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K. Sabeel Rahman, Private Power, Public Values: Regulating Social Infrastructure in a Changing Economy
, 39 Cardozo L. Rev.
5 (forthcoming, 2017), available at SSRN
In the mid-2000s, digital activists spearheaded the net neutrality movement to ensure fair treatment of the customers of Internet Service Providers (ISPs), as well as to protect the companies trying to reach them. Net neutrality rules limit or ban preferential treatment; for example, they might prevent an ISP like Comcast from offering exclusive access to Facebook and its partner sites on a “Free Basics” plan. Such rules have a sad and tortuous history in the US: rebuffed under Bush, long delayed and finally adopted by Obama’s FCC, and now in mortal peril thanks to Donald Trump’s elevation of Ajit Pai to be chairman of the Commission. But net neutrality as a popular principle has had more success, animating mass protests and even comedy shows. It has also given long-suffering cable customers a way of politicizing their personal struggles with haughty monopolies.
But net neutrality activists missed two key opportunities. They often failed to explain how far the neutrality principle should extend, as digital behemoths like Google, Facebook, Apple, Microsoft, and Amazon wielded extraordinary power over key nodes of the net. Some commentators derided calls for “search neutrality” or “app store neutrality;” others saw such measures as logical next steps for a digital New Deal. Moreover, they did not adequately address key economic arguments. Neoliberal commentators insisted that the US would only see rapid advances in speed and quality of service if ISPs could recoup investment by better monetizing traffic. Progressives argued that “something is better than nothing;” a program like “Free Basics” probably benefits the disadvantaged more than no access at all.
In his Private Power, Public Values: Regulating Social Infrastructure in a Changing Economy, K. Sabeel Rahman offers a theoretical framework to address these concerns. He offers a “definition of infrastructural goods and services” and a “toolkit of public utility-inspired regulatory strategies” that is a way to “diagnose and respond to new forms of private power in a changing economy,” including powerful internet platforms. He also gives a clear sense of why the public interest in regulating large internet firms should trump investors’ arguments for untrammeled rights to profits—and demands “public options” for those unable to afford access to privately controlled infrastructure. Continue reading "Democracy Unchained"
It is a common rhetorical trope among far too many federal judges (including Supreme Court Justices) that legal scholarship is of diminishing utility to them and their work, at least in part because scholars have turned their gaze to topics too far removed from those relevant to the deliberations of contemporary jurists. Most famously, Chief Justice Roberts (who does and should know better) echoed this lament at the 2011 Fourth Circuit conference: “Pick up a copy of any law review that you see and the first article is likely to be . . . the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” The Chief Justice’s ill-informed quip may have gotten the most attention, but he is hardly alone.
There is a lot to say about this general claim. In the specific case of the Chief Justice, much of it has already been said by Orin Kerr.
But the juxtaposition of Jim Pfander’s erudite and magisterial new monograph, Constitutional Torts and the War on Terror, and the Supreme Court’s June 19 decision in Ziglar v. Abbasi, suggests a different (and more alarming) possibility: The problem is not that law professors are failing to produce scholarship of utility to contemporary judges; the problem is that the scholarship that is out there just is not getting read. How else to explain both the result and the reasoning in Abbasi—a decision deeply hostile to judge-made damages remedies for constitutional violations by federal officers, and one that is shamelessly indifferent and stunningly oblivious to the rich history and tradition of such remedies that has been well- and long-documented in the academic literature, most powerfully in Pfander’s book. Continue reading "What Abbasi Should Have Said"