy, the European Commission plans to introduce sectorial legislation that would effectively erode liability exemptions for online intermediaries, especially platforms. In an attempt to close a “value gap” between rightholders and online platforms allegedly exploiting protected content, the proposal would implement filtering obligations for intermediaries and introduce neighboring rights for online uses of press publications. Meanwhile, an upcoming revision of the Audio-Visual Media Services Directive would ask platforms to put in place measures to protect minors from harmful content and to protect everyone from incitement to hatred. Finally, the EU Digital Single Market Strategy has endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. This Essay contextualizes the recent EU reform proposal within a broader move towards turning online intermediaries into internet police. This narrative builds exclusively upon governmental or content industry assumptions, rather than empirical evidence. Also, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. Apparently, the European Commission aligns its strategy for online platforms to a globalized, ongoing move towards privatization of enforcement online through algorithmic tools. This process may advance an amorphous notion of responsibility that incentivizes intermediaries' self-intervention to police allegedly infringing activities in the internet.