Volume 105

Speech Across Borders

As both governments and tech companies increasingly seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to delink or delist material in a geographically segmented way, or are global delinking and takedown orders needed to protect the underlying interests at stake? These questions have been posed in two high-profile disputes before the European Court of Justice and in litigation that has pitted Canadian and U.S. courts against one another. Meanwhile, a new form of geographically-segmented speech regulation is emerging—pursuant to which speech is limited based on who is speaking and from where, as opposed to what is being said. 

This Article examines the ways in which norms regarding speech, privacy, and a range of other rights conflict across borders, and examines the implications for territorial sovereignty and prospects for democratic control. It details the power of private-sector players in adjudicating and resolving these conflicts, the ways in which governments are seeking to harness this power on a global scale, and the broader implications for individual rights. It offers a nuanced approach that identifies the multiple competing interests at stake—recognizing both the ways in which global takedowns or delisting can, at times, be a critical means of protecting key interests, and the risk of over-censorship and forced uniformity that can result. The Article also suggests new forms of decision making and accountability to reflect the shifting power structures and increasing porousness of borders online.

Federalism, Metropolitanism, and the Problem of States

The United States has long been an urban country, but it is fast becoming a metropolitan one. Population and economic activity are now concentrated in cities and their surrounding regions. The largest twenty of these city-regions account for almost fifty-two percent of total U.S. GDP. This “metropolitan revolution” represents a fundamental challenge to our current federalism. The old federalism assumed that capital and labor are fully mobile and that subnational governments—in this case, states—will engage in competitive efforts to attract desirable investment while the federal government will assume the bulk of redistributive spending. The new federalism rejects the notion that economic growth can be attributed to interstate competition or that only central governments can effectively engage in social welfare redistribution. As economic activity becomes concentrated in cities, those cities become capable of engaging in forms of regulation and redistribution that the standard model of fiscal federalism had deemed impossible. 

Our current state-based federalism, however, fails to appropriately align capabilities with responsibilities. Instead of empowering cities, states are increasingly seeking to defund, defang, and delegitimize them. The mismatch between the prevailing sites of productive economic activity and the location of regulation and redistribution has subverted the values conventionally associated with federalism. State power is being deployed to undermine accountability, limit experimentation, and prevent the effective exercise of local self-government. One current consequence of the gap between state and city power is increased political polarization. A future consequence may be an institutional restructuring that better reflects the new geography of production and population.

What is Just Compensation?

The Supreme Court has held that “[t]he word ‘just’ in [‘just compensation’] . . . evokes ideas of ‘fairness.’” But the Court has not been able to discern how it ensures fairness. Scholars have responded with a number of novel policy proposals designed to assess a fairer compensation in takings.

This Article approaches the ambiguity as a problem of history. It traces the history of the “just compensation” clause to the English writ of ad quod damnum in search of evidence that may shed light on how the clause was intended to ensure fairness. This historical inquiry yields a striking result. The word “just” imposes a procedural requirement on compensation: a jury must set compensation for it to be just.

This historical understanding is especially important to modern law since the Supreme Court applies a historical test to determine whether the Seventh Amendment guarantees the right to a jury. This Article corrects the common misperception that juries did not determine just compensation in eighteenth-century English and colonial practice.

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