The Problem of ‘Personal Precedents’ of Supreme Court Justices

from NYTs Supreme Court justices, like most people, like to appear to be consistent. No one wants to be thought to be a flip-flopper, an opportunist or a hypocrite. That means justices try not to disavow earlier legal views, even ones that appeared in dissents, in opinions they wrote as appeals court judges, in academic work, at their confirmation hearings and elsewhere. This impulse, which a provocative new article calls “personal precedent,” can be at odds with respect for precedent in the conventional sense. The force and legitimacy of such personal precedents has seldom been explored, and the rare scholars […]

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Rebuffing Cable Lobby, FCC Bans Deals That Block Competition In Apartments

from ars technica The Federal Communications Commission has voted to ban the exclusive revenue-sharing deals between landlords and Internet service providers that prevent broadband competition in apartment buildings and other multi-tenant environments. The new ban and other rule changes were adopted in a 4-0 vote announced yesterday. Although the FCC “has long banned Internet service providers from entering into sweetheart deals with landlords that guarantee they are the only provider in the building,” evidence submitted to the commission “made it clear that our existing rules are not doing enough and that we can do more to pry open the door […]

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Why Can’t We Make Women’s Equality the Law of the Land?

from NYTs Even if you are a political junkie, there’s a good chance you didn’t realize that the United States Constitution grew 58 words longer this week. Those words, which begin, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” are the text of the Equal Rights Amendment. Section 3 of the amendment states that it takes effect two years after its ratification, which happened on Jan. 27, 2020, when Virginia became the 38th state to sign on. By its own terms, then, the 28th […]

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Meta’s Failed Giphy Deal Could End Big Tech’s Spending Spree

from ars technica Instagram? Sure! WhatsApp? Go nuts. But don’t mess with GIFs. That’s the strange position taken by Britain’s competition watchdog in choosing to block Meta’s takeover of GIF repository Giphy. Meta, the UK’s Competition and Markets Authority (CMA) ruled, must now sell all the GIFs—just 19 months after it reportedly paid $400 million for them. It’s a bold move—and a global first. Never before has a tech giant been ordered to press undo on a completed deal rather than pay a fine or make promises about how the newly merged businesses would operate. Meta, the parent company of […]

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The FTC Sues Nvidia to Block Its Historic Deal With Arm

from Wired (via Ars Technica) The Federal Trade Commission has sued to block Nvidia’s acquisition of Arm, the semiconductor design firm, saying that the blockbuster deal would unfairly stifle competition. “The FTC is suing to block the largest semiconductor chip merger in history to prevent a chip conglomerate from stifling the innovation pipeline for next-generation technologies,” Holly Vedova, director of the FTC’s competition bureau, said in a statement. “Tomorrow’s technologies depend on preserving today’s competitive, cutting-edge chip markets. This proposed deal would distort Arm’s incentives in chip markets and allow the combined firm to unfairly undermine Nvidia’s rivals.” More here.

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US Gov’t Will Slap Contractors With Civil Lawsuits For Hiding Breaches

from ars technica In a groundbreaking initiative announced by the Department of Justice this week, federal contractors will be sued if they fail to report a cyber attack or data breaches. The newly introduced “Civil Cyber-Fraud Initiative” will leverage the existing False Claims Act to pursue contractors and grant recipients involved in what the DOJ calls “cybersecurity fraud.” Usually, the False Claims Act is used by the government to tackle civil lawsuits over false claims made in relation to federal funds and property connected with government programs. More here.

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An Insider from the Purdue Pharma Bankruptcy Speaks Out

from The New Yorker One day last spring, Ryan Hampton had a secret meeting with David Sackler, whose family’s company, Purdue Pharma, stood accused of helping to precipitate the opioid crisis. Hampton was the co-chair of the Official Committee of Unsecured Creditors (U.C.C.), a powerful group that represented thousands of people and entities with claims against Purdue in what was then an ongoing bankruptcy proceeding. His job was to act as a sort of watchdog, and he had access to a trove of sensitive material that Purdue and the Sacklers were compelled to turn over in discovery. Hampton was also […]

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Initial Reaction to Eastman Memo

from The Election Law Blog My first thought on reading the Eastman memo revealed yesterday was that it could wait until I do the relevant work for a planned second edition of Ballot Battles before I reflect on it in earnest. But in light of some discussion that I’ve seen on Twitter, it might be helpful to share these preliminary thoughts: Setting aside the fundamental fact that the memo outlines a strategy to overturn enough valid electoral votes to keep Trump in power for a second term that he did not lawfully win (and therefore appropriately can be considered as […]

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Google Is Getting Caught In The Antitrust Net

from ars technica Being a global company has its perks. There’s a lot of money to be made overseas. But the biggest US tech companies are finding out that there’s also a downside: every country where you make money is a country that could try to regulate you. It’s hard to keep track of all the tech-related antitrust action happening around the world, in part because it doesn’t always seem to be worth paying close attention to. In Europe, which has long been home to the world’s most aggressive regulators, Google alone was hit with a $2.7 billion fine in 2017, […]

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Beware State Surveillance Of Your Lives – Governments Can Change For The Worse

from The Guardian In the summer of 2013, shortly after Edward Snowden’s revelations about the surveillance capabilities of the American National Security Agency (NSA) began to appear, I had a private conversation with a former cabinet minister about the implications of the leaks. At one stage, I mentioned to him a remark attributed to a prime architect of some of the NSA systems – that they had taken the US to “a keystroke away from totalitarianism”. The MP scoffed at the idea. What I needed to remember, he told me, in that superior tone that toffs adopt when speaking to […]

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What the EU Gets Right—and the US Gets Wrong—About Antitrust

from Wired THERE’S A GROWING bipartisan consensus in the US to rein in the massive power accumulated by dominant tech firms. From state capitals to Congress, officials have launched multiple investigations of whether the big four of Amazon, Apple, Facebook, and Google are now forces more for harm than good and whether their size and scale demand government action to curtail them or potentially break them up. US regulators have not yet shown all their cards, but they should pause before arguing that too big equals anticompetitive, or seeking to break up or substantially restructure the tech giants. Instead, they […]

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Design Of Hiring Algorithms Can Double Diversity In Firms

from Fast Company We know that algorithms can outperform humans across an expanding range of settings, from medical diagnosis and image recognition to crime prediction. However, an ongoing concern is the potential for automated approaches to codify existing human biases to the detriment of candidates from underrepresented groups. For example, hiring algorithms use information on workers they have previously hired in order to predict which job applicants they should now select. In many cases, relying on algorithms that predict future success based on past success will lead firms to favor applicants from groups that have traditionally been successful. But this […]

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Dear Congress: Platform Accountability Should Not Threaten Online Expression

from ACLU Tomorrow, the Senate Commerce Committee is holding a hearing entitled “Does Section 230 Enable Big Tech Bad Behavior?” This is just the latest attempt by Congress and the Trump administration to amend, reinterpret, or eliminate Section 230, a key provision of federal law that generally ensures online platforms, including social media, can’t be held liable for the speech and content their users post on these platforms. This law means Yelp can’t be held legally responsible every time one of its users posts a false negative review. The Bed Bug Registry doesn’t have to visit every hotel with a […]

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Amy Coney Barrett’s Judicial Philosophy Doesn’t Hold Up to Scrutiny

from The Atlantic During her confirmation hearings, Amy Coney Barrett argued that the judicial philosophy known as “originalism” should guide judges in their interpretation and application of constitutional principles. Most famously associated with the late Justice Antonin Scalia (for whom Judge Barrett clerked), this idea sounds simple and sensible: In determining what the Constitution permits, a judge must first look to the plain meaning of the text, and if that isn’t clear, then apply what was in the minds of the 55 men who wrote it in 1787. Period. Anything else is “judicial lawmaking.” In some cases, interpreting the Constitution […]

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New Report on Police Decryption Capabilities

from Schneier on Security There is a new report on police decryption capabilities: specifically, mobile device forensic tools (MDFTs). Short summary: it’s not just the FBI that can do it. This report documents the widespread adoption of MDFTs by law enforcement in the United States. Based on 110 public records requests to state and local law enforcement agencies across the country, our research documents more than 2,000 agencies that have purchased these tools, in all 50 states and the District of Columbia. We found that state and local law enforcement agencies have performed hundreds of thousands of cellphone extractions since […]

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House Lawmakers Condemn Big Tech’s ‘Monopoly Power’ and Urge Their Breakups

from NYTs House lawmakers who spent the last 16 months investigating the practices of the world’s largest technology companies said on Tuesday that Amazon, Apple, Facebook and Google had exercised and abused their monopoly power and called for the most sweeping changes to antitrust laws in half a century. In a 449-page report that was presented by the House Judiciary Committee’s Democratic leadership, lawmakers said the four companies had turned from “scrappy” start-ups into “the kinds of monopolies we last saw in the era of oil barons and railroad tycoons.” The lawmakers said the companies had abused their dominant positions, […]

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The Plain View

from Plaintext Like any good nonfiction writer, the Majority Staff (i.e., Democrats) of the House Subcommittee on Antitrust, Commercial, and Administrative Law has produced a long-read document distinguished by deep research and an unyielding thesis: Big Tech is too big, too bad, and fights dirty. Sixteen months ago, the subcommittee set out to expose bad behavior in Silicon Valley’s top companies. Empowered with subpoenas, it had little trouble finding it. The docket of whistle-blowing witnesses and damning exhibits uncovered a litany of bullying, self-interested, anti-competitive behavior that justified the exercise, which some thought redundant because of ongoing investigations by the […]

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After Ten Years, The Google vs Oracle API Copyright Mega-Battle Finally Hit The Supreme Court

from The Register The decade-long mega-battle between two of the world’s largest corporations, which will decide the future of software development, began its final showdown this morning. Yes, it was Google versus Oracle at the US Supreme Court, and two hours of wide-ranging, fast-paced legal argument: full of analogies, pointed questions, sharp responses, and virtually no missteps – it indicated just how much is at stake. At the heart of the case is this: Android, Google’s mobile operating system installed on billions of devices that contributes to making it one of the richest and most powerful corporations on the planet. […]

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How Internet-Connected Voter Check-In Devices Can Create Election Chaos

from ars technica A federal judge in Georgia has ordered election officials to print paper backups of voter data so that voting can proceed even if the digital system for checking in voters fails. This is a win for plaintiffs who have argued that flaws in Georgia’s electronic-poll-book (EPB) system hampered voting in the June primary and could do so again in November. Over the last 20 years, a lot of discussion has revolved around the risk that electronic voting machines pose to the security and integrity of elections. But there has been less attention paid to electronic poll books—another […]

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Section 230 Is a Government License to Build Rage Machines

from Wired Facebook has been called the “ largest piece of the QAnon infrastructure.” The app has not only hosted plenty of the conspiracy group’s dark and dangerous content, it has also promoted and expanded its audience. QAnon is hardly the only beneficiary: Facebook promotes and expands the audience of militia organizers, racists, those who seek to spread disinformation to voters, and a host of other serious troublemakers. The platform’s basic business, after all, is deciding which content keeps people most engaged, even if it undermines civil society. But unlike most other businesses, Facebook’s most profitable operations benefit from a […]

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