Submitted by Caprice Roberts
This discussion group explored threshold requirements for seeking remedies. What makes certain harms cognizable? I moderated the session, and we had a lively discussion of draft articles addressing Article III standing requirements including concrete harms and other strictures for organizational standing. Of course, please check each author’s ssrn page, but for interest, here’s a summary of our discussion. Our whole conversation highlighted access to justice and the shortcomings of the foundational principle: for every wrong, the law provides a remedy. The first speaker was Professor Robert (Bob) Brain, Loyola Law School at Los Angeles. Bob analyzes complex remedies questions that lie at the heart of the virtual world. For harms, where there is no take-down remedy, yet rules of the game are violated: what is the best cause of action and the ideal remedy? These issues triggered provocative debate including whether the focus should be in-game remedies, administrative remedies, private vengeance, or judicial recourse.
Next up, Professor Linh K. Dai, Duquesne University School of Law, presented a work-in-progress that applies a social science and legal perspective to women who began as trafficking victims but become middle-manager traffickers with all the social capital trappings. Linh wonders why these women show signals of empowerment but not remorse. The article incorporates minority theory and insider/outsider paradigms to interrogate assumptions and realities of these sex trafficking patterns. Linh examines international human rights law, but also wonders whether there are other legal angles to consider including the law of remedies. This work-in-progress also stimulated vigorous discussion.
Third, the group heard from Professor Vanessa Zboreak, who recently joined Jacksonville University College of Law. Vanessa presented an ongoing project at the intersection of administrative law and the First Amendment. Her work-in-progress begins with the consequences of § 230 immunity and the parameters of carve-out legislation for those who voluntarily host content. In certain arenas, legislative overreach causes a pass-through of self-regulation that is over extensive in Vanessa’s assessment. Website companies like Only Fans interact with a host of third-party companies, and under relevant legislation on obscenity, those third-party companies like Square and Mastercard, must assess obscenity law boundaries. The instinct is to be more conservative and that causes loss of access, profits, and robust First Amendment rights. Most relevant for our discussion, what—if any—remedies lie or should lie in this context. Feedback included other potential analogies ranging from landlords, private schools, and insurance companies.
We also heard presentation of a draft article by me, Professor Caprice Roberts, joining Louisiana State University Paul M. Hebert Law Center from George Washington Law School. I presented a work-in-progress on algorithmic disgorgement as a provocative mechanism to vindicate unjust enrichment goals. The article centers on several bold moves by federal agencies including the Federal Trade Commission in the Weight Watchers case. Such disgorgement remedies provide powerful weapons in the fight against data privacy invasions and deceptive practices, but any overreach may trigger punitive concerns. The group provided rich feedback for additional angles I look forward to incorporating into the project.
Last, but certainly not least, the Remedies Discussion Group heard from a new scholar, Professor Sarah Matsumoto, Willamette University College of Law, on a draft article focusing on organizational standing in the environmental context. Sarah explained the tension between two competing judicial approaches to organizational standing. The draft examines how the distinct approaches could result in conflicting and unusual outcomes for environmental entities litigating across the federal circuits. At the heart of Sarah’s project is how to solve the jurisdictional and remedial riddle while fostering the ability of such organizations to vindicate the core rights at stake. The group appreciated hearing about Sarah’s expertise and the related research path. Feedback included ways to continue to push the normative boundaries and critically assess standing doctrine while serving the goals of the affected organizations.
The discussion wouldn’t have been so generative without the thoughtful contributions of our audience including Professor Christopher Lund, Wayne State University Law School; Professor Richard Heppner, Duquesne University School of Law; Emilio Longoria, St. Mary’s University School of Law; Professor Barbara Pfeffer Billauer, University of Porto Faculty of Law (Portugal); Professor Alveena Shah, Tulane Law School; Dean Brian Gallini, Willamette University College of Law; Professor Catherine Christopher, Texas Tech University School of Law; and always reliable for a final, thoughtful series of questions, Professor Max Hare, Regent University School of Law. We look forward to seeing these articles in print and to our next Remedies Discussion Group in Boca Raton.