"General jurisprudence" aspires to offer general theories of law. For as long as anyone can remember, contributions in the field have been organized by their answers to a single question-the relationship between law and morality-and thereby divided into paradigmatic "positivist" and "natural law" camps. But, as scholars have increasingly recognized, this way of organizing things misses something important-it is not only views on the relationship between law and morality that explain how jurispruden This Article argues that jurisprudence might rather be approached by taking stock of the theory of legal meaning that a jurisprudential account relies on. Any account of law presupposes a "theory of legal meaning"-of legal metaphysics, epistemology, and philosophy of language-with which it can make sense of basic legal concepts. Prominent jurisprudes have, throughout the twentieth century, drawn on and applied positions on these matters elsewhere in philosophy in their legal philosophy. This way of thinking about jurisprudence offers a new taxonomy of its essential disagreements. "Traditional Natural Law" theory, for instance, is better thought of as a particular theory of meaning rather than an account of the relationship between morality and legality. Both Hart and Dworkin rejected its theory of meaning and held moderate, perhaps unstable, accounts of their own, with more in common than has been appreciated. At the same time, this approach suggests a way forward-before theorizing about the relationship between "law" and "morality," it might be worth clearly reckoning with what those words could mean.
Concerns about safety on social media has recently led to calls for regulation against Big Tech companies. As Congress deliberates on the best way to approach such regulation, plaintiffs have tried to utilize current laws to hold these companies liable for content on their platforms. However, they have faced difficulties in litigating their claims due to the broad immunity given to Big Tech companies via & sect; 230 of the Communications Decency Act. Many scholars and lawmakers generally agree that & sect; 230 must be reformed in some way. Some argue for broad change, while others take a more nuanced approach. Regardless of which camp one stands in, one thing is for certain- the debate does not focus on who should make that change. Recently, the Ninth and Third Circuits created and upheld legally questionable exceptions to & sect; 230 to prevent Big Tech defendants from avoiding liability for content posted on their platforms. Although these courts were likely worried about the broad immunities & sect; 230 provided to these companies, this Note argues that their "judicial lawmaking" will have very serious unintended consequences that create confusion in the law and harm the relationship Big Tech platforms have with their users without providing meaningful redress for victims. It is imperative for the Supreme Court to intervene to prevent more appellate courts from creating their own exceptions to the statute and for Congress to fulfill its duty to amend & sect; 230 and limit the almost unqualified immunity that Big Tech companies currently possess. This Note suggests that Congress do so through a limited noticeand-takedown system.
Since Erie Railroad Co. v. Tompkins, the Supreme Court has instructed lower federal courts to follow state common law as declared by the state courts-and not to make it themselves. But starting in the middle of the twentieth century, the federal courts of appeals developed a new rule about precedent: Past circuit decisions strictly bind future circuit panels, which cannot overturn past precedent even if they disagree with it. In every circuit, this rule of prior panel precedent now applies even to past circuit decisions construing state law. This has resulted in a situation much like the one Erie sought to prevent. Federal courts today adhere to federal interpretations of state law, even when those federal-court precedents have no basis in, or have been undermined by, state-court decisions. As a result of federal-court precedent, state law as applied by federal courts now often deviates from state law as applied by state courts. In response, this Article proposes three ways to minimize the precedential effect of Erie decisions-federal-court decisions on state law. First, federal courts should liberally invoke the practice of certification: sending unclear questions of state law to the state supreme court for answers. Second, the federal circuits should decline to publish opinions that mainly deal with state law questions, depriving those opinions of precedential force. And most ambitiously, each circuit should modify its own rules about precedent, so that its decisions on pure state law questions have no precedential weight, even when included in published opinions. By leaving the creation of common law precedent to the state courts, each of these solutions would advance the aims of the Supreme Court's Erie framework.
