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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Dedicated to Judah Marans ’11

We are incredibly grateful to the Brandeis Law Journal’s founder,
Judah, for creating this forum for discussion and learning in and
around the legal field. His creation of the Journal enables and
empowers us to do our work and learn today. We are honored to
continue this legacy and maintain this incredible and vibrant forum
for legal discussion and debate. Judah’s contribution to the Brandeis
community will forever be remembered and greatly appreciated. We
are honored to continue this legacy and maintain this incredible and
vibrant forum for legal discussion and debate. We extend our deepest
sympathies to his family and friends throughout the Brandeis
community. May his memory be a blessing.

Mission Statement

The Brandeis University Law Journal aims to provide Brandeis
University with the opportunity to contribute to discussions of law
and law-related topics with the publication of undergraduate
scholarship. We hope to aid in the furtherance of Brandeis
University’s motto of “truth even unto its innermost parts” through
publishing rigorously researched articles and engaging in respectful,
thoughtful, and insightful debates. This journal is both a publication
and a constant work in progress as we are grounded in an
undergraduate academic environment and constantly trying to learn,
grow and improve. Our journal provides a platform for intellectual
growth and debate where academic scholarship can flourish. We
focus on academic excellence, encouraging expressions of
scholarship, and encouragement of educational purposes.

Disclaimer

The contents of this publication do not necessarily reflect the views
or stances of the Brandeis University Law Journal Association nor of
the Brandeis University or of any individuals or groups associated
with either institution.

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Submissions

Our journal requires all submissions of articles and abstracts to
be:

1) Original and of concern to the Brandeis community.
2) Related to law and/or using legal reasoning.

We welcome submissions for publication at any time. We
highly encourage undergraduate scholarship. We will work
with undergraduates interested in learning about legal writing,
research, and scholarship to develop these skills.

All those interested in involvement through writing, editing, or
administrative roles are welcome.

Please send any questions, submissions, or inquires to
deislawjournal@gmail.com and visit our website at
https://brandeislawjournal.wordpress.com

2

mailto:deislawjournal@gmail.com
https://brandeislawjournal.wordpress.com


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Archive

To access the Brandeis University Law Journal Archives and
explore past and current issues, articles, as well as other
relevant information, kindly visit the Brandeis University
Library Archives at:

https://journals.library.brandeis.edu/index.php/blj

Or visit our website:

https://brandeislawjournal.wordpress.com

Brandeis University Law Journal ©2023

ISSN: 22154-4468

e-ISSN: 2836-7251

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Brandeis University Law Journal

Spring 2023 VOLUME 10 ISSUE/NO. 2

Brandeis University Law Journal ©2023

Editor-in-Chief
Gonny D. Nir

Copy Chief
Emanuel (Manny) Glinsky

Operations Manager Publisher and Treasurer
Noah Risley Peyton Gillespie

Layout Editor Library Liaison
Dalya Koller Noah Levy

Faculty Librarian Faculty Librarian
Wendy Shook Mark Paris

Faculty Advisor Faculty Advisor
Professor Rosalind Kabrhel Professor Daniel Breen

Senior Editors:
Daniel Block, Gianna Bruno, Lauren Davis, Maggie DiPierdomenico, Julia
Fair, Peyton Gillespie, Emanuel (Manny) Glinsky, Lauren Lederer, Gonny

D. Nir, Sophia Reiss, Noah Risley

Junior Editors:
Athena Bai, Alyssa Golden, Eamonn Golden, Dalya Koller, Noah Levy,

Tavorr Vaxman-Magid, Hana Miller, Vishni Samaraweera, Naomi
Stephenson, Ada Wagar, Paul Weir

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

CONTENTS

Editor-in-Chief’s Letter......................................... 6

Articles
Antitrust: What is it Good For? The Story of a
Failed Merger Between Penguin Random House
and Simon & Schuster and its Implications for the
Labor Market, Gonny Nir...................................... 7

The Russia-Ukraine Conflict: Obstacles to
Accountability, Allison Weiner............................ 37

A Game of Telephone: The Evolution of
Conspicuous Service in New York State, Zachary
Miller................................................................... 63

Op-Ed
A Restoration of Voting Rights & Humanity,
Brandon Samuels.................................................86

Senior Spotlight
Regulation: Realities and Possibilities, Sophia
Reiss.....................................................................98

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Editor-in-Chief’s Letter

Dear Reader,
Your Executive Board is proud to present the Spring 2023 issue of the

Brandeis University Law Journal. In line with our journal’s mission, this issue
features five undergraduate-penned articles exploring important legal questions.
These articles reckon with issues from the international community’s capacity to
hold nations accountable for potential war crimes to a historical review of New York
state’s conspicuous service laws, and an op-ed advancing an original super-statute
that restores voting rights to the formerly incarcerated.

The Brandeis University Law Journal is unique in two respects. It is the
first, and remains among the only, law journals in the country that is unaffiliated
with a law school; and it is written, edited, and published by undergraduate students.
As I often find myself repeating to new readers: this is a local operation. This
journal is produced by a body of dedicated undergraduates who voluntarily
contribute their scarce time to advance Brandeisian undergraduate scholarship in
national discussions concerning the law.

The production of this issue would not have been possible without the
contributions of our authors. Their hard work in writing these five articles and their
willingness to routinely revisit their work over the course of our rigorous editing
process is deserving of utmost praise. Additionally, our dedicated team of editors,
who have so generously lent their time and skill to edit these articles is vital to
maintaining the quality of writing presented in the following pages. Their
contributions are invaluable, and the Executive Board is indebted to their hard work.

The current members of the Executive Board are worthy of many thanks,
as their work in making the operations of the Journal run smoothly have made this
transitional semester much easier than it may have otherwise been. Subsequently, we
wish to thank the former members of the Executive Board, especially our former
Editor-in-Chief and Copy Chief, Sophia Reiss and Lauren Davis. We will miss your
guiding hands and are ever aware that were it not for Sophia’s determination, this
journal may have never been revived.

The Executive Board would also like to thank our faculty advisors,
Professors Breen and Kabrhel, whose expertise has been essential to keeping the
journal faithful to its original mission established by Judah Marans. Furthermore, we
thank the Student Union’s Allocation Board for contributing the funds needed to
publish our Journal.

Lastly, on a personal note, I would like to thank my Copy Chief, Emanuel
Glinsky. Manny, you are my editorial-rock. I could not do this job without you. Your
dedication to our work, trust in my leadership, and willingness to always be candid
have made me a better leader. Thank you.

Sincerely yours,

Gonny D. Nir
Editor-in-Chief

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Antitrust: What is it Good For? The Story of a Failed

Merger Between Penguin Random House and Simon &

Schuster and its Implications for the Labor Market

Gonny D. Nir1

For the last forty years, antitrust cases have largely been
argued on the basis of consumer welfare. This basis has
enabled firms to excuse practices–no matter how pernicious–if
they can show that such practices reduce prices or increase the
value of the goods and services they offer to consumers. In the
fall of 2021, the Department of Justice filed a complaint which
alleged that a proposed merger between Penguin Random
House LLC and Simon & Schuster Inc. improperly stifled
competition in the market for best-selling books and reduced
author advancements within the same market. In December of
2022, the United States District Court for the District of
Columbia enjoined the DOJ’s complaint. This article examines
the threat that monopsonies present in labor markets; it argues
that a shift in antitrust enforcers’ focus from the sell side of a
market to its buy side can bolster economic output and
empower the labor force.

I. The Details Behind the Proposed $2.2 Billion Deal

In November of 2020, Penguin Random House (PRH),
a wholly-owned subsidiary of the German media mogul
Bertelsmann SE & Co., announced its bid to acquire Simon &

1 Brandeis University Undergraduate, Class of 2025, Editor-in-Chief of the
Brandeis University Law Journal.

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Schuster Inc. (S&S) from its parent company ViacomCBS Inc.2
PRH proposed to buy S&S for $2.175 billion, a reported
“premium” against other bidders looking to purchase the
prestigious publishing house.3 At the time of the acquisition’s
announcement, PRH—itself a product of a 2013 merger
between Penguin and Random House—was, and remains to be,
the largest book publisher in the United States.4 In its
complaint filed in the District of Columbia in November of
2021, the Antitrust Division of the Department of Justice
recounted PRH’s staggering extent of market share in US
markets for best-selling books. The complaint uncovered that
in the fiscal year of 2020, PRH, through its ownership of 90
imprints,5 published over 2,000 new titles, amassing over $2.4

5 In the publishing industry, an imprint is a trade name of a smaller press
that is owned by a larger publisher. Imprints enable large publishers to
create smaller “in-house” publishers that focus on specific genres or
readership. For instance, Penguin Classics is an imprint of PRH that
specializes in printing classic works of literature.

4 Julie Bosman, “Penguin and Random House Merge, Saying Change Will
Come Slowly,” The New York Times, July 1, 2013.
https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-an
d-random-house-is-completed.html (accessed January 4, 2023).

3 Brent Kendall & Jeffrey A. Trachtenberg, “Justice Department Sues to
Block Penguin Random House’s Acquisition of Simon & Schuster,” The
Wall Street Journal, November 2, 2021.
https://www.wsj.com/articles/justice-department-sues-to-block-penguin-ran
dom-houses-acquisition-of-simon-schuster-11635866422?mod=article_inlin
e(accessed December 28, 2022).

2 Viacom CBS has, as of February 2022, merged with Paramount Inc.,
creating Paramount Global which is a subsidiary of National Amusements
Inc.; Benjamin Mullin & Jeffrey A. Trachtenberg, “Penguin Random House
Parent to Buy Simon & Schuster from ViacomCBS,” The Wall Street
Journal, November 25, 2020.
https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-bu
y-simon-schuster-from-viacomcbs-11606268232?mod=article_inline
(accessed December 27, 2022).

8

https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-and-random-house-is-completed.html
https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-and-random-house-is-completed.html
https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline
https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline
https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline
https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-buy-simon-schuster-from-viacomcbs-11606268232?mod=article_inline
https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-buy-simon-schuster-from-viacomcbs-11606268232?mod=article_inline


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

billion in total revenue in the US market.6 Consequently, as a
report by The Wall Street Journal found,7 between January and
October of the same year, PRH dominated sales in the market
for printed books, accounting for 25 percent of all printed
books sold in the US market.8

S&S, being the third-largest publisher in the United
States,9 operates over 30 imprints in the US market. The
company publishes over 1,000 new titles annually, leading it to
amass over $760 million in revenues in 2020.10 From January
to October of the same year, S&S accounted for 9.1 percent of
printed book sales in the US market, with its sellers including
some of the best-selling books of the year, such as Mary L.
Trump’s memoir Too Much and Never Enough and John
Bolton’s The Room Where it Happened: A Whitehouse
Memoir.11 Although the publishing house has enjoyed industry
prestige for decades, it has recently garnered particular praise
for its publishing streak of critically acclaimed political

11 Benjamin Mullin & Jeffrey A. Trachtenberg, “Penguin Random House
Parent to Buy Simon & Schuster from ViacomCBS.”

10 United States Department of Justice, United States v. Bertelsmann SE &
CO. KGaA, Penguin Random House, LLC, ViacomCBS, INC., and Simon
& Schuster, INC., 8.

9 The second-largest publisher in the United States market is HarperCollins,
a subsidiary of News Corp since 1987. HarperCollins accounted for 11
percent of printed books sold in the US market in the fiscal year of 2020;
Benjamin Mullin & Jeffrey A. Trachtenberg, “Penguin Random House
Parent to Buy Simon & Schuster from ViacomCBS.”

8 In addition to its US presence, PRH also operates 325 imprints in 22
countries; Benjamin Mullin & Jeffrey A. Trachtenberg, “Penguin Random
House Parent to Buy Simon & Schuster from ViacomCBS.”

7 The Journal is a wholly-owned subsidiary of News Corp.

6 United States Department of Justice, United States v. Bertelsmann SE &
CO. KGaA, Penguin Random House, LLC, ViacomCBS, INC., and Simon
& Schuster, INC., Case 1:21-cv-02886, United States District Court in for
the District of Columbia: filed 11/02/2021,
https://s.wsj.net/public/resources/documents/dojlawsuit1102.pdf (accessed
December 27, 2022), 8.

9

https://s.wsj.net/public/resources/documents/dojlawsuit1102.pdf


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

memoirs, award-winning biographies, and other best-selling
works of non-fiction.12

Subsequently, when the deal between two of the
industry’s most influential publishing houses was announced,
the Antitrust Division of the Justice Department (DOJ) quickly
moved to block the merger. Although the government’s swift
action was not entirely surprising given the size of the
proposed merger, the theories which the government deployed
to block the deal did indeed come as a surprise to many.13

II. The Legal Theories Behind the Case

A. The Consumer Welfare Standard

The theories which the government deployed to argue
against this merger notably depart from traditional antitrust
arguments used before courts. For the last forty years, the use
of the Consumer Welfare Standard (CWS) in the practices of
law and economics has dominated, and therefore framed,
debates over lawful mergers and acquisitions in courtrooms
around the country. The CWS is a measurement derived from
market analyses which assesses whether actions that a firm(s)
is apt to take within a given market—such as merging with a
competitor—will raise prices, decrease economic output, or

13 In March of 2020, after ViacomCBS announced its wish to sell S&S to
another media company, S&S CEO Jonathan Karp, wrote to one of the
publishing house’s best-selling authors,“I’m pretty sure that the Department
of Justice wouldn’t allow Penguin Random House to buy us, but that’s
assuming we still have a Department of Justice.” Needless to say, as Karp
very quickly found out, we definitely still do have a Department of Justice
and it was not pleased about the proposed merger; United States
Department of Justice, United States v. Bertelsmann SE & CO. KGaA,
Penguin Random House, LLC, ViacomCBS, INC., and Simon & Schuster,
INC, 6.

12 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 49.

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

suppress innovation within that market. The standard was
developed by a group of economists and law professors at the
University of Chicago in the 1970s; it remains the dominant
standard by which economists and antitrust lawyers assess
whether the economic consequences incurred by consumers
from a firms’ practices warrant government action.14

The CWS is anchored by two premises: that buyers
benefit from the lowering in cost of the goods or services they
consume, and that buyers benefit from an increase in the value
or quality of the products or services firms offer to them.15 The
standard effectively illustrates where inefficiencies in a market
may precipitate given a firm’s actions, but as former Federal
Trade Commissioner Christine S. Wilson wrote in a 2019
paper, “…if consumers are not harmed… antitrust agencies do
not act.”16 Under the CWS, so long as the difference between
what each consumer actually pays and their willingness to pay
for a product or service is maximized, any actions that a firm
may take, regardless of if those actions amount to the hyper
consolidation of an industry or the loss of political autonomy
among the populace, are excusable in court.17

Under the CWS, a challenged practice can only be
defeated before a court were it to either raise the price that

17 Wilson, “Welfare Standards Underlying Antitrust Enforcement: What You
Measure is What You Get,” 5.

16 Wilson, Christine S., “Welfare Standards Underlying Antitrust
Enforcement: What You Measure is What You Get,” Luncheon Keynote
Address at George Mason Law Review 22nd Annual Antitrust Symposium:
Antitrust at the Crossroads? (Arlington, VA: United States of America
Federal Trade Commission, 2019),
https://www.ftc.gov/system/files/documents/public_statements/1455663/wel
fare_standard_speech_-_cmr-wilson.pd, 2.

15 Robert Bork. The Antitrust Paradox: A Policy at War with Itself (New
York: Free Press, 1978).

14 The group most prominently consists of Professors Robert Bork and
Richard Posner from UChicago Law and Professor Milton Freedman of the
Stigler Center at UChicago School of Economics.

11

https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pd
https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pd


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

consumers would ordinarily pay for a good or service, or
depress market-wide outputs for the products or services a
market would otherwise provide to its consumers. However, in
this case, the government’s theories to block PRH and S&S’s
merger did not rely on the CWS.

B. The Government’s Theory

The DOJ argued that the proposed merger between
PRH and S&S would, in the market for best-selling books,

i) Disincentive publishers to offer superior editorial
and marketing services to prospective best-selling
authors whose publishing rights they hope to secure
and,18

ii) Depress the sum of advancements authors would
receive for selling the rights to their books to a
publisher19

a. Therefore, reducing the number (and variety) of
books published.20

Notice that the real crux behind these arguments does
not lie in a concern for the consumers of best-selling books,
rather, the concern is primarily for the writers of best-selling
books. These arguments are concerned with the laborers (i.e.,
the authors) in the market for best-selling books, notably, not
the buyers of best-sellers. The sub-argument for the second
major argument does account for the lessened volume and
variety of materials buyers (i.e., readers) will encounter, but the
subargument exists only in relation to the broader argument
regarding author advances. Advances are negotiated, up-front,

20 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 1.

19 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 2.

18 This is how publishers compete against each other.

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

quarterly21 payments that authors receive from a publisher upon
waiving the publishing rights to a work and are an author’s
primary source of revenue for a written work.22 Hence, the
sub-argument concerning a lessened quantity and variety of
published material exists only in relation to the lessened wage
authors would earn were this merger granted by the court.

The arguments the DOJ made in its complaint were
claims for the protection of a labor force, rather than a
consumer block. In an ordinary antitrust case, the government
is chiefly concerned with harms enacted upon a market when
one firm gains substantial seller market power.23 In analyzing
seller market power, the government’s chief suspicion lies with
monopolies, and whether a merger of the proposed size of PRH
and S&S would monopolize an industry.24 However, in this
case, the government was chiefly concerned with the status of a
monopsony firm and its labor market power.25 Arguments

25 Benjamin Mullin & Jeffrey A. Trachtenberg, “Penguin Random House
Parent to Buy Simon & Schuster from ViacomCBS.”

24 It should be noted here, that—in what is perhaps the most smirk-worthy
distinction in law—it is not illegal for a firm to be a monopoly under the
Sherman Act of 1890 (one of the two chief antitrust laws), but it is illegal
for one firm to monopolize an industry.

23 Market power refers to the ability of a single firm to raise the prices of its
goods or services without losing sizable sales to its competitors; Stevenson,
Betsey & Wolfers, Justin, Principles of Microeconomics 1st ed., (New
York: Worth Publishers, 2021), Chapter 14, Section 14.

22 In the DOJ’s complaint, advancements were described as how authors
“fund their writing and pay their bills.” United States Department of Justice,
United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 2.

21 Authors used to receive advancements in two payments. However, due to
the consolidation of the publishing industry, publishers have been able to
strike this schedule for payments because of increased leverage of authors’
literary agents. Instead, because of their preference to pay less upfront,
publishers prefer to spread the sum of an advancement over a series of
quarterly payments made to authors for their work; United States v.
Bertelsmann SE & CO. KGaA, Penguin Random House, LLC, ViacomCBS,
INC., and Simon & Schuster, INC., 45.

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

against monopolies are concerned with markets that are
dominated by a single seller of a good(s) or service(s), whereas
arguments against monopsonies are concerned with markets
dominated by a single buyer of a good(s) or service(s). Hence,
the peculiarity of the government’s argument in this case is that
its theory is concerned with a single buyer of labor in a market,
rather than a single buyer of goods within that market.26

For the past half-century, the publishing industry has
been subject to hyper-consolidation by five publishing houses
(the Big Five): PRH, HarperCollins, S&S, Hachette Book
Group, and Macmillan (named in descending order of market
share).27 According to Alexandra Alter, a reporter for The New
York Times, such consolidation has “completely transformed
the industry.”28 If one accepts the government’s argument, such
consolidation enables the Big Five to adversely manipulate the
conditions upon which they purchase their labor. This
argument equates monopsonist harms to monopolist harms,
looking to the labor rather than seller market to assess the
damages of a merger. The argument advances that a firm the
size of a consolidated PRH and S&S can purchase its labor at a
reduced cost without facing the risk of losing that labor to its
competitors. The government argued that a firm with this
extent of buying power in a given market is too big.

This argument is only reached because of the argument
that precedes it, one that is a more-traditional, pro-competition
argument. The government’s first major argument, that the
proposed merger would stifle competition between publishers

28 Lauren Hodges, Christopher Intagliata, & Mary Louise Kelly, “Federal
Judge Blocks Penguin Random House from Buying Simon & Schuster.”

27 Lauren Hodges, Christopher Intagliata, & Mary Louise Kelly, “Federal
Judge Blocks Penguin Random House from Buying Simon & Schuster,”
NPR, November 1, 2022,
https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-
random-house-from-buying-simon-schuster, (accessed December 28, 2022).

26 Rittenberg, Libby & Tregarthen, Timothy. Principles of Microeconomics
2nd ed., (New York: Flat World Knowledge, 2008), Ch. 14, Section 14.1.

14

https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-random-house-from-buying-simon-schuster
https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-random-house-from-buying-simon-schuster


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

to secure rights to a prospective best-seller, is much more
in-line with traditional anti-merger arguments.29 This argument
holds that a merger which would create a firm whose market
share is nearly twice the size of its strongest competitor gives
too much influence and control over the industry to one firm in
a given market.30 Such a firm, the government argues, could
unfairly guide the trajectory of industry practices in their favor,
reinforcing already high barriers of entry for new firms and
choking existing competition among even the most prominent
industry players.31

C. PRH and S&S’s Theoretical Response

In response to the government’s allegations, in their
briefs to the Court, PRH and S&S reasoned that,

i) a consolidated publishing house could have more
leverage with associated retailers such as Amazon
and other large book distributors,

ii) which would enable both authors and publishing
houses to write and publish riskier material, print a
greater quantity of content, and enlarge the house’s
distributing capacity.32

In a statement for The Journal, Lorraine Shanley, the
president of Market Partners International, a consulting firm in
the publishing industry, shared that the theory conveys that

32 Brent Kendall & Jeffrey A. Trachtenberg, “Justice Department Sues to
Block Penguin Random House’s Acquisition of Simon & Schuster.”

31 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 22; United States v.
Bertelsmann SE & CO. KGaA, Penguin Random House, LLC, ViacomCBS,
INC., and Simon & Schuster, INC., 5-6.

30 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 2.

29 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 11-17.

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

through its acquisition of S&S, PRH could make S&S’s
existing catalog more widely accessible for domestic and
international markets,33 leading to higher sales for the “book
behemoth.”34

The defendants argued that leverage against “the
behemoth that has actually dominated the publishing industry
for the past three decades [is] (and that dwarfs Penguin
Random House—or PRH/S&S, for that matter): Amazon,”35

which enables publishers to take greater risks regarding what
they publish. Securing rights to a book, especially a
prospective best-seller, is a risky and expensive process
involving two traditional avenues: auctions or private
negotiations.36 An author’s literary agent will hold an auction
for the rights to a work, where publishers gather and place their
bets for a book, hoping to out-bet their competitors by offering

36 Initial bids at book-auctions among the Big Five can start from anywhere
between $150,000 to $400,000, and catapult to well over $700,000. As
publishers experience what is coined as “auction fever,” when their peers
essentially validate their own senses regarding how much a book is worth.
Auction fever drives up the amount a book’s publishing rights are sold for,
benefiting the author and their agent; United States v. Bertelsmann SE &
CO. KGaA, Penguin Random House, LLC, ViacomCBS, INC., and Simon
& Schuster, INC., 11-14.

35 Alex Shephard, “The Penguin Random House-Simon & Schuster Merger
Has Been Blocked. What Now?” The New Republic, November 3, 202,
https://newrepublic.com/article/168444/penguin-random-house-merger-bloc
ked, (accessed December 28, 2022).

34 Chief Executive of News Corp, Robert Thomson’s words for the merger
between PRH and S&S. As was aforementioned, News Corp owns
HarperCollins, which has since shown reinterest in acquiring S&S from
ViacomCBS following the failure of its merger with PRH. Such a merger
would allot HarperCollins and S&S an estimated 20 percent of market share
in the US market for best-selling books. So, no self-interested irony on
Thompson’s end here; Benjamin Mullin & Jeffrey A. Trachtenberg,
“Penguin Random House Parent to Buy Simon & Schuster from
ViacomCBS.”

33 Brent Kendall & Jeffrey A. Trachtenberg, “Justice Department Sues to
Block Penguin Random House’s Acquisition of Simon & Schuster.”

16

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

a higher bid backed by superior marketing services such as
book tours, day-time talk show appearances by the author, and
other editorial perks that build public anticipation. These
auctions are scenes of intense competition between rival
publishing houses, making them crucial to authors looking to
make a living off of their writing. Because publishers know
that it “[only] takes one passionate editor at another imprint to
win that book away,”37 they are driven to offer more in
advancements and perks to the author for publishing rights of
the auctioned work.

Stephen King, the beloved fiction writer who publishes
through S&S, testified at trial that under his understanding of
the publishing industry, “consolidation makes it tougher and
tougher for writers to find enough money to live on.”38 The
average writer makes an estimated $20,000 annually from
publishing their work, which, as Mr. King rightly underscores,
is “well below the poverty line.”39 Literary agents also hold
private, one-on-one negotiations with prospective publishers.
Even in these private sessions, however, publishers are
cognizant of the fact that “I am negotiating exclusively, but I
always have my competition in my rearview mirror,”40 as an
agent’s foremost task is to secure the highest advancement with
the best perks for their author. Although there are “no other

40 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 13.

39 JanWolfe and Jeffrey A. Trachtenberg, “Trial Ends in Government
Challenge to Penguin Random House and Simon & Schuster Merger.”

38 Jan Wolfe and Jeffrey A. Trachtenberg, “Trial Ends in Government
Challenge to Penguin Random House and Simon & Schuster Merger,” The
Wall Street Journal, August 19, 2022.
https://www.wsj.com/articles/trial-ends-in-government-challenge-to-pengui
n-random-house-and-simon-schuster-merger-11660932615?mod=article_inl
ine (accessed December 27, 2022).

37 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 11.

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https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline
https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

market inputs,”41 publishers will often preemptively offer
agents a high advancement to entice them into doubting
whether another publisher could match or exceed their offer.42

PRH and S&S argued that the challenged merger would
create a firm whose size can adequately ensure that authors are
at liberty to write unconventional material which would
otherwise not garner high advancements in an auction or
private negotiation, thus increasing the quantity and variety of
books which get published.43 This argument rests on the
premise that backlists, which are books formerly purchased by
a publisher that still earn a profit for every print, are profitable
enough to negate any losses a publisher assumes by overpaying
for a book’s publishing rights.44 Although it should be noted
here that a book “need not earn out its entire advance for a
publisher to profit; publishers begin to profit at around 70
percent of earnout for most books.”45 PRH, for example, has
the largest backlist in the publishing industry, which is the
“most significant”46 portion of its annual revenue.

46 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 16.

45 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 16 footnote 8.

44 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 16.

43 JanWolfe and Jeffrey A. Trachtenberg, “Trial Ends in Government
Challenge to Penguin Random House and Simon & Schuster Merger.”

42 In these ways the market system, in publishing, is working exactly as it
should. Every good capitalist dreams of a market whose conditions are such
that firms (publishers) must compete (via advancements) and innovate
(through fashioning new editorial systems or offering more effective
marketing strategies) to offer the best goods and services to its consumers
(literary agents and their clientele) to gain customer loyalty and market
share. Perhaps there is hope for the market system, after all; United States v.
Bertelsmann SE & CO. KGaA, Penguin Random House, LLC, ViacomCBS,
INC., and Simon & Schuster, INC., 13-16.

41 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 13.

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Midsize competitors confirm that publishers of the Big
Five’s scale can take on riskier books or overpay for
best-sellers because of this existing source of continual
revenue.47 Hence, the capital that the Big Five have enables
them to entice authors to publish under their imprints, whilst
covering any losses they may incur from a disappointing deal.48

If one accepts the defendants arguments, a firm the size of the
proposed merger could empower authors to write more
avant-garde material without fear that a publisher would
decline to bid for the work due to the publisher’s doubts
regarding whether the investment could be recouped. A
consolidated firm has a larger distributive capacity which
enables more books with unconventional themes or plots to
circulate across markets.

III. The Opinion of the Court

The case, which was heard before circuit judge
Florence Y. Pan in the United States District Court for the
District of Columbia (D.C.),49 ultimately sided with the
government. In an economic Memorandum Opinion, Judge Pan
deduced that the merger between the defendants under Section
7 of the Clayton Act, which in relevant part reads, “[that
mergers and acquisitions whose effect] may be substantially to

49 Judge Pan assumed the former seat of now-Justice Ketanji Brown Jackson
in the United States Court of Appeals for the District of Columbia Circuit
on September 26, 2022; “Florence Y. Pan,” District of Columbia Circuit,
United States Court of Appeals, accessed January 11, 2022.
https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+
FYP.

48 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, 16.

47 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 17-20.

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lessen competition, or to tend to create a monopoly,”50 would
likely “substantially lessen competition in the market for the
publishing rights to anticipated top-selling books.”51 The
opinion deployed two primary modes of analysis to reach its
final judgment: the Baker Hughes Burden Test (1990) and the
Herfindahl-Hirschman Index (HHI).

A. The Baker Hughes Burden Test

The Baker Hughes Burden Test (or Baker Hughes as it
will be referred to henceforth) is derived from the 1990 D.C.
Circuit Court decision, United States v. Baker Hughes Inc.52

The test is used to analyze whether a merger or acquisition
between defendants would, in all likelihood, raise prices or
produce anticompetitive effects in an affected market.53

Baker Hughes has a preliminary requirement that the
government must fulfill as well as three subsequent steps:54

54 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 22.

53 Ordinarily, Baker Hughes is deployed to stop mergers or acquisitions on
the sell-side of a given market. Hence, its utility in mitigating the
monopolization of industries. However, the government’s theory in this case
is that “the combined defendants would exercise market power on the buy
side of the publishing market, i.e., monopsony…. [but] the kinship between
monopoly and monopsony suggest similar legal standards should apply to
claims of monopolization and to claims of monopsonization”; United States
v. Bertelsmann SE & CO. KGaA, Penguin Random House, LLC,
ViacomCBS, INC., and Simon & Schuster, INC., 21 footnote 13.

52 United States v. Baker Hughes Inc., 908 F.2d 981, 982-83 (D.C. 1990).

51 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 80.

50 “The Antitrust Laws,” Federal Trade Commission, accessed January 11,
2022.
https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-l
aws/antitrust-laws.

20

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

i) At the outset, the government must point to the
existence of a relevant market—followed by the
three accompanying steps:
a. By demonstrating excessive concentration

within the relevant market, the test permits the
government to “establish a prima facie55 case
and a presumption of anticompetitive effects.”56

b. The burden then shifts to the defendants to show
why non-ideal circumstances demonstrate that
merely pointing to market concentration alone is
not reliably indicative of the merger’s supposed
anticompetitive effects.

c. Finally, if the defendants succeed in rebuttal, the
burden shifts back to the government to
ultimately persuade the Court of the merger’s
undesirable effects.57

The Court found the government’s identification of the
market for anticipated best-selling books in the US satisfactory
in fulfilling the preliminary requirement for the Baker Hughes
test. Further, the Court affirmed the government’s reasoning
that hyper-consolidation within this market would result in
“lower advances for authors of such books and less favorable
contract terms”58 for the authors of best-sellers. At trial, the
defendants confirmed the merger would result in “fewer books
being published, less variety in the marketplace of ideas, and

58 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 23.

57 This so-called burden of persuasion remains with the government
throughout the duration of the case; United States v. Bertelsmann SE & CO.
KGaA, Penguin Random House, LLC, ViacomCBS, INC., and Simon &
Schuster, INC., 22.

56 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 22.

55 Meaning, on its face.

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an inevitable loss of intellectual and creative output.”59 Yet, the
defendants contest that advancement sums would decrease
following the merger. They argue that competition among
existing publishers would go unaffected and that eventually,
author advancements would actually rise because of the
merged house’s increased access to capital and continuous
revenue.60

Defining a relevant market has two components: the
government must identify the geographic market and the
product market. In this case, both parties agreed that the
relevant geographic market is that of publishing rights in the
United States. However, the parties contested the boundaries of
the product market.61 The government argued that the relevant
product market at stake was that of publishing rights to
anticipated best-selling books, being those that are expected to
generate high revenue and produce a higher advancement for
authors. Following the government’s theory, the “targeted
sellers against whom the merged defendants might lower the
prices paid”62 are authors looking to sell rights to their works.63

63 It helps to understand that in the monopsony context, “[a] submarket
exists when [buyers] can profitably [cut] prices to certain targeted [sellers]
but not to others.” Applied in this case, the submarket for best-selling
authors could reasonably exist as—if one buys the government’s
position—the consolidated parties could profitably cut the wages (i.e., the
amount paid to authors in advancements) they pay to best-selling authors,
but refrain to cut the wages of non-best-selling authors. United States v.
Bertelsmann SE & CO. KGaA, Penguin Random House, LLC, ViacomCBS,
INC., and Simon & Schuster, INC., 25.

62 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 25.

61 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 24.

60 Refer to sub-section C of the second section in this article, pp. 7-10, for a
detailed analysis of this rebuttal.

59 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 23.

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The Court primarily relied on qualitative practical indicia64 to
outline the relevant product market.65

To draw the boundaries of the relevant product market,
the Court utilized the government’s threshold of a minimum of
$250,000 (being the sum publishers pay in advances to
prospective best-selling authors).66 The Court found that books
which meet this threshold, though only making up two percent
of all book acquisitions in the US, account for 70 percent of
advance spending by publishers.67 In the market for books
which earn a minimum of $250,000 in advancements, the Big
Five comprise 91 percent of the market share, while
mid-to-small publishing houses make up the remaining nine
percent. Yet, in the market for books whose advancements are
below the $250,000 threshold, the Big Five only hold 45
percent of the market share.68 Such a difference between
market share among the Big Five and mid-to-small sized
publishing houses, alongside the common practice among
publishers, that books which do receive advances at or above
the threshold require the approval from senior members of the
house, signal the probable existence of a submarket.69

In rebuttal, the defendants argued that defining a
submarket by the price certain books garner for advances is

69 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 28.

68 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 27.

67 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 26.

66 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 26-33.

65 The Court also engages with the “hypothetical monopsonist test” on pp.
40-43 of the Memorandum Opinion. Although this discussion is worthy of
further mention, it is beyond the reach of this article’s scope and page count.

64 A term derived from the Supreme Court’s 1962 case, Brown Shoe Co. v.
United States, 370 US 294, 325 (1962), used to describe signs or situations
which render a hypothetical scenario likely.

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insufficient to firmly establish the existence of a submarket of
best-selling books. The defendants argued that “any correlation
between advance level and expected sales shows only that
books are ‘valued along a continuum.’”70 The Court was
unpersuaded by the rebuttal, underscoring that the $250,000
threshold serves as a necessary starting benchmark, which
“’support[s] the appropriateness of regarding’ anticipated
top-selling authors as a ‘distinct [seller] group’ that buyers can
target.’”71 The Court added that, in addition to the $250,000
threshold top-sellers typically meet, authors within this
submarket have unique demands regarding the reputation of the
publishers who distribute their books, the contract terms
authors receive for working with particular houses, and the
different competitive conditions these authors face due to the
substantial share the Big Five control in the market for
best-sellers.72

B. Market Concentration and HHI

Courts turn to analyses of market concentration to
determine whether the effects of a merger or acquisition would
substantially increase concentration within a given market.
Typically, markets comprised of many buyers and sellers—all

72 “It is precisely those specialized needs that make the authors of
anticipated best-selling books vulnerable to targeting for price reductions.
Publishers of anticipated top-selling books know that such authors are not
able to find adequate substitutes for publishing their books because of their
unique needs and preferences. Those publishers therefore can target authors
of anticipated top-selling books for a decrease in advances (prices) because
it is not as likely that such a price decrease will cause the publishers to lose
a book”; United States v. Bertelsmann SE & CO. KGaA, Penguin Random
House, LLC, ViacomCBS, INC., and Simon & Schuster, INC., 36 and
33-34.

71 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 32.

70 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 32.

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of which hold little to no market share or power—enjoy the
greatest degree of competition. When there are relatively few
firms competing amongst each other in a given market,
coordinated behavior aimed at reducing output and raising
profits above those of competitive thresholds is more
common.73 In the 1963 decision United States v. Philadelphia
Nat’l Bank, the Supreme Court ruled that any merger or
acquisition which results in a combined market share of at least
30 percent establishes a legal presumption that the merger
likely violates Section 7 of the Clayton Act.74

The Court found that in the market for books at or
exceeding the $250,000 threshold, PRH holds 37 percent of the
market share and S&S maintains 12 percent. Conversely, in the
market for books below the $250,000 threshold, that of
non-best sellers, PRH holds 16 percent, while S&S only hold 9
percent. Consolidated, the two houses would hold a staggering
49 percent of the market for best-selling books, which is just
over double the 24 percent market share that HarperCollins,
their direct competitor, would control.75 Considering these
statistics, it is important to note that rights to a book are sold to
the highest bidder 93 percent of the time, while 60 percent of
anticipated best-sellers (books that meet or exceed the
$250,000 threshold) include a negotiated advancement sum.76

This means that not only do the rights to a best-seller often
hinge on how much a publisher is willing to pay for them, but
also that authors use this opportunity to amass the highest
possible wage for their work. Hence, the remaining

76 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 9.

75 Hachette would own 10 percent, while Macmillan would hold nine
percent; United States v. Bertelsmann SE & CO. KGaA, Penguin Random
House, LLC, ViacomCBS, INC., and Simon & Schuster, INC., 44.

74 United States v. Philadelphia Nat'l Bank, 374 US 321 (1963).

73 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 43.

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small-to-medium independent publishers would only hold a 9
percent share of the submarket following such a merger. The
Court referred to the already “undeniable trend in
consolidation”77 within the publishing industry, along with the
substantial raise in market share the combined defendants
would hold, to justify its presumption that anticompetitive
effects would follow from a merger.

To ground its final judgment on the post-merger effects
of the market’s concentration, the Court used the
Herfindahl-Hirschman Index (HHI), a measuring tool used by
economists to evaluate the competitiveness of a market based
on the number of firms and their size in a market. By summing
the squared share of the market every firm holds within the
market, the index provides an insightful analysis regarding the
conditions of the market post-merger.78 In an HHI analysis, the
figures of the post-merger HHI and the increase in the HHI
from pre-and-post-merger indicate whether a merge or
acquisition is detrimental to competition in a given market.

Any merger that increases the HHI of a given market by
more than 200 points, with a post-merger HHI of over 2,500 is
“presumptively anticompetitive.”79 In this case, the post-merger
HHI would amount to 3,111 with an increase of 891 points.80

As the Court noted, this is “well above the threshold required
to trigger the [anticompetitive] presumption.”81 The Court
addended that in addition to this high market concentration, the
merger would also likely harm authors by eliminating the

81 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 46.

80 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 46.

79 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 46.

78 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 45.

77 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 45.

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

yields82 of the direct competition between two of the most
powerful publishers83 and increase the risk of coordinated
anticompetitive conduct between the post-merger Big Four
publishing houses.84 In settling its determinations regarding the
detrimental effects to the best-seller submarket, the Court
concluded that a merger between PRH and S&S would “distill
the Big Five to a Big Four, with an overwhelmingly dominant
top firm … controlling 49 percent of the market and dwarfing
its nearest competitor. In the newly configured market, the top
two firms … would have 74 percent market share,”85 making
price leadership and coordination between firms a serious
threat in an already highly consolidated market.

IV. Case Conclusions & the Decision’s Implications

A. The Labor Market

The government’s victory in this case is not merely a
win for the authors of best-selling books or small-to-medium
sized publishing houses who compete with the Big Five. This
victory could represent a pathway to strengthening labor
protections through existing antitrust law. While the general
public may not think of authors as traditional laborers for a
slate of sociocultural reasons, writers are ultimately laborers.

85 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 61.

84 United States v. Bertelsmann SE & CO. KGaA, Penguin Random House,
LLC, ViacomCBS, INC., and Simon & Schuster, INC., 48.

83 The government’s expert found that “PRH is S&S’s closest competitor,
and that S&S is a significant competitor to PRH… if PRH lowered
advances, between 19 and 27 percent of its authors would divert to S&S;
and that if S&S lowered advances, between 45 and 59 percent of its authors
would divert to PRH”; United States v. Bertelsmann SE & CO. KGaA,
Penguin Random House, LLC, ViacomCBS, INC., and Simon & Schuster,
INC., 50.

82 Editorial offerings and marketing techniques.

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

They participate in the labor market in the same capacity as
every other worker in the greater labor force, and this case
came down in their as well as the greater labor force’s favor.
As former DOJ antitrust lawyer Taylor Owings told The
Journal, the case “demonstrates that the DOJ is going to test
new theories in cases that focus on older industries … [this
case is] an important one for setting an agenda in the labor
space.”86

Cases which advance enforcement actions against
agreements between firms that restrain competition in labor
markets is a significant drift away from the traditional
consumer welfare notions of how antitrust law ought to be
applied.87 The high-risk strategy is emerging as influential
enforcers and scholars across the country are increasingly
concluding that practices by firms which encroach upon
workers’ ability to secure higher pay and better working
conditions are, in fact, enforceable antitrust issues.88 A panel,
hosted by New York University’s (NYU) School of Law in
May of 2022, saw scholars and enforcers discuss the challenges
and prospects of bringing these kinds of cases before courts.
Professor Steven C. Salop of Georgetown University Law
argued that the Philadelphia National Bank approach to labor

88 Karen Hoffman Lent & Kenneth Schwartz,“Expect Aggressive Antitrust
Enforcement and Novel Theories,” New York Law Journal, Vol. 267, No. 89
(2022).
https://www.skadden.com/-/media/files/publications/2022/05/expect_aggres
sive_antitrust_enforcement_and_novel_theories.pdf. 1.

87 Geoffrey A. Manne, the president of the Center for Law and Economics,
told The Journal in the response to the peculiar nature of the PRH and S&S
merger that, “labor markets just have not been the subject of much
[antitrust] litigation”; Jan Wolfe, “Key Tests Loom in 2023 for US Antitrust
Enforcers,” The Wall Street Journal, December 28, 2022.
https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enfor
cers-11672234668?cx_testId=3&cx_testVariant=cx_168&cx_artPos=1&mo
d=WTRN#cxrecs_s (accessed December 28, 2022).

86 Brent Kendall & Jeffrey A. Trachtenberg, “Justice Department Sues to
Block Penguin Random House’s Acquisition of Simon & Schuster.”

28

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https://www.skadden.com/-/media/files/publications/2022/05/expect_aggressive_antitrust_enforcement_and_novel_theories.pdf
https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testId=3&cx_testVariant=cx_168&cx_artPos=1&mod=WTRN#cxrecs_s
https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testId=3&cx_testVariant=cx_168&cx_artPos=1&mod=WTRN#cxrecs_s
https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testId=3&cx_testVariant=cx_168&cx_artPos=1&mod=WTRN#cxrecs_s


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

restraints, which regards laborers as consumer-equivalences,
blocks courts from balancing consumer benefits, such as lower
prices, against labor harms, such as decreases in wages.89

Such tactics appear viable even in the Supreme Court.
In Justice Brett Kavanaugh’s concurrence in NCAA v. Alston
(2021), he argued that defendants in antitrust suits ought not to
be able to balance anticompetitive harms in one relevant
market against the benefits deductible from another relevant
market.90 Kavanaugh wrote that “price-fixing labor is
price-fixing labor. And price-fixing labor is ordinarily a
textbook antitrust problem because it extinguishes the free
market in which individuals can otherwise obtain fair
compensation for their work.”91 Evidently, there are Justices,
even in the highest Court, that may be receptive to these
arguments. Diana Moss, president of the American Antitrust
Institute, underscored at the NYU’s Spring panel, that
regulators’ “historic neglect”92 of the effect of firms’
anticompetitive practices in the labor market is a serious issue
which requires immediate attention. Moss advanced that this
neglect has had depressive implications on the quantity of
economic output and the liberty of workers within the labor
force.93

In his most-recent book, How Antitrust Failed Workers,
Professor Eric Posner94 of the University of Chicago School of

94 In a simple twist of scholastic-fate, Professor Posner is the son of
former-professor and judge of the Ninth Circuit, Richard Posner, who was

93 Karen Hoffman Lent & Kenneth Schwartz, “Expect Aggressive Antitrust
Enforcement and Novel Theories,” 3.

92 Karen Hoffman Lent & Kenneth Schwartz, “Expect Aggressive Antitrust
Enforcement and Novel Theories,” 3.

91 National Collegiate Athletic Association v. Alston et al., (2021), 43.
90 National Collegiate Athletic Association v. Alston et al., 594 US (2021).

89 Professor Salop’s areas of expertise include trade and regulation in the
antitrust realm as well as law and economics, more broadly; Karen Hoffman
Lent & Kenneth Schwartz, “Expect Aggressive Antitrust Enforcement and
Novel Theories,” 3.

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Law, argues that firms who are permitted to engage in
monopsony behavior on the buy-side of markets, leading to an
excessive increase in market concentration, create a loss in
output and equity among workers within a given market.95

Posner concludes that, contrary to the CWS model, the savings
in labor costs does not translate to lower prices for consumers.
Instead, these savings enrich employers and shareholders
because the prices consumers pay are determined by
frameworks of the product market, not the labor market.96 By
exercising market power on the buy-side through purchasing
inputs, such as goods & services and labor, at a reduced cost,
employers are able to concentrate a market to maximize profits
and cut wages without suffering losses. Posner explains that
market concentration enables a monopsony firm to pay workers
wages between competitive and monopsony wages without
losing this labor to other competitors because of its large
holdings in the market. Hence, workers must either accept the
lessened wage, undergo expensive retraining, or retire.97

The options (or lack thereof) that workers in
monopsony markets face ultimately hurt consumers and the
economy as a whole because monopsony power enables firms
to raise the prices of goods or services by reducing output or
wages, just as in product markets. Moreover, employers within
a monopsonied market can more easily engage in explicit or
implicit collusion to decrease output by further suppressing
wages.98 By reducing labor costs through hiring fewer workers,
and paying them less-than-competitive wages, consumers end
up paying higher prices because of a decline in the production

98 Posner, How Antitrust Failed Workers, p. 77.
97 Posner, How Antitrust Failed Workers, 16-18.
96 Posner, How Antitrust Failed Workers, 23.

95 Eric Posner, How Antitrust Failed Workers (Oxford University Press:
Cambridge, UK, 2021). 23

among the leading figures in the Chicago School, and a voiceful advocate of
the Consumer Welfare Standard.

30



Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

of goods and services labor monopsonists output. Such actions
not only reduce the number of workers willing and able to
work for firms, but also reduce the quantity of economic output
firms annually contribute to the American economy.99

B. Antitrust as More than Competition and Lower Prices

for Consumers

On their podcast, Capitalisn’t, from UChicago’s Stigler
Center & Booth School of Business, economist Luigi Zingales
and journalist Bethany McLean discussed why we, as
consumers, laborers, and citizens, should support robust
antitrust enforcement. In an episode discussing the case, United
States v. Microsoft Corp.,100 Zingales and McLean advanced
the following thesis: we should support antitrust regulation not
necessarily because it benefits us economically. As in many
cases, especially in the age of the Information Economy,
antitrust regulations will not economically benefit citizens; but
we should want these regulations because they are fundamental
to securing our ideals of self-determination.101 Cases such as
the failed merger between PRH and S&S show us that
corporations which are permitted to grow, and then capture
such an enormous share of a given market, pose a threat to the
welfare of workers, the health of an economy, and, especially
in this case, the liberty of citizens to think for themselves.

101 Luigi Zingales and Bethany McLean, Capitalisn’t, podcast audio January
14, 2021,
https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitr
ust-and-big-tech.

100 US v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).

99 Eric Posner, “The Rise of the Labor-Antitrust Movement,” Competition
Policy International, November 29, 2021.
https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitr
ust-movement/ (accessed December 29, 2022).

31

https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitrust-and-big-tech
https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitrust-and-big-tech
https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitrust-movement/
https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitrust-movement/


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

The defendants in this case are two publishing houses
who publish some of the most widely read and influential
authors in the industry. PRH publishes the Obamas, John
Brown, and Danielle Steel, while S&S has published F. Scott
Fitzgerald, Bob Woodward, and Ernest Hemingway. These are
among the most influential writers and thinkers of modern
thought. Had publishers not provided the “venture capital”102

for these authors to write their ideas and circulate them through
the public sphere, the country may have never been exposed to
such critical material.103 To consumers, who are ultimately
citizens, such a threat should not be dismissed.

The power monopolists wield in labor markets have
real consequences for the economic and intellectual autonomy
of workers and ordinary citizens alike. The threat of a select
few persons in private board rooms deciding who gets to
circulate their ideas in the public sphere and under what
conditions they may do so is not to be dismissed frivolously.
Who controls the basis upon which political, economic, and
cultural issues are debated determines the trajectory of how
those issues are settled in the public arena.104 If we claim to
have deliberative, democratic ideals, then every citizen should
have the opportunity to influence how these issues are
presented and ultimately settled in the public sphere.

The case between the government and PRH and S&S
demonstrates that we, as both consumers and citizens, must

104 À la Foucault’s concept that it is not knowledge that is power, but rather,
that power is knowledge; Michel Foucault, Power/ Knowledge: Selected
Interviews & Other Writings, 1972-1977, ed. by Colin Gordon (New York:
Pantheon, Books, 1980).

103 Hence, diminishing the “breadth, depth, and diversity of our stories and
ideas,” the remarks of Assistant Attorney General of the DOJ, Jonathan
Kanter regarding the block of the merger between PRH and S&S; Brent
Kendall & Jeffrey A. Trachtenberg, “Justice Department Sues to Block
Penguin Random House’s Acquisition of Simon & Schuster.”

102 Alex Shephard, “The Penguin Random House-Simon & Schuster Merger
Has Been Blocked. What Now?”

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

come to think of antitrust as more than some brainy-economic
area of law which only focuses on advancing consumer
welfare. Rather, we must come to conceive of it as a critical
tool to bolster the strength of the broader economy and the
health of our civic society. Subsequently, antitrust enforcers
must continue to ground their arguments in equating
monopsony harms to monopoly harms to ensure that labor
markets are competitive, productive, and ethical.

33



Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Bibliography

Bork, Robert. The Antitrust Paradox: A Policy at War with
Itself. New York: Free Press 1978.

Bosman, Julie. “Penguin and Random House Merge, Saying
Change Will Come Slowly.” The New York Times. July
1, 2013.
https://www.nytimes.com/2013/07/02/business/media/
merger-of-penguin-and-random-house-is-completed.ht
ml

“Florence Y. Pan.” District of Columbia Circuit. United States
Court of Appeals.
https://www.cadc.uscourts.gov/internet/home.nsf/Conte
nt/VL+-+Judges+-+FYP.

Foucault, Michel. Power/ Knowledge: Selected Interviews &
Other Writings, 1972-1977. Edited by Colin Gordon.
New York: Pantheon, Books, 1980.

Hodges, Lauren, Intagliata, Christopher, & Kelly, Mary Louise.
“Federal Judge Blocks Penguin Random House from
Buying Simon & Schuster.” NPR. November 1, 2022.
https://www.npr.org/2022/11/01/1133375227/federal-ju
dge-blocks-penguin-random-house-from-buying-simon-
schuster.

Hoffman Lent, Karen & Schwartz, Kenneth. “Expect
Aggressive Antitrust Enforcement and Novel
Theories.” New York Law Journal. Vol. 267, No. 89
(2022).
https://www.skadden.com/-/media/files/publications/20
22/05/expect_aggressive_antitrust_enforcement_and_n
ovel_theories.pdf.

Kendall, Brent & Trachtenberg, Jeffrey A. “Justice Department
Sues to Block Penguin Random House’s Acquisition of
Simon & Schuster.” The Wall Street Journal. November
2, 2021.
https://www.wsj.com/articles/justice-department-sues-t

34

https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-and-random-house-is-completed.html
https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-and-random-house-is-completed.html
https://www.nytimes.com/2013/07/02/business/media/merger-of-penguin-and-random-house-is-completed.html
https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+FYP
https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+FYP
https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-random-house-from-buying-simon-schuster
https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-random-house-from-buying-simon-schuster
https://www.npr.org/2022/11/01/1133375227/federal-judge-blocks-penguin-random-house-from-buying-simon-schuster
https://www.skadden.com/-/media/files/publications/2022/05/expect_aggressive_antitrust_enforcement_and_novel_theories.pdf
https://www.skadden.com/-/media/files/publications/2022/05/expect_aggressive_antitrust_enforcement_and_novel_theories.pdf
https://www.skadden.com/-/media/files/publications/2022/05/expect_aggressive_antitrust_enforcement_and_novel_theories.pdf
https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

o-block-penguin-random-houses-acquisition-of-simon-s
chuster-11635866422?mod=article_inline.

Mullin, Benjamin & Trachtenberg, Jeffrey A. “Penguin
Random House Parent to Buy Simon & Schuster from
ViacomCBS.” The Wall Street Journal. November 25,
2020.
https://www.wsj.com/articles/penguin-random-house-pa
rent-near-deal-to-buy-simon-schuster-from-viacomcbs-
11606268232?mod=article_inline.

Posner, Eric. How Antitrust Failed Workers. Oxford University
Press: Cambridge, UK, 2021.

Posner, Eric. “The Rise of the Labor-Antitrust Movement,”
Competition Policy International, November 29, 2021.
https://www.competitionpolicyinternational.com/the-ris
e-of-the-labor-antitrust-movement/.

Rittenberg, Libby & Tregarthen, Timothy. Principles of
Microeconomics 2nd edition. New York: Flat World
Knowledge, 2008.

Shephard, Alex. “The Penguin Random House-Simon &
Schuster Merger Has Been Blocked. What Now?” The
New Republic. November 3, 2022.
https://newrepublic.com/article/168444/penguin-rando
m-house-merger-blocked.

Stevenson, Betsey & Wolfers, Justin. Principles of
Microeconomics 1st edition. New York: Worth
Publishers, 2021. 

“The Antitrust Laws.” Federal Trade Commission.
https://www.ftc.gov/advice-guidance/competition-guida
nce/guide-antitrust-laws/antitrust-laws.

Wilson, Christine S. “Welfare Standards Underlying Antitrust
Enforcement: What You Measure is What You Get.”
Luncheon Keynote Address at George Mason Law
Review 22nd Annual Antitrust Symposium: Antitrust at
the Crossroads? Arlington, VA: United States of
America Federal Trade Commission, 2019.

35

https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline
https://www.wsj.com/articles/justice-department-sues-to-block-penguin-random-houses-acquisition-of-simon-schuster-11635866422?mod=article_inline
https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-buy-simon-schuster-from-viacomcbs-11606268232?mod=article_inline
https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-buy-simon-schuster-from-viacomcbs-11606268232?mod=article_inline
https://www.wsj.com/articles/penguin-random-house-parent-near-deal-to-buy-simon-schuster-from-viacomcbs-11606268232?mod=article_inline
https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitrust-movement/
https://www.competitionpolicyinternational.com/the-rise-of-the-labor-antitrust-movement/
https://newrepublic.com/article/168444/penguin-random-house-merger-blocked
https://newrepublic.com/article/168444/penguin-random-house-merger-blocked
https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws
https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws


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https://www.ftc.gov/system/files/documents/public_stat
ements/1455663/welfare_standard_speech_-_cmr-wilso
n.pdf.

Wolfe, Jan. “Key Tests Loom in 2023 for US Antitrust
Enforcers.” The Wall Street Journal. December 28,
2022.
https://www.wsj.com/articles/key-tests-loom-in-2023-fo
r-u-s-antitrust-enforcers-11672234668?cx_testId=3&cx
_testVariant=cx_168&cx_artPos=1&mod=WTRN#cxre
cs_s.

Wolfe, Jan and Trachtenberg, Jeffrey A. “Trial Ends in
Government Challenge to Penguin Random House and
Simon & Schuster Merger.” The Wall Street Journal.
August 19, 2022.
https://www.wsj.com/articles/trial-ends-in-government-
challenge-to-penguin-random-house-and-simon-schuste
r-merger-11660932615?mod=article_inline.

Zingales, Luigi & McLean, Bethany. Capitalisn’t. Podcast
audio. January 14, 2021,
https://www.capitalisnt.com/episodes/microsoft-1998-v
s-google-2020-antitrust-and-big-tech.

Cases Cited

National Collegiate Athletic Association v. Alston et al., 594
US __ (2021).

United States v. Baker Hughes Inc., 908 F.2d 981, 982-83 (D.C.
Cir. 1990).

United States v. Bertelsmann SE & CO. KGaA, Penguin
Random House, LLC,

ViacomCBS, INC., and Simon & Schuster, INC., F.2d Case
1:21-cv-02886 (D.C. Cir. 2021).

United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).
United States v. Philadelphia Nat'l Bank, 374 US 321 (1963).

36

https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pdf
https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pdf
https://www.ftc.gov/system/files/documents/public_statements/1455663/welfare_standard_speech_-_cmr-wilson.pdf
https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testId=3&cx_testVariant=cx_168&cx_artPos=1&mod=WTRN#cxrecs_s
https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testId=3&cx_testVariant=cx_168&cx_artPos=1&mod=WTRN#cxrecs_s
https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testId=3&cx_testVariant=cx_168&cx_artPos=1&mod=WTRN#cxrecs_s
https://www.wsj.com/articles/key-tests-loom-in-2023-for-u-s-antitrust-enforcers-11672234668?cx_testId=3&cx_testVariant=cx_168&cx_artPos=1&mod=WTRN#cxrecs_s
https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline
https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline
https://www.wsj.com/articles/trial-ends-in-government-challenge-to-penguin-random-house-and-simon-schuster-merger-11660932615?mod=article_inline
https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitrust-and-big-tech
https://www.capitalisnt.com/episodes/microsoft-1998-vs-google-2020-antitrust-and-big-tech


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

The Russia-Ukraine Conflict: Obstacles to Accountability

Allison Weiner105

The Russia-Ukraine conflict has left much of the
international community increasingly concerned about
violations of international law and the strength of the
international legal system's ability to end impunity. With such a
young international legal system, having yet to reach its 100th
birthday, precedents are still fresh and being set with each new
case. Each investigation opened by the International Criminal
Court (ICC) encounters new uncharted territory. Using
legislation foundational to the modern international system,
this article seeks to analyze and understand the unique impact
of Russian aggression against Ukraine on the present-day
system of international law. This evaluation provides a
quasi-directive on how the international system can move
forward in the fight against international impunity.

I. Introduction

On February 24, 2022, Russian armed forces invaded
Ukraine from multiple positions along the Russian and
Belarusian borders.106 The invasion initiated over a year of
hostilities between the two nations, with no end in sight as of
this writing.107 The motivations of such an aggressive,
extensive attack have been puzzling to many in the
international community. The commitment of war crimes, as
well as violations of international law, is of increasing concern

107 Article was composed between February and March of 2023.

106 Zinets, Natalia, and Aleksandra Vasovic. “Missiles Rain Down Around
Ukraine.” Reuters, February 24, 2022.
https://www.reuters.com/world/europe/putin-orders-military-operations-ukr
aine-demands-kyiv-forces-surrender-2022-02-24/

105 Brandeis University Undergraduate, Class of 2025.

37

https://www.reuters.com/world/europe/putin-orders-military-operations-ukraine-demands-kyiv-forces-surrender-2022-02-24/
https://www.reuters.com/world/europe/putin-orders-military-operations-ukraine-demands-kyiv-forces-surrender-2022-02-24/


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as the war wages on. President Vladimir Putin’s continued
reign over Russia further exacerbates this concern, given the
volatility he brings to the region and its impact on the
international legal system of human rights and criminal
prosecution.

Ultimately, the recent conduct of the Russian
Federation continues to perplex the legal international
community. Though an “impulse for imperialism” emerging
from Russia is not necessarily unpredicted, scholars worldwide
have deemed the invasion of Ukraine “nonsensical,” thus,
leading many in the international community to question its
motivations.108 Questions regarding why Russian officials
responsible for potential breaches of international law continue
to hold positions of power remain unanswered. Scholars are
still attempting to understand the obstacles that have thus far
prevented foreign entities from holding the Russian
government accountable. This article seeks to respond to these
questions and provide a comprehensive understanding of the
issues surrounding Russian officials accountability under
international law.

II. Justification of the Invasion

With substantial Russian aggression against Ukraine
beginning with the annexation of Crimea, finalized in March

108 Rieber, Alfred. “Russian Imperialism: Popular, Emblematic,
Ambiguous.” The Russian Review 53, no. 3 (July 1994): 331–35, 332;
Guterres, Antonio. “Secretary-General’s Remarks to Press on the War in
Ukraine.” United Nations, March 2022.
https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-
generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AM
TYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3
Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA.

38

https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA
https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA
https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA
https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

2014, understanding the Russian regime’s motivations is
necessary to contextualize the 2022 invasion.109

Prompted by Euromaidan (also referred to as the
Ukrainian Revolution of Dignity), a collection of non-violent
demonstrations in Ukraine expressing pro-Western sentiment,
the annexation of the Crimean Peninsula was utilized as a
means to shield Russian Separatists from alleged Ukrainian
aggression. When acting Ukrainian president Viktor
Yanukovych paused the signing of the European Union (EU)
Association Agreement to closer align Ukraine with the EU,
demonstrations across the territory emerged. These
demonstrations protested the pause’s implications: hesitance to
ally with Europe coupled with the potential strengthening of
relations with the neighboring Russian Federation.110

These protests, favoring stronger ties to the EU,
initiated Russian aggression and continue to contextualize the
ongoing conflict between Russia and Ukraine. Through
Euromaidan, Vladimir Putin and his inner circle of Russian
officials were able to exploit domestic nationalism and launch
their moral justification campaign against Ukraine. With
cultural ties to World War II so deeply ingrained in Russian
society, the Kremlin effectively utilized the pro-Western
sentiment first expressed in Ukraine during the Revolution to
pit Russian citizens against their neighbors.111 Utilizing the

111 Often forgotten in the west is Russia’s role in the conclusion of WWII
and victory against the Nazi Party. However, domestically, Russia’s efforts
in the war have remained an incredibly strong point of pride. This has been
fully integrated into Russian society and strongly influences Russian views
of strength and bravery. Veterans of the war are understood as the pinnacle
of who a Russian should strive to be. The Nazi party is also considered a
piece of Western history considering the geographical positions of Russia

110 Zelinska, Olga. “Ukrainian Euromaidan Protest: Dynamics, Causes, and
Aftermath.” Sociology Compass 11, no. 9 (2017).

109 President of Russia. “Agreement on the Accession of the Republic of
Crimea to the Russian Federation Is Signed,” n.d.
http://en.kremlin.ru/events/president/news/20604.

39

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

legacy left by WWII, the Kremlin effectively propagandized
Ukraine as a Nazi puppet state under the control of the West, a
strategy still applied today in the effort to justify the
invasion.112 Citing the Western influence under which Nazism
developed and the colonial history of much of the Western
world, Vladimir Putin argues that the motions to align closer
with Europe, and thus, the West, invalidates the Russian history
and roots of many modern Ukrainians. Russian justification
and propaganda have embellished the invasion as a second
Great Patriotic War and redefined the nation of Ukraine as a
victim to Nazism.113 Taken together, the Kremlin actively
portrays the invasion of Ukraine as a liberation rather than an
intervention.

III. Relevant Legislation

Despite the ever-evolving state of International
Humanitarian Law (IHL) and the innumerable list of treaties
and statutes viable as a lens for investigation into Russia, the
scope of this article’s evaluation will focus on three integral
pieces of international legislation: The Charter of the United
Nations, The Geneva Conventions of 12 August 1949, and The
Rome Statute. The Charter of the United Nations (UN) forms
the foundation of the international system, housing many of the
rules and customs by which the international order operates.

113 Arseniy, “Nazism.”

112 The Kremlin complex is located in Moscow, Russia and holds the
president's main office and official residence. It is the central working venue
of the presidential administration. However, it also operates as an
international symbol of Russian power and authority; Kumankov, Arseniy.
“Nazism, Genocide, and the Threat of the Global West: Russian Moral
Justification of War in Ukraine.” Etikk I Praksis--Nordic Journal of Applied
Ethics, n.d.

and the remainder of Europe. With Ukrainians advocating for much stronger
allyship with Europe, The Kremlin began propagandizing Ukraine as falling
victim to Western Nazism.

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

The Geneva Conventions are a cornerstone in the institution of
jus in bello, the permitted conduct of parties engaged in
conflict.114 The Conventions establish explicit regulations on
permissible methods of warfare and the treatment of civilians,
combatants, and prisoners. The Rome Statute is the founding
document of the International Criminal Court (ICC), the
permanent international judiciary tasked with the criminal
prosecution of those found in violation of international law.
These three pieces of legislation establish a strong guide of
possible violations committed in Ukraine, as well as abridge
what would otherwise be a complex nexus of international laws
and regulations.

A. The Charter of the United Nations

Signed in June of 1945, the UN Charter is fundamental
to a contemporary understanding of international law and
politics. Establishing the basis for countless treaties, the
Charter instructs member countries on how to interact with one
another and establishes the preliminary mechanics that the
international organization uses to operate. In Article 2, the UN
Charter demands the recognition of all member states by
member states.115 Additionally, it obligates members to use
“pacific means” in dispute settlement and prohibits the use of
threat or force against the “territorial integrity or political
independence of any state.”116

In addition to founding the United Nations, the charter
establishes the United Nations Security Council (UNSC), one
of its several principal organs of which Russia is a permanent

116 “Charter of the United Nations.”

115 “Charter of the United Nations and Statute of the International Court of
Justice.” United Nations, June 26, 1945.

114 “International Humanitarian Law: Answers to Your Questions.”
International Committee of the Red Cross, June 2020.

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member and possesses subjective veto power.117 Having
currently cast nearly half of all vetoes in the UNSC, Russia has
a strong precedent of unbridled veto usage, particularly in cases
of genocide or war crimes; after several decades of relative
silence, the Russian Federation reemerged as a central
proponent of veto power when met with several UNSC
resolutions regarding Syria.118 Bound by their signature to the
Charter, members consent to the quasi-judicial status of the
UNSC and agree to execute, to the best of their ability,
decisions and resolutions handed down by the Council. The
Council is tasked with the maintenance of international peace
and, due to their capability to refer international concerns to the
ICC, it is the primary vehicle through which the UN and the
Court interact.

The UNSC is the most powerful of the principal organs,
being the only one capable of creating legally binding orders to
member countries. The presence of permanent members and
their power to veto resolutions as they see fit further
exemplifies the power of the Council, isolating it from the
General Assembly and other organs with less cumulative
power.

118 Security Council Report. “UN Security Council Working Methods: The
Veto,” December 2022.
https://www.securitycouncilreport.org/un-security-council-working-method
s/the-veto.php.

117 “Charter of the United Nations,” 18; It should be noted that the
permanent members of the Security Council, and thus those given veto
power were not selected arbitrarily. The UN was designed just following
WWII and deliberately granted greater influence to the Allied powers, the
victors of the war. However, the use of this veto power when reviewing
potential resolutions to be adopted by the UNSC is capricious. Any of the
five countries can veto a resolution for any number of reasons and they are
not subjected to even a preliminary of justification for their choice.

42

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B. The Geneva Conventions of August 12th, 1949

The Geneva Conventions set the standard definition for
war crimes as they are understood in IHL. With protections for
wounded combatants, prisoners of war, and civilians caught in
the crossfire of international conflict, The Conventions codify
several guidelines on the treatment of human beings during war
time. The Conventions consist of seven main bodies: four
individual conventions and three additional protocols.
Considering both brevity and relevance, this analysis will
exclusively address Convention IV and Protocol I. Codifying
the protections for civilians during war, Convention IV
addresses a multitude of civilian types in conflict and the
protections guaranteed to them by the treaty. Most notably, the
protection of civilian hospitals and medical personnel, all
children under the age of 15, women–specifically against any
forms of sexual violence–, and the prohibitions of direct harm
to any “protected persons” are listed in Articles 18(a), 24, 27,
and 32 respectively.119

Protocol 1, “relating to the protection of victims of
international armed conflicts,” further extrapolates on several
ideas presented in Convention IV and supplements areas the
fourth convention may have missed, most prevalent being
Articles 48, 35, and 51.120 Expanding on ideas presented in
Convention IV, Article 35(b) prevents the deployment of
weapons known to cause “superfluous injury and unnecessary
suffering.”121 Article 35(c) prohibits the use of warfare
intended to cause widespread or severe damage to the natural
environment.122 Aiming to provide ample protections to

122 “Protocols Additional,” 30.
121 “Protocols Additional,” 30.

120 “Protocols Additional to The Geneva Conventions of 12 August 1949.”
International Committee of the Red Cross, August 12, 1949, 1.

119 “The Geneva Conventions of 12 August 1949.” International Committee
of the Red Cross, August 12, 1949.

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civilians, Article 48 prevents combatants from directing any
operations against individuals or objects not-yet-distinguished
as military.123 Combatants are to assume civilian status until
proven otherwise. Arguably the most significant is Article 51,
which aims to provide complete and undeniable protections to
civilians. 51(1) grants “general protection against dangers
arising from military operations,” 51(2) prevents civilian
populations or individuals from being the object of military
attacks, 51(3) guarantees all protections to all civilians unless
they join the military, and 51(4) entirely outlaws
“indiscriminate attacks.”124

C. The Rome Statute

Establishing one of the several avenues for
accountability to be evaluated, The Rome Statute is the
founding document of the ICC. Tasked with the prosecution of
individuals who have committed war crimes, crimes against
humanity, the crime of genocide, and the crime of aggression,
the ICC is the only permanent international judicial body in the
world with capacity to try world leaders for their atrocities.

Importantly, the Statute establishes the standards for
each of the crimes within the Court’s jurisdiction. Article 6
defines genocide as

acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as
such: (a) Killing members of the group; (b) Causing
serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in
whole or in part; (d) Imposing measures intended to

124 “Protocols Additional,” 37.
123 “Protocols Additional,” 36.

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prevent births within the group; (e) Forcibly
transferring children of the group to another group.125

Article 7 outlines crimes against humanity as “any of
the following acts when committed as a systematic attack
directed against any civilian population: murder, forcible
transfer, imprisonment, torture, sexual violence, or other
inhumane acts of a similar character.”126 Lastly, Article 8
establishes war crimes as any grave breaches of the Geneva
Conventions or “other serious violations of the laws and
customs applicable in international armed conflict.”127

Despite confusion surrounding the jurisdiction of the ICC in
the Russia-Ukraine conflict, Article 12 outlines that with
Ukraine’s acceptance of ICC jurisdiction in 2015, the Court has
the ability to prosecute any Russian nationals convicted of
statute violations committed on Ukrainian territory.128

However, under Article 15(5), the Court is unable to charge
individuals for crimes of aggression when these individuals are
nationals of a non-member state.129 With respect to the crimes
of genocide, crimes against humanity, and war crimes, any
Russian national found responsible for their commitment in
Ukraine since the 2015 declaration are eligible to be charged
and tried by the ICC. Considering the role the Court plays in
IHL and criminal prosecution, jurisdiction is absolutely vital in
overcoming obstacles to Russian accountability.

129 “The Rome Statute," 10.

128 Klimkin, Pavlo. “Declaration of the Verkhovna Rada of Ukraine,”
September 8, 2015; “The Rome Statute.” International Criminal Court, July
1, 2022. https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.

127 “The Rome Statute,” 4-8.
126 “The Rome Statute,” 3-4.
125 “The Rome Statute,” 3.

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IV. International Law Violations

In accordance with each of the preceding treaties, with
evidence presented by various respected news outlets and the
International Independent Commission of Inquiry on Ukraine
(COI), and corroborated by a March 2023 ICC arrest warrant
for Russian officials, it is evident that violations of
international law are no longer speculatory. It should be noted
that many of the crimes are outlawed by more than one treaty,
subsequently leading to overlap, and specific criminal incidents
will not be examined. The confirmation of violations of
international law are vital, as accountability cannot be
considered without a crime having been committed.

A. COI on Ukraine

Established by the United Nations Human Rights
Council (UNHRC), the COI issued its first report on war
crimes in Ukraine on October 12th, 2022. Among offenses
mentioned in the report, “war crimes, violations of human
rights, and violations of [IHL],” were all found in Ukraine.130

Violations of Protocol I of the Geneva Conventions
include threats to use nuclear weapons, the launching of
explosives far from the frontlines causing considerable civilian
damage, the use of explosive weapons in civilian areas,
indiscriminate attacks using explosives, frivolous attacks on
civilians, and summary executions.131 Breaching Article 8(2) of
The Rome Statute, the definition of war crimes, were the
deployment of explosive weapons across civilian areas,

131 Independent International, “Report,” 6, 7, 8, 10.

130 Independent International Commission of Inquiry on Ukraine. “Report of
the Independent International Commission of Inquiry on Ukraine.” The
United Nations, October 18, 2022.
https://www.ohchr.org/sites/default/files/2022-10/A-77-533-AUV-EN.pdf.

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forcible transfers, unlawful confinement, and inhumane
treatment.132 Violations of Convention IV of the Geneva
Conventions include the torture, ill treatment, and deliberate
wounding of protected persons; the use of explosives in
civilian areas; the deliberate endangerment of civilians;
multiple commitments of sexual violence; and the lack of
respect for the life of children.133 Fundamentally, the grounds
upon which Russia waged war on Ukraine lead to the violation
of Article 2 of the UN Charter. The annexation of Crimea in
2014, the violent invasion of Ukraine in February 2022, and the
disingenuous referenda held in the Kherson, Zaporizhzhia,
Luhansk, and Donetsk regions in September 2022 each violate
the Charter.134 They disregarded the obligation to pacific
settlement, the mandated recognition of sovereignty, and the
prohibition of threats or uses of force against territorial
integrity or political independence of other states.

B. War Crimes

Regarding the war crimes, the first of several potential
arrest warrants were issued by the ICC in March 2023. The
Court officially issued an arrest warrant for President Vladimir
Vladimirovich Putin and Russian Commissioner for Children’s
Rights, Maria Alekseyevna Lvova-Belova. Putin and
Lvova-Belova have both been charged with committing war

134 Myers, Steven, and Ellen Barry. “Putin Reclaims Crimea for Russia and
Bitterly Denounces the West.” New York Times, March 18, 2014.
https://www.nytimes.com/2014/03/19/world/europe/ukraine.html; Ellyatt,
Holly. “Russian Forces Invade Ukraine.” CNBC, February 24, 2022.
https://www.cnbc.com/2022/02/24/russian-forces-invade-ukraine.html;
Ellyatt, Holly. “Fake Referendums in Occupied Ukraine Set the Stage for
Annexation — and Immense Danger for Ukraine.” CNBC, September 28,
2022.

133 Independent International, “Report,” 13, 14, 15, 16.
132 Independent International, “Report,” 6, 13, 13.

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crimes, specifically the abduction, deportation, and forced
transfer of children from occupied areas of Ukraine. With
Ukrainian officials reporting as many as 8,000 children missing
and transported to Russia, the Court asserts that both Putin and
Lvova-Belova had intimate knowledge of the alleged violation
and bear individual responsibility.135

Furthermore, the Russian Federation has been accused
of forcibly deporting children to Russia, implementing simple
and rapid avenues to “citizenship,” and placing Ukrainian
children up for Russian adoption.136 As this measure works to
strip Ukrainian children of their national and ethnic identities,
the primary concern is its role as a potential step towards the
ethnic cleansing and genocide of the Ukrainian people.

C. Concluding Notes

To conclude this segment of the evaluation, it is vital to
comprehend the meaning of these blatant violations. Between
the work of journalists and international investigations, it is
undeniable that an array of war crimes and violations of IHL
have been committed on Ukrainian territory. Even more so, the
impact of these breaches on the Ukrainian people have been
unfathomable. The blood of thousands is on the hands of the
Russian government, critical infrastructure has been decimated,

136 Deeb, Shvets, and Tilna, “How Moscow.”

135 Deeb, Sarah, Anastasiia Shvets, and Elizaveta Tilna. “How Moscow
Grabs Ukrainian Kids and Makes Them Russians.” AP News, March 17,
2023.
https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c
1ac7986d85ef6; International Criminal Court. “Situation in Ukraine: ICC
Judges Issue Arrest Warrants against Vladimir Vladimirovich Putin and
Maria Alekseyevna Lvova-Belova,” n.d.
https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warra
nts-against-vladimir-vladimirovich-putin-and.

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https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c1ac7986d85ef6
https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c1ac7986d85ef6
https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and
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and millions have been displaced.137 Regardless of whether
Vladimir Putin and other Russian officials are held
accountable, Ukraine will spend years, if not decades,
recovering from the devastation left by Putin's Regime.

V. Obstacles to Accountability

Contextually evaluating legal accountability pertaining
to the Russia-Ukraine conflict implies three primary avenues,
and subsequently, the obstacles within each: The UNSC, the
ICC, and the role of free will within an anarchical system. The
UNSC’s ultimate purpose is the maintenance of international
peace, while the ICC’s is criminal prosecution; free will and its
relationship with anarchy is integral to the most preliminary of
understandings on international law and politics. A thorough
evaluation of each within the context of the Russia-Ukraine
conflict provides for a nuanced understanding of obstacles to
accountability.

A. The UNSC

Russia holds one of the five permanent seats on the
UNSC and, as such, possesses veto power over any potential
resolutions that come before the Council.138 Ultimately, this
grants a great deal of freedom and impunity not only to Russia,
but to essentially any of the permanent members.

Prima facie, a step similar to that taken by the UNHRC,
the suspension of the Russian Federation seems to be in order.
However, a suspension is neither judicially effective for

138 “Charter of the United Nations,” 18.

137 Cooper, Helene, Eric Schmitt, and Thomas Gibbons-Neff. “Soaring
Death Toll Gives Grim Insight Into Russian Tactics.” New York Times,
February 2, 2023.
https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.h
tml.

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https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.html
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Ukraine nor exactly plausible. A suspension would result in
removal from the UNSC, while an expulsion indicates the
state’s removal from the entirety of the UN. Russia holding one
of the five permanent seats on the security council makes both
of these options virtually impossible due to any suspension or
expulsion requiring all five security council seat sign offs,
requiring Russia to approve of their own ramifications.

Due to the impossibility of Russian suspension or
expulsion, it is clear that the UN Charter failed to consider the
potentially dangerous ramifications of establishing the UNSC
in this way. Ultimately, suspension of a member state from the
Council is not mentioned anywhere in the Charter. However,
the UNSC and its permanent members are explicitly
established by Article 23(1).139 This indicates the necessity of
an amendment to alter the permanent seats of the UNSC in any
way, shape, or form; which leads to Article 108, mandating the
approval of all five permanent council members to bring a
proposed amendment into force.140 Given that this requires
Russia to sign their own death certificate, removal from the
UNSC is not a presently viable option. Regarding expulsion
from the UN altogether, it is a similarly grim situation. As
stated in Article 6, “a member of the United Nations…may be
expelled…upon the recommendation of the security
council.”141 Consistent with a potential suspension from the
UNSC, a complete expulsion would require Russian approval.

Additionally, there is an argument to be made about the
efficacy of an expulsion or suspension from UN activities in
bringing the Russian Federation to justice. Due to the
anarchical nature of the international order, and widely
respected foundational principles like “consent of the
governed,” a given nation can only be held responsible for
violations of a treaty they have signed. Russia cannot be held to

141 “Charter of the United Nations,” 8.
140 “Charter of the United Nations,” 69.
139 “Charter of the United Nations.”

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UN standards, penalized for violations of the organization’s
charter, or legally bound by its mandates if it is no longer a
member state. Suspension from the UNSC could very well lead
to a voluntary exit from the organization, while an
assembly-led expulsion would make accountability even more
challenging.

To fully evaluate the Security Council, it is crucial to
consider the potential outcome had Russia not vetoed the
UNSC resolution regarding their troops in Ukraine, despite the
situation's hypothetical nature. Corroborated by the realist
paradigm of international relations, a veto is merely a formal
process of informing the other permanent members that a state
does not intend to abide by a given resolution.142 In turn,
Russia’s veto of the February mandate, calling for Moscow to
remove all troops from Ukraine, simply informs council
members that it has every intention of keeping its troops in
place.

However, what if Russia did not possess veto power?
What if such a resolution was passed? Realism asserts that hard
power (i.e. military strength) is foundational to legitimacy.
States act according to their own self-interest. Hence, only
military strength or threats can change such behavior.
Considering the atrocities committed in Ukraine since then, it
is fair to say that it would have taken enemy boots on the
ground, actively pushing the Russians out of Ukrainian
territory, to change the Kremlin’s position.

The UN does not have enough coercive capacity on its
own to enforce mandates by the UNSC; it relies on the

142 One of the three paradigms of international relations, the realist paradigm
stresses the importance of anarchy and hard power in the international order.
Anarchy refers not to chaos but to the lack of a universal, international
governing body, and hard power refers to tangible resources, most often the
economy and military strength. Due to the size and strength of both the
Russian military and economy, the realist paradigm asserts that there is no
force capable of coercing The Kremlin to behave in a specific way.

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manpower of its largest member states to keep the rest in line.
The Security Council, an institution designed for the
preservation of international peace, inherently awards impunity
to the Allied Powers of WWII. The lack of checks on the
power of permanent members breeds a power dynamic in
which there is no method of enforcing punishment on the
largest, and subsequently most powerful member states. The
Security Council’s necessity to the functionality of the UN
elevates the status of the council. Furthermore, the lack of
independent UN coercive capabilities only reinforces the idea
first proposed in the Peloponnesian war, that “the strong will
do what they can and the weak suffer what they must.”143

B. The ICC

The ICC is responsible for prosecuting individuals
found in violation of international law. However, bureaucracy,
enforcement mechanisms, and dwindling legitimacy hinder the
abilities of the Court to do so.

Bureaucracy generally slows various processes and
those of the ICC are no exception. Despite not necessarily
minimizing the courts physical capabilities to charge guilty
Russian officials, the bureaucratic processes by which the court
operates can take years, if not decades. The International
Criminal Tribunal for the Former Yugoslavia (ICTY) closed
over ten years following their issuance of the final
indictments.144 The ICTY was open for a total of twenty-four

144 Zhou, Han-Ru. “The Enforcement of Arrest Warrants by International
Forces.” Journal of International Criminal Justice 4, no. 2 (2006): 202–18;
Legacy Website of the ICTY. “ICTY Marks Official Closure with Moving
Ceremony in The Hague.” Archive. Accessed November 29, 2022.

143 Art, Robert, and Robert Jervis. “Anarchy and Its Consequences.” In
International Politics: Enduring Concepts and Contemporary Issues, 13th
ed. Pearson Education, Inc., 2016.

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years and delivered a total of 161 sentences.145 There is no
reason to presume an ICC prosecution of Putin and other
responsible officials would take any less time. The pace at
which these trials move guarantees that thousands of
Ukrainians would likely die before seeing any justice or
reparations for all they have endured at the hands of Russian
officials. Additionally, Article 63(1) poses a large enforcement
barrier to the ICC because it obligates the Court to have the
suspect in custody prior to conducting the trial.146 It should be
clarified that the following analysis in no way intends to make
a statement on the rights awarded to individuals accused of a
crime or assert that due process should be removed from the
protocols by which the ICC abides. However, lacking an
independent law enforcement agency, this mandate objectively
disrupts the Court’s ability to bring those guilty of international
atrocities to justice, and brings the legitimacy of the Court into
question. As seen with the ICTY, if the ICC is forced to rely on
multinational forces, the legitimacy of the court as an
independent entity is questionable.147

With the ICTY, and the ICC trial regarding Darfur,
Sudan, the international community has illustrated hesitance to
enforce arrest warrants issued by the Court.148 In multiple cases,

148 Sharp, Walter. “International Obligations to Search For and Arrest War
Criminals: Government Failure in the Former Yugoslavia.” Duke Journal of
Comparative and International Law, 1997, 411–60; Chazal, Nerida. The
International Criminal Court and Global Social Control: International
Criminal Justice in Late Modernity. Routledge, n.d. Accessed September
21, 2022; Beginning in 2003, rebels in Darfur, a western region of Sudan,
staged an insurrection against the Sudanese government. They claimed the
current regime disregarded the needs of the large non-Arab population in
Darfur. Over the course of several years the situation between the Sudanese

147 Zhou, “The Enforcement of Arrest Warrants,” 202–18.
146 “The Rome Statute,” 31.

145 Legacy Website of the ICTY. “About the ICTY.” Accessed November 29,
2022. https://www.icty.org/en/about.

https://www.icty.org/en/press/icty-marks-official-closure-with-moving-cere
mony-in-the-hague.

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https://www.icty.org/en/press/icty-marks-official-closure-with-moving-ceremony-in-the-hague
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including those of Yugolsavia and Darfur, arrest warrants have
gone unenforced by countries in which suspects were found.149

Currently, a precedent has been established of nations’
complicity in the behavior of war criminals and reluctance to
enforce arrest warrants.

C. Free Will and Anarchy

The International system is fundamentally anarchic.
Both state and non-state actors operate within the law as they
see fit. This seemingly lawlessness is in the absence of “will at
national and/or international levels.”150 Unfortunately, there is
no global enforcement agency to ensure the cooperation of
other nations. As such, within the context of the
Russia-Ukraine conflict, little to no coercive action has been
taken against Russia. Though sanctions have been employed,
the lack of more aggressive coercive efforts (stronger military
opposition) only reinforces the notion that the Russian
Federation, as a relatively strong world power, enjoys impunity
from the coercive capacity of other states and international
forces.

Referencing the ICC as understood in the previous
section, an arrest warrant can, and likely will, go unfulfilled for
years. With a precedent of international complicity, the
responsibility to execute such a warrant now falls on the
Russian Federation and its allies. The Kremlin has already

150 Morris, Madeline. “International Guidelines Against Impunity:
Facilitating Accountability.” Law and Contemporary Problems 59, no. 4
(1996): 29–39.

149 Sharp, “International Obligations,” 411-460; Chazal, “International Court
and Social Control”

military and the rebels escalated and was eventually referred to the ICC by
the UNSC. This led to the issuance of an arrest warrant for Omar al-Bashir,
the sitting president of Sudan, for genocide, war crimes, and crimes against
humanity.

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dismissed the ICC warrant for Putin and Lvova-Belova,
indicating its more than expected refusal to enforce it.151

However, the recent arrest warrant issued by the Court
certainly shrunk the world of Vladimir Putin; it prevents him
from traveling to any major countries in the West as well as
attending any summits of major world leaders. Though Putin
will likely attend the 2023 G20 summit in India (as of the
writing of this article), the presence of a Russian delegation at
important meetings going forward will likely hinge on the host
country, and its status of allyship with the Russian Federation.
The degree to which Putin can interact with the rest of the
international order will likely be inconsistent. Though such
irregular involvement in the international system will certainly
reduce Russia's role on the world stage and drain its ability to
weigh in on policy, it will take time for these hindrances to
show their full impact.

When evaluating the known reasons for why Russia has
violated international law in such egregious ways, there are
three primary factors to assess regarding why an international
actor abides by a given rule or acts in accordance with an
organization: (1) they fear the punishment of the enforcers, (2)
the actor views the rule or mandate as within their own
self-interest, or (3) the actor feels as though the rule or mandate
is legitimate and ought to be obeyed.152 Conversely, each one of
these can be inverted to signify reasons as to why a given rule
or organization is not obeyed by international actors. Either (1)
there is not a large enough coercive threat to force the actor
into submission, (2) the rule is not within the actor’s own

152 Hurd, Ian. “Legitimacy and Authority in International Politics.”
International Organization 53, no. 2 (1999): 379–408, 379.

151 Reuters. “Kremlin: ICC Warrants Outrageous and Unacceptable, but Null
and Void for Us,” March 17, 2023.
https://www.reuters.com/world/europe/russia-warrant-against-putin-meanin
gless-russia-does-not-belong-icc-2023-03-17/.

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self-interest, or (3) the actor does not view the given mandate
or body as legitimate and deserving of obedience. Situations
like the Russia-Ukraine conflict, or general international
disobedience, occur when neither one, two, nor three are met.
Though a given international organization or mandate does not
necessarily need all three, it is certainly clear that at least two
of the three factors are necessary to guarantee the cooperation
of actors. Though the UN has widespread legitimacy, its lack of
coercive capacity alongside its clear opposition to Russian
interests has left the international body paralyzed.

When viewing the reasons for international conflict
specifically through the lens of the situation in Ukraine, each
tenet necessary for cooperation can be evaluated individually.
It is evident that neither the UN nor the ICC independently
possess an adequately strong coercive apparatus to either halt
Russia’s behavior or force a surrender to the Court. The
violations prohibiting the very conduct performed in Ukraine
clearly competes with the self-interest of the Russian
Federation. Further, none of the international bodies capable of
holding Russia accountable are viewed as legitimate by the
Russian Federation to actively prevent atrocities from being
committed. As mentioned previously, at least two of the three
factors must be met for cooperation. However, there is an
argument to be made that the regularity and magnitude of
international disobedience comes from the lack of all three. No
single international mandate or organization possesses coercive
capacity, legitimacy, and self interest and it is possible that the
lack of such an international institution is to blame for the
frequency and scale at which international conflict occurs.

Increasing coercive efforts and capability seems to be
the most efficient solution to improve the UN’s capacity for
resolution in the Russia-Ukraine conflict. However, it should
be noted that coercion as a method of guaranteed cooperation is
the least sustainable. Coercion to motivate compliance requires
excessive resources dedicated to surveillance and enforcement

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and increases the likelihood of disobedience upon the halting
of enforcement measures.153 Due to the vast nature of the
Russia-Ukraine conflict and the reduction in the likelihood of
compliance without coercion in the future, increasing the
coercive capacity is not a permanent solution to the problems
offered by the situation in Ukraine.154 Fundamentally, the very
nature of the international system is one of the greatest
obstacles in ending impunity held by officials of world powers.
The anarchy inherent to the international order only decreases
the likelihood that Russia, and other nations like it, can or will
be held accountable for the atrocities they have committed.

VI. Concluding Thoughts

The preceding analysis aimed to synthesize a large
portion of the existing information on the Russia-Ukraine
conflict, specifically regarding the international law in
question, the validity of claims that said international law has
been violated since the February invasion, and the obstacles to
bringing Russian officials to justice. The ICC, with the
potential to hold Russian officials accountable for their crimes,
has opened an investigation. However, with limited resources
and the lack of cooperation from the UNSC, bound by Russia’s
veto power, the Court will continue to face challenges and it is
unclear if or when a trial will ever commence. Just over a year
into hostilities and the impact of the ongoing war has been
insurmountable. With millions from the region displaced, an
estimated 280,000 casualties, and over 30,000 civilian deaths,
Eastern Europe will be recovering from the wreckage left by

154 Hurd, “Legitimacy and Authority,” 385.
153 Hurd, “Legitimacy and Authority,” 384.

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this war for years.155 With each new case opened by the ICC,
new precedents are set; it is of the utmost importance that the
international order commits to an agenda rooted in justice and
ending impunity held by many world leaders. Let the foregoing
assessment serve as a directive not only on the recent conduct
of the Russian Federation, but the obstacles in place hindering
international heroes from bringing the nation to justice.

155 Cooper, Helene, Eric Schmitt, and Thomas Gibbons-Neff. “Soaring
Death Toll Gives Grim Insight Into Russian Tactics.” New York Times,
February 2, 2023.
https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.h
tml.

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Bibliography

Art, Robert, and Robert Jervis. “Anarchy and Its
Consequences.” In International Politics: Enduring
Concepts and Contemporary Issues, 13th ed. Pearson
Education, Inc., 2016.

“Charter of the United Nations and Statute of the International
Court of Justice.” United Nations, June 26, 1945.

Chazal, Nerida. The International Criminal Court and Global
Social Control: International Criminal Justice in Late
Modernity. Routledge, n.d. Accessed September 21,
2022.

Cooper, Helene, Eric Schmitt, and Thomas Gibbons-Neff.
“Soaring Death Toll Gives Grim Insight Into Russian
Tactics.” New York Times, February 2, 2023.
https://www.nytimes.com/2023/02/02/us/politics/ukrain
e-russia-casualties.html.

Deeb, Sarah, Anastasiia Shvets, and Elizaveta Tilna. “How
Moscow Grabs Ukrainian Kids and Makes Them
Russians.” AP News, March 17, 2023.
https://apnews.com/article/ukrainian-children-russia-74
93cb22c9086c6293c1ac7986d85ef6.

Ellyatt, Holly. “Fake Referendums in Occupied Ukraine Set the
Stage for Annexation — and Immense Danger for
Ukraine.” CNBC, September 28, 2022.
https://www.cnbc.com/2022/09/28/fake-referendums-in
-ukraine-pave-the-way-for-annexation-and-escalation.ht
ml.

Ellyatt, Holly. “Russian Forces Invade Ukraine.” CNBC,
February 24, 2022.
https://www.cnbc.com/2022/02/24/russian-forces-invad
e-ukraine.html.

Guterres, Antonio. “Secretary-General’s Remarks to Press on
the War in Ukraine.” United Nations, March 2022.
https://www.un.org/sg/en/content/sg/press-encounter/20

59

https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.html
https://www.nytimes.com/2023/02/02/us/politics/ukraine-russia-casualties.html
https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c1ac7986d85ef6
https://apnews.com/article/ukrainian-children-russia-7493cb22c9086c6293c1ac7986d85ef6
https://www.cnbc.com/2022/09/28/fake-referendums-in-ukraine-pave-the-way-for-annexation-and-escalation.html
https://www.cnbc.com/2022/09/28/fake-referendums-in-ukraine-pave-the-way-for-annexation-and-escalation.html
https://www.cnbc.com/2022/09/28/fake-referendums-in-ukraine-pave-the-way-for-annexation-and-escalation.html
https://www.cnbc.com/2022/02/24/russian-forces-invade-ukraine.html
https://www.cnbc.com/2022/02/24/russian-forces-invade-ukraine.html
https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA..


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

22-03-22/secretary-generals-remarks-press-the-war-ukr
aine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk
4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AM
TY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAu
MA.

Hurd, Ian. “Legitimacy and Authority in International Politics.”
International Organization 53, no. 2 (1999): 379–408.

Independent International Commission of Inquiry on Ukraine.
“Report of the Independent International Commission
of Inquiry on Ukraine.” The United Nations, October
18, 2022.
https://www.ohchr.org/sites/default/files/2022-10/A-77-
533-AUV-EN.pdf.

International Criminal Court. “Situation in Ukraine: ICC
Judges Issue Arrest Warrants against Vladimir
Vladimirovich Putin and Maria Alekseyevna
Lvova-Belova,” n.d.
https://www.icc-cpi.int/news/situation-ukraine-icc-judg
es-issue-arrest-warrants-against-vladimir-vladimirovich
-putin-and.

“International Humanitarian Law: Answers to Your
Questions.” International Committee of the Red Cross,
June 2020.

Klimkin, Pavlo. “Declaration of the Verkhovna Rada of
Ukraine,” September 8, 2015.

Kumankov, Arseniy. “Nazism, Genocide, and the Threat of the
Global West: Russian Moral Justification of War in
Ukraine.” Etikk I Praksis--Nordic Journal of Applied
Ethics, n.d.

Legacy Website of the ICTY. “About the ICTY.” Accessed
November 29, 2022. https://www.icty.org/en/about.

Legacy Website of the ICTY. “ICTY Marks Official Closure
with Moving Ceremony in The Hague.” Archive.
Accessed November 29, 2022.

60

https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA..
https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA..
https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA..
https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA..
https://www.un.org/sg/en/content/sg/press-encounter/2022-03-22/secretary-generals-remarks-press-the-war-ukraine?_gl=1%2A1rdjbfo%2A_ga%2AMTYxMDgzNDk4Mi4xNjY4NjI5ODg2%2A_ga_TK9BQL5X7Z%2AMTY3Nzc4OTI2My41LjEuMTY3Nzc4OTI5NC4wLjAuMA..
https://www.ohchr.org/sites/default/files/2022-10/A-77-533-AUV-EN.pdf
https://www.ohchr.org/sites/default/files/2022-10/A-77-533-AUV-EN.pdf
https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and
https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and
https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and
https://www.icty.org/en/about


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

https://www.icty.org/en/press/icty-marks-official-closur
e-with-moving-ceremony-in-the-hague.

Morris, Madeline. “International Guidelines Against Impunity:
Facilitating Accountability.” Law and Contemporary
Problems 59, no. 4 (1996): 29–39.

Myers, Steven, and Ellen Barry. “Putin Reclaims Crimea for
Russia and Bitterly Denounces the West.” New York
Times, March 18, 2014.
https://www.nytimes.com/2014/03/19/world/europe/ukr
aine.html.

President of Russia. “Agreement on the Accession of the
Republic of Crimea to the Russian Federation Is
Signed,” n.d.
http://en.kremlin.ru/events/president/news/20604.

“Protocols Additional to The Geneva Conventions of 12
August 1949.” International Committee of the Red
Cross, August 12, 1949.

Rieber, Alfred. “Russian Imperialism: Popular, Emblematic,
Ambiguous.” The Russian Review 53, no. 3 (July
1994): 331–35.

Reuters. “Kremlin: ICC Warrants Outrageous and
Unacceptable, but Null and Void for Us,” March 17,
2023.
https://www.reuters.com/world/europe/russia-warrant-a
gainst-putin-meaningless-russia-does-not-belong-icc-20
23-03-17/.

Security Council Report. “UN Security Council Working
Methods: The Veto,” December 2022.
https://www.securitycouncilreport.org/un-security-coun
cil-working-methods/the-veto.php.

Sharp, Walter. “International Obligations to Search for and
Arrest War Criminals: Government Failure in the
Former Yugoslavia.” Duke Journal of Comparative and
International Law, 1997, 411–60.

“The Geneva Conventions of 12 August 1949.” International

61

https://www.icty.org/en/press/icty-marks-official-closure-with-moving-ceremony-in-the-hague
https://www.icty.org/en/press/icty-marks-official-closure-with-moving-ceremony-in-the-hague
https://www.nytimes.com/2014/03/19/world/europe/ukraine.html
https://www.nytimes.com/2014/03/19/world/europe/ukraine.html
http://en.kremlin.ru/events/president/news/20604
https://www.reuters.com/world/europe/russia-warrant-against-putin-meaningless-russia-does-not-belong-icc-2023-03-17/
https://www.reuters.com/world/europe/russia-warrant-against-putin-meaningless-russia-does-not-belong-icc-2023-03-17/
https://www.reuters.com/world/europe/russia-warrant-against-putin-meaningless-russia-does-not-belong-icc-2023-03-17/
https://www.securitycouncilreport.org/un-security-council-working-methods/the-veto.php
https://www.securitycouncilreport.org/un-security-council-working-methods/the-veto.php


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Committee of the Red Cross, August 12, 1949.
“The Rome Statute.” International Criminal Court, July 1,

2022.
https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.

Zelinska, Olga. “Ukrainian Euromaidan Protest: Dynamics,
Causes, and Aftermath.” Sociology Compass 11, no. 9
(2017).

Zhou, Han-Ru. “The Enforcement of Arrest Warrants by
International Forces.” Journal of International Criminal
Justice 4, no. 2 (2006): 202–18.

Zinets, Natalia, and Aleksandra Vasovic. “Missiles Rain Down
Around Ukraine.” Reuters, February 24, 2022.
https://www.reuters.com/world/europe/putin-orders-mil
itary-operations-ukraine-demands-kyiv-forces-surrende
r-2022-02-24/.

62

https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf
https://www.reuters.com/world/europe/putin-orders-military-operations-ukraine-demands-kyiv-forces-surrender-2022-02-24/
https://www.reuters.com/world/europe/putin-orders-military-operations-ukraine-demands-kyiv-forces-surrender-2022-02-24/
https://www.reuters.com/world/europe/putin-orders-military-operations-ukraine-demands-kyiv-forces-surrender-2022-02-24/


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A Game of Telephone: The Evolution of Conspicuous

Service in New York State

Zachary Miller156

This article discusses the evolution of how conspicuous service
is regarded by trial courts in New York state. Conspicuous
service or “nail and mail service” is the process of nailing
notice of an upcoming court hearing to a visible place on the
property of a defendant. This article examines the legitimacy of
this method of service as it pertains to money judgments in
summary proceeding cases.

I. Explanation of New York State Court System

Unlike in most states, the Supreme Court of New York
State is the court, where most cases are first heard, with
original jurisdiction. When cases are appealed from the state
Supreme Court, they reach a level known as the Appellate
Division. The Appellate Division is a system of four appellate
courts, known as Departments, which each preside over a
separate section of the state. New York City is broken up
between the First and Second Departments.157

The highest court in the State of New York is the Court
of Appeals. New York State courts are currently bound by the
Civil Practice Laws and Rules (CPLR) and the Real Property
Actions and Proceedings Law (RPAPL). Prior to the adoption
of the CPLR, the courts were governed by the Civil Practice

157 Lawrence K Marks and Janet DiFiore, New York State Unified Court
System New York State Courts An Introductory Guide, n.d..

156 Brandeis University Undergraduate, Class of 2025.

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Act (CPA). All of these statutes were ratified by the New York
State Legislature.158

II. Explanation of The Process for Affecting Service

When a plaintiff seeks to sue a defendant in a state
court, the state court must acquire jurisdiction over the
defendant. A petitioning party must hire a process server to
deliver a respondent with notice of the actions the petitioning
party is bringing.159 There are three major types of service a
process server can provide. Firstly, there is in-hand which
directly serves the individual named in an action.160 Secondly, a
substituted service refers to notices that are served upon an
individual, of the proper age and discretion, substituted to
receive notice on behalf of the individual named in the
action.161 Substituted and in-hand services are sometimes
jointly referred to as personal services. Conspicuous service or
“nail and mail” service are the final type of service.
Conspicuous service entails a process server affixing notice
upon a conspicuous part of the respondent’s property and
mailing a copy of the notice to the respondent’s last known
residence.162

During the late nineteenth century and early twentieth
century, all services, excluding in-hand service, were
unconstitutional.163 In 1877, the United States Supreme Court
heard the case of Pennoyer v. Neff. Pennoyer, which was
decided in the aftermath of the ratification of the Fourteenth
Amendment. Pennoyer held that the only way for a state court

163 Dolan v. Linnen.
162 Dolan v. Linnen.
161 Dolan v. Linnen.
160 Dolan v. Linnen (2003)

159 A process server is a third party licensed to serve a defendant with the
notice.

158 “The CPLR at Fifty: Its Past, Present, and Future,” N.Y.U Journal of
Legislation & Public Policy 16, no. 3 (2013).

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to gain jurisdiction over an individual without violating their
due process rights was to serve them while they were
physically present.164 The evolution of methods of service has
had a wide range of implications for American jurisprudence.
For a court to take any action directly impacting an individual,
the court must first be granted jurisdiction over that individual.
This process ensures that individuals have notice of their
involvement in legal matters and can adequately prepare for
legal proceedings. Therefore, issues regarding the legitimacy of
various methods of service have the capacity to affect all civil
actions. This compendium specifically chronicles the evolution
of statutory and common law regarding the role these forms of
service play in summary proceeding cases in New York state.

III. Explanation of a Summary Proceeding

In 1820, the New York State Legislature created
summary proceedings, an expedited process that provided
landlords with an easy means to retrieve possession of a
property from tenants.165 Prior to the implementation of this
policy, a tenant’s decision to stop paying rent was insufficient
for a landlord to terminate a lease. This deficiency would
prompt landlords to insert clauses into their leases which
allowed them to reenter the property if rent payments ceased.166

In 1924, an amendment to the Civil Practice Act (CPA)
sought to allow courts to award rent during summary
proceedings. Previously, landlords would have to commence a
separate and costly action to collect rent. Additionally, these
separate proceedings were antithetical to the nature of

166 Stephen Ross, “Converting Nonpayment to Holdover Summary
Proceedings: The New York Experience with Conditional Limitations
Based Upon Nonpayment of Rent,” Fordham Urban Law Journal 15, no. 2
(1987): 48.

165 Dolan v. Linnen.
164 Pennoyer v. Neff (Supreme Court of the United States 1877).

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summary proceedings, which were expedited hearings. These
judgments, which award a landlord rent, are known as money
judgments.167

IV. McDonald and the Conflict of Law

In the 1927 case of the Matter of McDonald v. Hutter,
the process server unsuccessfully searched for the tenants at
their respective residences for in-hand service. The process
server also unsuccessfully searched for another individual for
substituted service. Hence, the process server resorted to
conspicuous service to serve the tenants.168 The lower court
found that the language of the CPA amendment, its plain
meaning and the typical definitions of the words, could not be
construed to limit money judgments to in-hand service.169 The
amendment did not specify any permissible or impermissible
methods of service. Therefore, conspicuous service could
permissibly be used for a landlord to receive a money
judgment.170

The case was appealed to the Fourth Department in
1929; the diligence of the server was undisputed when the case
was appealed to the Fourth Department. The sole contention of
the appellant was that the CPA only permitted a money
judgment for in-hand service.171 The Fourth Department
conceded that the language of the CPA was broad enough to
encompass the interpretation of the lower court, but the court
decided that the broadness of the statute’s language required it
to assess legislative intent. The court believed that the
Legislature had only intended to allow money judgments for
in-hand service based on the tradition of summons being

171 Matter of McDonald, 405.
170 Matter of McDonald v. Hutter.
169 Matter of McDonald v. Hutter, (County Court Niagara County 1927).
168 Matter of McDonald (4th Dep’t 1929).
167 Ressa Family, LLC v. Dorfman, (2002).

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delivered through in-hand service and from the precedent set in
Pennoyer.172 The major issue embedded in the Fourth
Department’s opinion in McDonald was balancing the
intentions of the Legislature in their 1924 amendment with the
boundaries of constitutionality framed by Pennoyer. These
efforts to reconcile the perceived contradiction led the Fourth
Department to reverse the lower court’s ruling, despite the
Department’s concession that the language was broad enough
to convey the lower court's interpretation.173

McDonald was largely unchanged until 1945 when
Pennoyer was overturned by the case International Shoe
Company v. Washington. In International Shoe, the Supreme
Court upheld substituted service as a form of service in
compliance with due process. This effectively reversed the
Pennoyer rule, which only permitted in-hand service.174

After International Shoe, the opinion in McDonald
should have been rendered moot. The constitutional concerns
which formed the basis for the McDonald ceased to exist under
International Shoe.175 Additionally, in 1954, the CPA was
amended to eliminate the requirement that due diligence be
shown in attempting in-hand service before resorting to
conspicuous service.176 The prerequisite standard became one
of reasonable application, a more flexible threshold than due
diligence. If a reasonable application proved fruitless,
conspicuous service was permitted.

The CPA amendment indicated a legislative intention to
make conspicuous service a more readily available option to
landlords and their process servers.177 These sentiments that the

177 Dolan v. Linnen.
176 Matter of Seagram Sons v. Rossi (1965).
175 Dolan v. Linnen.

174 International Shoe Co. v. Washington, (Supreme Court of the United
States, 1945).

173 Matter of McDonald, 406.
172 Matter of McDonald, 406.

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Legislature appeared to harbor are noteworthy as they pertain
to subsequent judicial developments.

V. McDonald in the Wake of International Shoe

The 1961 case of Matter of Raymond v. Grotz is a
noteworthy decision because it was decided in the aftermath of
International Shoe and the 1954 CPA amendment. In
Raymond, a process server was unable to find the tenants and
resorted to conspicuous service.178 Raymond found that service
was consistent with the amended CPA, but the court
maintained that personal service was vital for a money
judgment. The court argued that McDonald’s precedent was
that money judgments could only be awarded for conspicuous
service if a court order authorized it once it was shown that
personal service was impossible. Raymond chose to uphold
McDonald as a binding precedent.179 McDonald was cited
despite the constitutional restraints of Pennoyer no longer
binding the court in Raymond. Additionally, the due diligence
prerequisite for conspicuous service had already eased the
process during this time.

Raymond is notable because it was decided between the
1954 CPA amendment and the 1963 repeal of the CPA. During
this formative period, Raymond upheld McDonald as binding
and persuasive precedent. Raymond deferred to McDonald
despite the Pennoyer case, the basis of McDonald, no longer
being applicable.180 On September 1, 1963, the New York State
Legislature repealed and replaced the CPA with the New York
Civil Practice Laws and Rules (CPLR) and the Real Property
Actions and Proceedings Law (RPAPL).181 When the CPA was

181 Dolan v. Linnen.
180 Raymond, 926.
179 Raymond, 926.
178 Matter of Raymond v. Grotz, 926.

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repealed, the statute interpreted by the Fourth Department in
McDonald ceased to be binding law.

VI. McDonald in the Wake of the CPLR

The CPLR permitted substituted service and
conspicuous service when in-hand service could not be
performed with due diligence, while the RPAPL carried over
the reasonable application standard from the 1954
amendment.182 Two months after the repeal of the CPA,
Wayside Homes v. Upton was heard on November 26, 1963.183

Wayside interpreted the RPAPL as delegating the details of
service for a money judgment to the CPLR. Wayside derived
this from a provision in the RPAPL which stated that, “service
of the notice of petition and petition shall be made in the same
manner as personal service of a summons.”184 In Wayside, the
process server engaged in substituted service.185 A notice of
petition is the document a tenant is presented with to acquire
jurisdiction in a summary proceeding.

The court in Wayside used this language to surmise that
process servers delivering summary proceeding papers ought to
be held to the same standard as one delivering a summons.186

Thus, Wayside adopted the CPLR and decided that the RPAPL
was not the governing statute. At the time, the CPLR’s standard
for affecting substituted service or conspicuous service in a
summons was due diligence. The court acknowledged that the
server had complied with the RPAPL, but that the server failed

186 Wayside, 1087.
185 Wayside, 1087.
184 Wayside Homes v. Upton (1963).

183 Interestingly, the case was initially supposed to be heard on Monday
November 25, 1963. But, courts were closed that day in commemoration of
the assassination of President John F. Kennedy on Friday, November 22. So,
the case was heard on November 26.

182 Dolan v. Linnen.

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to comply with the due diligence required by the CPLR.187 The
landlord’s compliance with the RPAPL was not enough to
award a landlord a money judgment. This case is notable for its
ruling that the principles in McDonald remained binding and
that a similar legislative intent undergirded all of these statutes.

The legislative intent described by the court in Wayside
makes no mention of the 1954 CPA amendment which replaced
the due diligence standard with one of reasonable
application.188 In this amendment, the Legislature indicated a
desire to loosen the standard a server needed to meet to affect
service. Additionally, this understanding of the intent of the
Legislature fails to account for a section of the CPLR which
states that “[e]xcept where otherwise prescribed by law,
procedure in special proceedings shall be the same as in
actions, and the provisions of the civil practice law and rules
applicable to actions shall be applicable to special
proceedings.” 189 The RPAPL is a statute intended to govern
summary proceedings. Since 1924, the intent of the Legislature
had been to merge actions for rent into summary proceedings
to expedite the process on all fronts.190 Even if the language
equating summary proceedings and summons kept the process
bound by the CPLR, the Legislature removed that language
from the RPAPL in 1965.191

This was significant because Wayside’s ruling was
predicated on the idea that these proceedings ought to mirror a
summons.192 Wayside incorporated the CPLR because the court
believed that this language removed money judgments from the

192 “Substituted Service--Section 735 of the RPAPL and Section 308(3) of
the CPLR,” St. John’s Law Review 38 (May 1964).

191 Arnold v. Lyons, (March 2003).
190 Matter of McDonald.
189 Dolan v. Linnen, 324.
188 Wayside.
187 Wayside, 1088.

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purview of the RPAPL’s language.193 But, the omission of this
language indicated an intent to insulate summary proceedings
from the regiment of the CPLR. That same year, Matter of
Seagram Sons v. Rossi was decided.194 In Seagram,
conspicuous service and substituted service were used.195 In
each instance, the process server made only one attempt at
in-hand service. The court ruled that it is not necessary to show
due diligence for in-hand service before resorting to
conspicuous service or substituted service for a summary
proceeding based on the RPAPL.196 The court in Seagram
believed that the RPAPL’s flexible requirements were an
intentional attempt by the Legislature to maintain a speedy
process for landlords who sought to effectuate summary
proceedings.

Conversely, the court in Seagram pointed out that the
CPLR permitted the service of a summons through substituted
service or conspicuous service only when due and diligent
efforts to serve in-hand had failed.197 So, if a landlord does
affect conspicuous service or substituted service without
meeting the due diligence requirement, they are not entitled to
a money judgment. Seagram ruled that both substituted and
conspicuous services required a preemptive exercising of due
diligence in a server’s attempts to execute an in-hand service.198

Seagram cited Wayside and Raymond as precedent for not
awarding a money judgment for conspicuous service without
the due diligence required by the CPLR.199

Seagram’s ruling is notable for its preservation of
Wayside’s due diligence prerequisite and its affirmation of the

199 Seagram.
198 Seagram, 428.
197 Seagram, 428.
196 Seagram, 428.
195 Seagram, 428.
194 Matter of Seagram Sons v. Rossi, (1965).
193 Wayside, 1089.

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adoption of the CPLR for assessing these kinds of cases.
Wayside’s adoption of the CPLR had been rooted in language
found in the RPAPL which analogized notice of petitions and
summons.200 The redaction of this language in 1965 no longer
mandated that the service in summary proceedings mirror the
service of a summons. Therefore, it was no longer necessary to
apply the standard of the CPLR; instead courts should have
subjected summary proceedings to the RPAPL entirely.201 As a
result, the Legislature nullified the precedent set in Wayside
because Wayside’s precedent was grounded in this language
justifying the adoption of the CPLR. However, Seagram’s
vindication of Wayside was instrumental in maintaining an
adherence to the CPLR when assessing the viability of money
judgments.

In 1971, 1405 Realty Corp v. Napier denied a money
judgment as a result of a process server’s perceived lack of
compliance with the CPLR.202 In Napier, there were two visits
to the tenant’s home to affect personal service before resorting
to conspicuous service. Napier cites Wayside and Seagram as
precedent for requiring a prerequisite showing of due
diligence.203 Napier cites McDonald as precedent for how the
method of service affects a landlord’s ability to win a money
judgment.204 In Napier, the court acknowledged that the process
server complied with the RPAPL’s mandates for the service of
process, specifically conceding that these guidelines are easier
to meet because of the nature of summary proceedings as
expedited relief.205 Yet, the court found that the process server
had not complied with the CPLR and so denied the money
judgment. The court in Napier should not have been applying

205 Napier, 794.
204 Napier, 794.
203 Napier, 795.
202 1405 Realty Corp. v. Napier, 795 (1971).
201 New York City v. Wall Street Racquet Club (1987).
200 Wayside.

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the CPLR in the first place. By this point, Seagram and
Wayside had been overturned by the Legislature’s omission of
the language equating summary proceeding notice with that of
a summons.206 There is no further evidence to indicate that
Napier was appealed.

The due diligence prerequisite for substituted services
was removed from Section 308 of the CPLR in 1970. As a
result of this amendment, in-hand service and substituted
service were equated under one category of personal service.207

In the 1972 case Fairhaven Apartments v. Dolan, a process
server affected substituted service upon a tenant. The court
ruled that this complied with the RPAPL and the CPLR. The
court in Fairhaven distinguished itself from the court in
Wayside based on the absence of a due diligence prerequisite
for affecting substituted service.208

VII. Ressa and Dolan: Taking Judicial Notice of the

Problem

In the case Ressa Family LLC v. Dorfman, personal
service was not used. Ressa contended that the Legislature
never made any indication that the amalgamation of RPAPL
and CPLR for summary proceedings was necessary.209 Instead,
the court in Ressa argued that efforts to combine these two
statutes is the result of a misunderstanding of the McDonald
rule. Ressa found that the RPAPL offers sufficient
constitutional protections to tenants.210 Ressa reasoned that the
purpose of a summary proceeding is to provide expedited
relief. Therefore, it would be logical to ease the burden of

210 Ressa, 321.
209 Ressa, 320.
208 Fairhaven Apts. No. 6 v. Dolan, (1972).
207 Dolan v. Linnen.
206 Dolan v. Linnen.

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serving notice. Ressa ultimately petitioned the Legislature or
another appellate court to overrule McDonald. But, Ressa’s
ruling upheld McDonald and decided that money judgments
may only be awarded in the event of personal service. The
court in Ressa was a trial-level court and did not believe it had
the ability to tamper with McDonald without appellate
jurisdiction or legislative prerogatives.211

Ressa was decided in 2002 and shortly after, in January
of 2003, Dolan v. Linnen was decided. In Dolan, a process
server made four attempts to serve the tenant in-hand. After
these four attempts, the process server engaged in conspicuous
service.212 Dolan asserted that the legislative intent surmised in
McDonald had been abrogated by the Legislature through
subsequent statutory amendments. Dolan advocated utilizing
the CPLR for assessing the legitimacy of conspicuous service.
Dolan advised awarding money judgments when conspicuous
service met the due diligence standard in the CPLR.213

Following the decision of Dolan in January 2003, in
March of the same year, Judge Kenneth Gartner, who presided
over the Ressa case, authored the decision in Arnold v. Lyons.
Arnold further elucidated Ressa and responded to Dolan. In
Arnold, tenants were served by conspicuous service. Arnold
awarded possession but denied the money judgment, citing
Ressa. Arnold affirmed Ressa’s assertion that the courts which
sought to award money judgments for methods of service other
than personal service misunderstood McDonald. Arnold
described Dolan as an opinion which adopts Ressa’s historical
analysis but which arrived at a diametrically opposed
conclusion based on a narrow but crucial area of difference.214

Arnold stated that Ressa and Dolan agree that the CPA,
under which McDonald was decided, has largely been adopted

214 Arnold v. Lyons, (March 2003).
213 Dolan v. Linnen.
212 Dolan v. Linnen, 303.
211 Ressa, 323.

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into the RPAPL. Both agree that McDonald construed the
Legislature to have sought to limit delivery to personal service.
Arnold contended that Ressa and Dolan agreed that the
decision in McDonald stemmed from a desire to avoid a novel
practice and avoid conflicting with Pennoyer. Arnold posited
that Ressa and Dolan are in agreement that McDonald’s
methodology was flawed and that the court in McDonald
attempted to incorporate an unexpressed intent contrary to the
plain meaning of the text. Arnold affirmed that both Ressa and
Dolan believe that McDonald is no longer defensible on its
original grounds.215

Arnold concluded that the fundamental disagreement
between Ressa and Dolan stems from their differing view of
stare decisis, the legal principle that judges should adhere to
precedent. Ressa believed the courts must follow McDonald,
while Dolan did not. Arnold asserted that precedents involving
statutory interpretation are entitled to a greater degree of
stability. The judge in Arnold argued that it is the Legislature’s
job to correct any misinterpretation of legislative intent. But,
that courts with original jurisdiction do not have the capacity to
influence these kinds of issues.216

Arnold submitted that the Legislature could have easily
revised the RPAPL to permit all forms of service for all
benefits. The fact that the Legislature still has not done that
shows that McDonald’s understanding of the Legislature’s
intentions remains. Arnold contends that applying the RPAPL
as written might effectuate the intent of the Legislature in 1924
but would fail to uphold the intent of the current Legislature.217

Since the Arnold ruling, most courts have adopted the Dolan
rule.

217 Arnold.
216 Arnold, 15.
215 Arnold, 6.

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VIII. Adoption of the Dolan Rule: “Evisceration” of

McDonald

In the case of Avgush v. Berrahu, from October 2007, a
process server attempted in-hand service on five separate
occasions before resorting to conspicuous service.218 In the
lower court, after the tenants failed to appear, the landlord was
only granted possession. Avgush found that the conduct of the
process server met the reasonable application standard found in
RPAPL section 735.219 Avgush also found that it would have
satisfied the due diligence standard found in subsection 4 of
section 308 of the CPLR. This case cites Dolan v. Linnen as a
precedent for awarding a money judgment after satisfying the
due diligence standard necessary for conspicuous service under
section 308 of the CPLR.220 Avgush acknowledges that the
constitutional landscape has changed substantially since the
ruling in McDonald. The court ultimately awarded a money
judgment.

In December 2009, Expressway Village v. Denman was
decided. The lower court awarded possession but not a money
judgment because the process server resorted to conspicuous
service. The appeal raised the sole issue of whether a trial court
in a summary proceeding can enter a money judgment when
notice is served through conspicuous service.221 Expressway
states that the rule in McDonald appears to be incorrect and
speculates that the Fourth Department would no longer apply
it. Expressway cites Avgush to show that an appellate court has
rejected McDonald and adopted the reasoning of cases like
Dolan.222 Expressway posits that the absence of a similar ruling

222 Expressway, 957.
221 Expressway Village, v. Denman, 956 (2009).
220 Avgush, 90.
219 Avgush, 86.
218 Avgush v. Berrahu, 86 (2007).

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in any other higher court allows the First and Third
Departments to adopt Avgush. Expressway contends that if the
Fourth Department wishes to preserve McDonald, they can
always reverse this decision.223

Subsequent courts have denied that Expressway
overturned McDonald because the County Court of Niagara
County is a lower court than the Fourth Department.224

Regardless, the Dolan rule is the one that Expressway adopted.
The Dolan rule adopted the policy of melding the RPAPL and
CPLR and determining the viability of a money judgment
based on whether conspicuous service was performed after a
process server used due diligence to attempt personal
service.225 But, with the Dolan rule in place, the correct
standard for these cases is still not being applied by judges.

A contemporary example comes from the 2022 case
Li-Seabrooks v. Pimento where two attempts were made at
personal service before the process server resorted to
conspicuous service. The respondent argued that the process
server did not exercise due diligence before resorting to
conspicuous service. Pimento holds the petitioner to the
standard of due diligence and distinguishes this standard from
the reasonable application standard under the RPAPL. Pimento
states that one attempt inside normal working hours and one
attempt outside normal working hours satisfies reasonable
application, but no rigid standard can be prescribed for due
diligence. The opinion cites Dolan v. Linnen’s finding that two
attempts at personal service satisfy reasonable application but
not due diligence. Ultimately, the court ruled in the
respondent's favor and denied a money judgment.226

226 Li-Seabrooks v. Pimento (2022).
225 Dolan v. Linnen.
224 Cornhill LLC v. Sposato (2017)
223 Expressway.

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IX. Significance and Implications

American society is rooted in contracts, both implicit
and explicit. These contracts are agreements predicated in
conditions which compel each party to keep their word when a
sensitive deal is made. When these contracts are breached,
people ought to be able to look to the judicial system, and the
due process rights enshrined within it, for an opportunity to
defend their rights.227 In the case of landlord-tenant
agreements, the tenant is offered the benefit of shelter by the
landlord and the landlord is offered the benefit of rent by the
tenant.228 The New York State Legislature conceived the
summary proceeding as a mechanism for affording landlords
an expedited hearing when their rights under this contract were
denied. Through subsequent legislative amendments, these
hearings became a forum for landlords to redress the loss of
their contractual benefit because they could petition for a
money judgment.229

At the root of this issue is the importance of allowing
individuals to be compensated for situations where they are
taken advantage of. While it is necessary to safeguard the
liberties of tenants and ensure they can peacefully enjoy
shelter, it is also important to safeguard the rights of a landlord
when their property is occupied without their consent while
they are not being duly compensated. The purpose of a
summary proceeding is to right these wrongs when they occur
and award landlords the money they are owed.230 However,

230Ross, “Converting Nonpayment to Holdover Summary Proceedings: The
New York Experience with Conditional Limitations Based Upon
Nonpayment of Rent.”

229 Matter of McDonald v. Hutter.
228 Ross.

227Ross, “Converting Nonpayment to Holdover Summary Proceedings: The
New York Experience with Conditional Limitations Based Upon
Nonpayment of Rent.”

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New York State courts continue to deny this restitution to
landlords on the basis of obsolete legal analysis.

An analogy for this situation is a game of telephone.231

Imagine a straight line of players in a game of telephone, the
cases which deal with this issue in chronological order. The
player tasked with formulating the message is the Legislature.
The Legislature releases the message in the form of statutes.
By passing a statute, the Legislature passes along their message
for courts to interpret. Along the way, courts have
misinterpreted and mistranslated the original message leading
to confusion. A distinction between the legislative process and
a game of telephone, however, is that higher courts impact how
legislation is enacted and how courts rule on issues.

The Fourth Department was faced with a difficult
decision when the McDonald case was appealed to them.
Summary proceedings were intended to be an expedited
process for securing control of one’s property when a tenant
ceased to pay rent. The 1924 CPA statute was intended to
enjoin money judgments in this process to further expedite it.232

The Fourth Department recognized that the statute contained
no enumeration of limitations contingent upon the method of
service. Simultaneously, Pennoyer was a binding precedent
which declared anything other than in-hand service
unconstitutional. Thus, the Fourth Department fabricated a
legislative intent to avoid disrupting a tradition of recognizing
in-hand service as the only legitimate form of service, as
enforced by Pennoyer.233 The McDonald decision was rendered
moot when Pennoyer was overturned by International Shoe. At
this point, any constitutional qualms surrounding methods of
service other than in-hand service were eviscerated.234

234 Ressa.
233 Matter of McDonald.
232 Matter of McDonald v. Hutter.
231 Ressa.

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Furthermore, the CPA, which governed the McDonald
case, was repealed in 1963, yet Wayside chose to cite
McDonald as a binding precedent for adjudicating cases
pertaining to the RPAPL.235 Additionally, Wayside opted not to
submit to the RPAPL as the governing statute and instead
subjected summary proceedings to the more scrutinous CPLR
to award money judgments.236 Ultimately, this subjected
summary proceedings to a statute the Legislature likely did not
intend for them. Wayside justified this by pointing to a sentence
in the RPAPL seeking to equate summary proceedings with
summons, a process governed by the CPLR. The court in
Wayside believed this was an indication the Legislature
intended for courts to adjudicate these cases, using the
CPLR.237

Even if this was their initial intention, the Legislature
revised the RPAPL in 1965 to omit this language.238 This action
indicated a desire to keep summary proceedings within the
parameters of the RPAPL, yet courts continued to wrongfully
assess these cases under the CPLR.239 Even Ressa and Arnold,
which acknowledged this method of jurisprudence was
incorrect, applied McDonald and denied a money judgment for
a case which did not involve personal service. The rationale
was a desire to comport with the intentions of the current
Legislature. Since the Legislature could amend the RPAPL to
explicitly enumerate the permissible methods of service and
did not, Judge Gartner believed that trial courts were still
forced to uphold this ingrained practice.240

240 Arnold.
239 Napier.

238 “McManus v. Condren,” All Decisions, October 27, 2022,
https://ir.lawnet.fordham.edu/housing_court_all/676.

237 Wayside.

236 “Substituted Service--Section 735 of the RPAPL and Section 308(3) of
the CPLR.”

235 “Substituted Service--Section 735 of the RPAPL and Section 308(3) of
the CPLR.”

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Returning to the analogy of a game of telephone, a
noteworthy distinction between the legislative process and a
game of telephone is that the Legislature can amend their
statutes. This would be like a player sending new messages
down the telephone line while other players are still trying to
decipher the first message. In this way, courts are not bound by
the Legislature’s initial statute and should take subsequent
revisions into consideration. Even though Judge Gartner’s
understanding of the RPAPL is valid, he chose not to rule in
accordance with this philosophy because he believed that the
Legislature did not convey any intention of ameliorating how
courts adjudicated this matter.241 Judge Gartner argued that if
he did not comport with McDonald, he would be upholding the
intent of the Legislature in 1924, but not necessarily the
contemporary legislative intent on this issue.242

Judge Gartner’s belief, however, discards all of the
subsequent legislative developments between 1924 and the
present day which indicated a desire to reform the process.243

Throughout this time, it was courts that remained stagnant, not
the Legislature. The Legislature engaged in periodic revisions
designed to steer courts towards enforcing less stringent service
requirements for summary proceedings. For example, after
Pennoyer, the CPA eliminated the due diligence prerequisite
for a process server’s attempts to affect personal service before
resorting to substituted service or conspicuous service.244 This
development was ignored by Raymond, which chose to defer to
McDonald.245 The Legislature then repealed the CPA and
overhauled the statutory framework with the CPLR and the
RPAPL. In Wayside, these developments were ignored and the
case held that the same intent surmised by McDonald

245 Raymond.
244 Dolan v. Linnen.
243 Dolan v. Linnen.
242 Arnold.
241 Arnold.

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undergirded these statutes.246 Wayside pointed to the provision
equating summons and summary proceedings in the RPAPL to
come to this conclusion.247 Thus, the Legislature removed this
language from the statute entirely.248 Yet, Napier chose to
follow Wayside and maintained a framework which ignored
subsequent legislative developments.249

Ressa recognized the contradictions embedded in this
saga, yet Judge Gartner believed that it was necessary to adhere
to stare decisis.250 Even after Judge Gartner witnessed Dolan
perpetuating the architecture of Wayside, he refused to carve
out a better path in Arnold because he did not believe the
Legislature expressed a desire to see the RPAPL govern
summary proceedings.251 As a result of this series of
mistranslations and misinterpretations of legislative intent,
individuals have been robbed of their ability to be justly
compensated for wrongs they faced at the hands of those who
unjustly occupied their property. As evidenced by Pimento, this
mistake continues to occur in contemporary jurisprudence. This
is antithetical to the legislative intent which undergirds
summary proceedings.252 Additionally, this fails to heed to the
legislative intent to have summary proceedings be governed by
the RPAPL’s standard of reasonable application.253 Yet, this
practice has endured for over a century. In the time since this
issue first emerged, there have been a variety of technological
and social developments that have altered one’s capacity to

253 Arnold.

252 Ross, “Converting Nonpayment to Holdover Summary Proceedings: The
New York Experience with Conditional Limitations Based Upon
Nonpayment of Rent.”

251 Arnold.
250 Arnold.
249 Napier.
248 Ressa.
247 Wayside.

246 “Substituted Service--Section 735 of the RPAPL and Section 308(3) of
the CPLR.”

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gain information. Despite these developments, the process for
delivering notice of one’s involvement in legal proceedings has
not evolved.

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Bibliography

Marks, Lawrence K, and Janet DiFiore. New York State Unified
Court System New York State Courts An Introductory
Guide, n.d.

“McManus v. Condren.” All Decisions, October 27, 2022.
https://ir.lawnet.fordham.edu/housing_court_all/676.

Ross, Stephen. “Converting Nonpayment to Holdover
Summary Proceedings: The New York Experience with
Conditional Limitations Based Upon Nonpayment of
Rent.” Fordham Urban Law Journal 15, no. 2 (1987):
48.

“Substituted Service--Section 735 of the RPAPL and Section
308(3) of the CPLR.” St. John’s Law Review 38 (May
1964).

“The CPLR at Fifty: Its Past, Present, and Future.” N.Y.U
Journal of Legislation & Public Policy 16, no. 3 (2013).

Cases Cited

1405 Realty Corp v. Napier, 68 Misc. 2d 793 (1971).
Arnold v. Lyons, NY Slip Op 50766[U] (2003).
Avgush v Berrahu, 17 Misc 3d 85 (2007).
City of New York v. Wall St. Racquet Club, 136 Misc.2d 405

(1987).
Cornhill LLC v. Sposato, 51 Misc.3d 840, (2017).
Dolan v. Linnen, 195 Misc 2d 298 (2003).
Expressway Village, Inc. v. Denman, 26 Misc.3d 954 (2009).
Fairhaven Apts. No. 6 v. Dolan, 72 Misc 2d 590 (1972).
International Shoe Co. v. Washington, 326 U.S. 310 (1945).
Li-Seabrooks v. Pimento, Slip Op. 22131 (2022).
Matter of McDonald v. Hutter, 130 Misc. 631 (1927).
Matter of Mcdonald, 225 App Div 403 (1929).
Matter of Raymond v. Grotz, 31 Misc. 2d 925 (1961).

84

https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://ir.lawnet.fordham.edu/housing_court_all/676
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
https://www.zotero.org/google-docs/?ZC07SC
http://www.nycourts.gov/reporter/3dseries/2007/2007_27424.htm
https://casetext.com/case/new-york-city-v-racquet-club
https://casetext.com/case/cornhill-llc-v-sposato
https://casetext.com/case/expressway-village-v-denman
https://casetext.com/case/fairhaven-apts-no-6-v-dolan


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Matter of Seagram Sons v. Rossi, 45 Misc. 2d 427 (1965).
Pennoyer v. Neff, 95 U.S. 714 (1877).
Ressa Family LLC v. Dorfman, 193 Misc. 2d 315 (2002).
Wayside Homes v. Upton, 40 Misc. 2d 1087 (1963).

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A Restoration of Voting Rights & Humanity

Brandon Samuels254

As a nation that has always touted its democratic principles,
the United States of America restricts citizens’ right to vote.
Voter disenfranchisement laws particularly silence the voices
of formerly incarcerated individuals. These laws often restrict
or make it harder for formerly incarcerated Americans to vote
in federal and state elections. Individuals who have fully
completed their sentence continue to face voting obstacles
beyond prison that non-incarcerated Americans do not
encounter. These laws hamper individuals who have completed
their sentences and discriminate against the rights of formerly
incarcerated people. This article questions why formerly
incarcerated individuals are not eligible to enjoy the same
voting rights as their fellow Americans. To combat this unjust
treatment, this article proposes an original super-statute: The
Voting Rights Restoration Act. This novel proposal ensures that
formerly incarcerated individuals will be respected under the
law as equal citizens of the United States.

I. A Proposed Statute: The Voting Rights Restoration Act

A fundamental right that all Americans are entitled to is
the ability to participate in our nation’s democratic processes.
However, there are numerous state laws that exclude millions
of Americans with past criminal convictions from voting in
both state and federal elections.255 The Voting Rights
Restoration Act seeks to address this anti-democratic injustice.

255 Chung, Jean, and Amy Fettig. “Voting Rights in the Era of Mass
Incarceration: A Primer.” The Sentencing Project,3 Sept. 2021,
https://www.sentencingproject.org/publications/felony-disenfranchisement-
a-primer/.

254 Brandeis University Undergraduate, Class of 2025.

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This proposed statute is a super-statute because it addresses a
fundamental aspect of national life: the ability for all
Americans to participate in democracy.256 Super-statutes, such
as the Civil Rights Act of 1964 or the Voting Rights Act of
1965, provide a broad pathway for citizens to exercise their
fundamental rights that are enshrined in the Constitution of the
United States.257

The fundamental right to participate in our democracy
is directly addressed under Section 1 of the 14th Amendment of
the Constitution which states, “nor shall any state deprive any
person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.”258 This amendment is particularly
significant because it states that the laws of the United States,
including voting laws, must be applied equally to all citizens.259

The Voting Rights Restoration Act reinforces the Equal
Protection Clause because it promotes the constitutional
principle that every American citizen is entitled to vote in
elections and that no state shall abridge this right.

Finally, the Voting Rights Restoration Act is a super
statute because it would be a “landmark” of our law.260 Not
only does this proposed piece of legislation give practical

260 Breen, “Class Lecture.”
259 U.S. Const. amend. XIV, § 1.
258 U.S. Const. amend. XIV, § 1.

257 Breen, Daniel. 221LGLS: Civil Rights and Civil Liberties: Legislative.
26 January. 2022, Brandeis University, Waltham. Class Lecture.

256 Scholars William N. Eskridge, Jr. and John Ferejohn define a
super-statute as, “a law or series of laws that (1) seeks to establish a new
normative or institutional framework for state policy and (2) over time does
“stick” in the public culture such that (3) the super-statute and its
institutional or normative principles have a broad effect on the
law—including an effect beyond the four corners of the statute” (1216);
Eskridge, William N., and John Ferejohn. Super-Statutes ,
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context
=dlj

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

effect to the Equal Protection Clause, a core constitutional
command, but it also restores the right to vote to every
formerly incarcerated American. In summation, the Voting
Rights Restoration Act pertains to the three criteria that define
a super-statute; the legislation addresses a fundamental aspect
of our national life, it gives effect to deeply held beliefs and
aspirations, and it is a “landmark” in our law.261

The Voting Rights Restoration Act would also allow
any individual who has completed a sentence in prison or jail
to be eligible to vote upon release. Further, the Act would
allow individuals who are on parole or supervised probation to
exercise their right to vote in elections. States such as Florida,
Alabama, Arizona, and Tennessee have adopted laws that have
made restoration of voting rights “conditional on an
individual’s payment of all restitution, fines, and fees.”262

Formerly incarcerated individuals who are required to make
monetary payments in order to exercise their right to vote
encounter hindrances in fulfilling their civic responsibilities
that are not encountered by non-incarcerated individuals.

The Sentencing Project is a research and advocacy
center that seeks to limit the decriminalization of youths and
adults by undertaking an initiative to analyze laws related to
voter disenfranchisement. The center estimates that almost
900,000 Floridians are barred from voting, despite a 2018
referendum which guaranteed their restoration of voting
rights.263 The proposed Voting Rights Restoration Act abolishes
any law that requires former imprisoned to pay any restitution,
fine, or fee to vote. The act of voting or exercising one’s voice
in democracy should not be dependent on a monetary
contribution. Voting is an intangible mechanism that has no
monetary function because it is both a freely guaranteed and
not transferable right. Instead, voting ought to be regarded as a

263 Uggen et al., “Locked out 2020.”
262 Chung et al., “Voting Rights.”
261 Eskridge, William N., and John Ferejohn. Super-Statutes.

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fundamental right that any citizen can freely exercise,
regardless of income level or previous incarceration.

The Voting Rights Restoration Act seeks to restore the
right to vote for formerly incarcerated individuals while also
enforcing the rule of law in a rational manner. When an
individual violates the laws of the United States, they are
subject to incarceration. A convicted individual forfeits many
freedoms, including the right to vote, while they are
incarcerated. Therefore, The Voting Rights Restoration Act
pertains to individuals who are no longer incarcerated as well
as individuals who are in a period of parole.264 The application
of this proposed statute depends on if the individual is
imprisoned or has been released from incarceration. The
proposed statute does not apply to individuals who are
currently serving a prison sentence. While individuals
relinquish their right to vote during their period of confinement
and/or probation, this restriction should end upon the
termination of a person’s sentence. After an individual
completes their sentence, they have served their time and ought
to be reintegrated back into a society where voting is a regular
practice. Lastly, the Voting Rights Restoration Act would be a
federal law enacted by Congress, meaning it is applicable to all
50 states and territories of the United States.

II. Why The Voting Rights Restoration Act Is Needed

The Voting Rights Restoration Act is needed today
because it reflects the current call to combat the oppression of
minority groups disproportionately affected by the criminal
justice system.265 As it stands, disenfranchisement of voting

265 Brennan Center For Justice, “Criminal Disenfranchisement Laws.”

264 A great debate exists regarding if currently incarcerated individuals
should enjoy the right to vote. While this issue is worthy of discussion, its
breadth is beyond the scope of The Voting Rights Restoration Act and this
article.

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rights for formerly incarcerated individuals is widespread
across the nation. The Brennan Center for Justice, a nonprofit
law and policy institute which seeks to hold American political
institutions to account, states that “twenty-seven states bar
community members from voting, simply on the basis of
convictions in their past.''266 Essentially, it does not matter the
reason individuals have been incarcerated, the duration of their
incarceration, or how they behaved while incarcerated; all that
matters is that they were, for some time, and for some reason,
incarcerated.267

The impact of these laws disenfranchising formerly
incarcerated people has only intensified as “the number of
people disenfranchised because of a felony conviction
increased dramatically, rising from 1.17 million in 1976 to 6.1
million by 2016, just as mass incarceration and criminalization
took hold in the U.S.''268 Moreover, incarcerated individuals'
disenfranchisement laws have a disproportionate impact on
communities of color. As of 2020, The Sentencing Project
found that “in seven states—Alabama; Florida; Kentucky;
Mississippi; Tennessee; Virginia; Wyoming—more than one in
seven Black adults are disenfranchised. In total, 1.8 million
Black citizens are banned from voting.”269 The significance of
this statistic illustrates that voter disenfranchisement laws are
specifically targeting Black individuals from pursuing their
Constitutional right to participate in democracy. This is a
pattern of social injustice that has plagued America since its
founding. It is time to address voter disenfranchisement laws to
ensure equality under the law for all American citizens.

269 Uggen et al., “Locked out 2020.”
268 Chung et al., “Voting Rights.”
267 Brennan Center For Justice, “Criminal Disenfranchisement Laws.”
266 Brennan Center For Justice, “Criminal Disenfranchisement Laws.”

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III. A Lineage of Super Statutes

In general, the proposed super statute reflects a long
history of fundamental American principles, which include
democratic participation and equality under the law. At the core
of American democracy is civic participation through regularly
held elections.270 While the ability to vote is more accessible
today than it was a century ago, there are clearly still
limitations to voting rights for Americans with past criminal
convictions. There is a long history of Americans fighting for
more equal voting rights with the enactment of meaningful
legislation.271 The passage of the Voting Rights Act of 1965
represents the battle to make voting a more accessible and
inclusive process.272 At the time of enactment, this 1965 statute
abolished poll taxes and literacy tests. Since its enactment, it
has aimed to prevent any jurisdiction from abridging the right
to vote on account of race and has required a preclearance
requirement which bars specific jurisdictions from changing
voting laws without approval from the United States Attorney
General or District Court judgment.273

The Voting Rights Act of 1965 prevented
discriminatory voter suppression tactics, thereby giving more
Americans the chance to exercise their right to vote. Similarly,
the proposed Voting Rights Restoration Act seeks to make
voting more accessible for previously incarcerated individuals
by eliminating the obstacles that are prevalent in our current
laws. Congress tried to address racial discrimination in voting
through the Voting Rights Act of 1965, but criminal
disenfranchisement remains an apparatus of oppression in a
criminal justice system that disproportionately affects people of

273 Breen, “Class Lecture.”
272 Breen, “Class Lecture.”
271 Breen, “Class Lecture.”
270 Breen, “Class Lecture.”

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color.274 For this proposed Act to have a broad application to all
previously incarcerated Americans, it should be a federal law
enacted by the United States Congress. The hypothetical
passage of the Voting Rights Restoration Act would illuminate
America’s precious norms of democratic participation and
equality under the law.

Since there is no existing federal legislation and
individual states are adopting radically different voting laws,
there is a great disparity in the voting rights that formerly
incarcerated Americans receive.275 Part of this inconsistent
application of criminal disenfranchisement laws stems from the
Supreme Court of the United States’ decision in Richardson v
Ramirez (1974). In this case, three men who had served time
for felony convictions in California sued the state for the right
to vote by alleging that the state’s policies denied them the
right to equal protection guaranteed under the U.S.
Constitution’s 14th amendment.276 The Court ruled in favor of
California, stating that the Equal Protection Clause does not
prohibit disenfranchisement policies and that Section 2 of the
14th Amendment allows for states to deny voting rights “for
participation in rebellion, or other crime.”277

However, the Court’s interpretation of the Equal
Protection Clause in Richardson is inconsistent with the court’s
previous decision in Harper v. Virginia Board of Elections
(1966) where the Court found that “the Equal Protection
Clause is not shackled to the political theory of a particular
era.”278 Rather, it “draws much of its substance from changing
social norms and evolving conceptions of equality.”279 The

279 Tribe, Laurence H. American Constitutional Law . (2nd ed.) ed.,
Foundation Press, 1988.

278 Harper v. Virginia Bd. of Elections, 383 U.S. 669 (1966).
277 Richardson v. Ramirez, 418 U.S. 42 (1974).
276 Richardson v. Ramirez, 418 U.S. 24 (1974).
275 Chung et al., “Voting Rights.”
274 Chung et al., “Voting Rights.”

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Court’s inconsistent reasoning on criminal disenfranchisement
laws places more authority in the hands of state legislatures
who continue to limit the rights of formerly incarcerated
Americans.280 This should be an incentive for a law that is
nationally applicable by Congress’ enactment as well as
enforced by the Department of Justice. The proposed Voting
Rights Restoration Act ought to be enacted federally so that
every formerly incarcerated American can participate in the
electoral process, regardless of the state in which they live.

IV. A Message to Lawmakers

While the hypothetical Voting Rights Restoration Act is
a law for fundamental rights and equality, opponents of this
legislation might label the statute as too “soft” on crime.
Lawmakers could argue that felons ought to be restricted from
voting as a means of punishment for the crime(s) they
committed.281 However, this article argues that it is redundant,
cruel, and unjust to deprive formerly incarcerated persons of an
essential right that all Americans are entitled to after they have
already been punished. Additionally, if lawmakers want to
prevent more crimes from occurring, they should endorse the
Voting Rights Restoration Act. The proposed law reintegrates
formerly incarcerated individuals back into their communities,
preventing them from repeating their past mistakes.

A Sentencing Project study concluded that “among
individuals who had been arrested previously, 27 percent of
non-voters were rearrested, compared with 12 percent of
voters.”282 Lawmakers should also support the proposed statute

282 Uggen et al., “Locked out 2020.”

281 Clegg, Roger. “There Are Good Reasons for Felons to Lose the Right to
Vote.” The Heritage Foundation. Accessed May 26, 2023.
https://www.heritage.org/election-integrity/commentary/there-are-good-reas
ons-felons-lose-the-right-vote.

280 Chung et al., “Voting Rights.”

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because “a clear majority of U.S. residents support voting
rights for citizens who have completed their sentence.”283

Ultimately, the constituents of politicians are supportive of
formerly incarcerated individuals exercising their democratic
right to vote in elections, which should be an incentive for
lawmakers to support this proposed super-statute.

A 2018 Pew Research Center survey titled
“Re-enfranchisement for Those Convicted of Felonies” found
that a majority of both Democrats and Republicans support
re-enfranchisement.284 The survey demonstrates that there is a
strong bipartisan sentiment regarding this issue, which is
another reason why lawmakers ought to endorse the
aforementioned act. Before voting against the suggested Voting
Rights Restoration Act, opposing lawmakers should reconsider
their decision based on the law’s fairness, the positive impacts
of prisoner reintegration, and the bipartisan support amongst
Americans for re-enfranchisement.

In closing, the Voting Rights Restoration Act
illuminates the fundamental American principle that every
citizen should be able to vote. The proposed super-statute
would not only seek to stop the disenfranchisement of formerly
incarcerated individuals, but would also specifically aid
communities of color who are disproportionately affected by
the criminal justice system.

The fight for expanding voting rights and criminal
justice reform is not a new endeavor for lawmakers. In fact, the
passages of the Voting Rights Act of 1965, the First Step Act,
and many other laws have enforced the ideas of civic

284 Bialik, Kristen. “How Americans View Some of the Voting Policies
Approved at the Ballot Box.” Pew Research Center, Pew Research Center,
2 Oct. 2020,
https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-so
me-of-the-voting-policies-approved-at-the-ballot-box/.

283 Uggen et al., “Locked out 2020.”

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participation and voting equality under the law. The Voting
Rights Restoration Act seeks to promote these precious norms
by nationally permitting formerly incarcerated people to vote
once they have completed their sentence, are on parole, or are
serving probation. This proposed legislation reflects civic
republicanism and positive liberty in its efforts to make the
democratic system a more inclusive, consistent, and accessible
space for previously incarcerated people. Now is the time for
lawmakers to be brave and support a bill that will reinforce the
United States’ commitment to a more equal and ethical
criminal justice system.285

285 This op-ed was authored in the Spring of 2022. As of 05/18/2023,
Senator Benjamin L. Cardin (D-MD) introduced the Democracy Restoration
Act of 2023. Senator Cardin's Act would restore voting rights to 5.8 million
formerly-incarcerated Americans;

"S.1677 - 118th Congress (2023-2024): Democracy Restoration Act of
2023." Congress.gov, Library of Congress, 18 May 2023,
https://www.congress.gov/bill/118th-congress/senate-bill/1677;

“Democracy Restoration Act.” Ben Cardin U.S. Senator for Maryland:
Press Release, 10 April 2014,
http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:t
ext=The%20Democracy%20Restoration%20Act%20would,back%20living
%20in%20their%20communities.

95

http://www.congress.gov/bill/118th-congress/senate-bill/1677?s=1&amp;r=106
http://www.congress.gov/bill/118th-congress/senate-bill/1677?s=1&amp;r=106
https://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=The%20Democracy%20Restoration%20Act%20would,back%20living%20in%20their%20communities.
https://www.congress.gov/bill/118th-congress/senate-bill/1677
http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=The%20Democracy%20Restoration%20Act%20would,back%20living%20in%20their%20communities
http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=The%20Democracy%20Restoration%20Act%20would,back%20living%20in%20their%20communities
http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=The%20Democracy%20Restoration%20Act%20would,back%20living%20in%20their%20communities


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Bibliography

Bialik, Kristen. “How Americans View Some of the Voting
Policies Approved at the Ballot Box.” Pew Research
Center, Pew Research Center, 2 Oct. 2020,
https://www.pewresearch.org/fact-tank/2018/11/15/how
-americans-view-some-of-the-voting-policies-approved
-at-the-ballot-box/.

Breen, Daniel. 221LGLS: Civil Rights and Civil Liberties:
Legislative. 24 January. 2022, Brandeis University,
Waltham. Class Lecture.

Cardin, Ben. “Democracy Restoration Act.” Ben Cardin U.S.
Senator for Maryland: Press Release, 10 April 2014,
http://www.cardin.senate.gov/press-releases/democracy
-restoration-act/#:~:text=The%20Democracy%20Restor
ation%20Act%20would,back%20living%20in%20their
%20communities.

Chung, Jean, and Amy Fettig. “Voting Rights in the Era of
Mass Incarceration: A Primer.” The Sentencing Project,
3 Sept. 2021,
https://www.sentencingproject.org/publications/felony-
disenfranchisement-a-primer/.

Clegg, Roger. “There Are Good Reasons for Felons to Lose the
Right to Vote.” The Heritage Foundation.
https://www.heritage.org/election-integrity/commentary
/there-are-good-reasons-felons-lose-the-right-vote.

“Criminal Disenfranchisement Laws across the United States.”
Brennan Center for Justice,
https://www.brennancenter.org/our-work/research-repor
ts/criminal-disenfranchisement-laws-across-united-state
s.

Eskridge, William N., and John Ferejohn. Super-Statutes ,
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?art
icle=1108&context=dlj

Potyondy, Patrick. “Felon Voting Rights.” Felon Voting Rights,

96

https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-some-of-the-voting-policies-approved-at-the-ballot-box/
https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-some-of-the-voting-policies-approved-at-the-ballot-box/
https://www.pewresearch.org/fact-tank/2018/11/15/how-americans-view-some-of-the-voting-policies-approved-at-the-ballot-box/
http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=The%20Democracy%20Restoration%20Act%20would,back%20living%20in%20their%20communities
http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=The%20Democracy%20Restoration%20Act%20would,back%20living%20in%20their%20communities
http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=The%20Democracy%20Restoration%20Act%20would,back%20living%20in%20their%20communities
http://www.cardin.senate.gov/press-releases/democracy-restoration-act/#:~:text=The%20Democracy%20Restoration%20Act%20would,back%20living%20in%20their%20communities
https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/
https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/
https://www.heritage.org/election-integrity/commentary/there-are-good-reasons-felons-lose-the-right-vote
https://www.heritage.org/election-integrity/commentary/there-are-good-reasons-felons-lose-the-right-vote
https://www.brennancenter.org/our-work/research-reports/criminal-disenfranchisement-laws-across-united-states
https://www.brennancenter.org/our-work/research-reports/criminal-disenfranchisement-laws-across-united-states
https://www.brennancenter.org/our-work/research-reports/criminal-disenfranchisement-laws-across-united-states
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context=dlj
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context=dlj


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

https://www.ncsl.org/research/elections-and-campaigns/
felon-voting-rights.aspx.

Smith, Ed. “Marijuana Deep Dive: State Policy Updates.”
Marijuana Deep Dive | State Policy Updates,
https://www.ncsl.org/bookstore/state-legislatures-magaz
ine/marijuana-deep-dive.aspx.

Tribe, Laurence H. American Constitutional Law . (2nd ed.)
ed., Foundation Press, 1988.

Uggen, Chris, and Amy Fettig. “Locked out 2020: Estimates of
People Denied Voting Rights Due to a Felony
Conviction.” The Sentencing Project, 13 Aug. 2021,
https://www.sentencingproject.org/publications/locked-
out-2020-estimates-of-people-denied-voting-rights-due-
to-a-felony-conviction/.

Legal Documents and Cases Cited

Constitution of the United States.
https://constitution.congress.gov/constitution/.

Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)
“Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).”

Justia Law,
supreme.justia.com/cases/federal/us/383/663/.

Richardson v. Ramirez, 418 U.S. 24 (1974).
“Richardson v. Ramirez, 418 U.S. 24 (1974).” Justia Law,

supreme.justia.com/cases/federal/us/418/24/.
"S.1677 - 118th Congress (2023-2024): Democracy

Restoration Act of 2023." Congress.gov, Library of
Congress, 18 May 2023,
https://www.congress.gov/bill/118th-congress/senate-bill/
1677.

97

https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx
https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx
https://www.ncsl.org/bookstore/state-legislatures-magazine/marijuana-deep-dive.aspx
https://www.ncsl.org/bookstore/state-legislatures-magazine/marijuana-deep-dive.aspx
https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/
https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/
https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/
https://constitution.congress.gov/constitution/
https://www.congress.gov/bill/118th-congress/senate-bill/1677
https://www.congress.gov/bill/118th-congress/senate-bill/1677


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Regulation: Realities and Possibilities286

Sophia Reiss287

Modern communication technologies increasingly raise
concern. This growing awareness prompts examination of the
effectiveness of current regulation and consideration of
possible changes. This article explores the possibility of using
both previous American regulation and European regulation
efforts as examples to frame improvements in communications
governance. First, it evaluates the Fairness Doctrine and its
role in regulation as part of the Federal Communications
Commission (FCC) and the current Section 230 regulation.
Next, the article reviews proposed amendments and alternative
pathways for regulation before providing a recommendation
based on these regulatory schemes.

I. Introduction

The Supreme Court heard two cases in early 2023
presenting questions of online speech regulation: Gonzalez v.
Google and Twitter v. Taamneh.288 Both cases were brought by
the families of American victims of the 2015 terrorist attacks in
Paris. The families are suing the platforms for their role in
allowing these terrorists to use their platforms in order to
facilitate the attacks.289 These two cases reveal some of the

289 “Twitter, Inc. v. Taamneh,” Oyez,
https://www.oyez.org/cases/2022/21-1496.

288 Brian Fung, “Two Supreme Court Cases This Week Could Upend the
Entire Internet | CNN Business,” CNN, February 20, 2023,
https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.
html.

287 Brandeis University Graduate Class of 2023, Former Editor-in-Chief of
the Brandeis University Law Journal.

286 This article is adapted from an essay recognized for the 2023 Justice
Louis D. Brandeis Essay Prize.

98

https://www.oyez.org/cases/2022/21-1496
https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html
https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html
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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

profound harms that social media can facilitate and challenges
the status quo of current American regulation of online
platforms.

These cases illustrate how online hate and
disinformation influence offline hate, violence, and distrust.
The proliferation of social media platforms, especially the
specialized platforms that appeal to those trafficking in
conspiracies, allow people to fall deeper into the alternative
reality of conspiracy theories, confirm their own implicit
biases, and breed hate. Since social media platforms are run by
private companies, where users are private individuals
operating within a relationship with these companies,
regulation is limited. This is particularly challenging in the
United States given that current communications governance
limits legal liability and public regulation.

Current communications governance heavily depends
on the initial expectations of technology and communications
growth potential at the outset of these new technologies’ arrival
on the marketplace. When the internet first began being
marketed to the public, the U.S. government, specifically
Congress, understood that innovation should be encouraged
and could have positive, far-reaching implications. The
unimaginable possibilities and opportunities of the internet
promised the longed-for progress and growth. The internet
connects people, inspires innovation, broadens access, and
provides information. The focus of early legislation was to
encourage this growth.

In considering new regulation, several tensions need to
be balanced by legislators and regulators. The power and
opportunity for change, growth, understanding, and
constructive debate are fiercely protected by freedom of
speech. There is no question that freedom of speech is a core
value protecting, most centrally, political dissent.290 On the

290 Whitney v. California (1927); Tinker v. Des Moines Independent School

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

other hand, speech has the power and potential to cause
emotional pain, physical violence, social alienation, and
conflict. These emotional, physical, and social harms must be
considered and balanced against the value of freedom of
speech. Other harms exist as well, as speech and dissent can
disrupt and even threaten governmental institutions. This
online environment allows for us to have digital personas,
versions of ourselves which exist online and are created from
our digital actions and behavior. Beyond the offline harms that
online platforms enable, digital personas and one’s personal
digital footprint can also be harmed.

One definition of the verb “balance,” according to
Merriam Webster, is “to bring into harmony or proportion”
which speaks to a kind of equipoise and is the regulatory
solution this article hopes to propose.291 This is vital because
the idea of balance helps to achieve “harmony.” Through
careful weighing of the before-mentioned tensions, regulation
of new technologies should enable creativity, innovation, and
positive change, while mitigating the potential for harm.

This article will propose a regulatory solution based on
elements present in the Fairness Doctrine, Section 230,
proposed amendments, consumer protection laws, and
regulatory strategies in Europe like the GDPR. To do so, the
article will first provide a background and history of each to
delineate the components and precedence that can address the
harms of social media that abound in our current digital
climate. Upon this background, an explanation of a few
potential regulatory responses that are currently being debated
and explored will be offered. Finally, the paper will draw from
the aforementioned regulations and responses to propose a new
governance response which combines the benefits and best

291 “Definition of BALANCE,” February 22, 2023,
https://www.merriam-webster.com/dictionary/balance.

District (1969)

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

techniques of each of the reviewed regulations and proposed
approaches.

II. Background Regulations

A. Fairness Doctrine – Previous Regulation

First, the former regulation system of the Fairness
Doctrine must be examined. The Fairness Doctrine was created
by the Federal Communications Commission (FCC) in 1949 to
regulate “the airwaves” as there was a “scarce supply” of
stations that “were owned by the public, with TV and radio
stations functioning as ‘public trustees.’”292 The Fairness
Doctrine lasted until its repeal by the FCC in 1987 and required
broadcasters to present opposing views on important issues of
public interest.293 The notion that broadcasting licenses serve
the public interest derives from the existence of limited
bandwidth and the FCC’s role in granting licenses with the
public’s participation. The Fairness Doctrine’s requirement of a
well-rounded and fair portrayal serves the public interest.294

294 “Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969),” Justia
Law, https://supreme.justia.com/cases/federal/us/395/367/.

293 Dan MacGuill, “Did Ronald Reagan Pave the Way for Fox News?,”
Snopes, January 26, 2018,
https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/;
“Fairness Doctrine,” Ronald Reagan,
https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine; Dylan
Matthews, “Everything You Need to Know about the Fairness Doctrine in
One Post,” Washington Post (blog), August 23, 2011,
https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-nee
d-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/gIQAN8CX
ZJ_blog.html; Kathleen Ann Ruane, “Fairness Doctrine: History and
Constitutional Issues.”

292 Tom Rosentiel, “Is the Fairness Doctrine Fair Game?,” Pew Research
Center (blog), July 19, 2007,
https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game.

101

https://supreme.justia.com/cases/federal/us/395/367/
https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/
https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/
https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine
https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine
https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/gIQAN8CXZJ_blog.html
https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/gIQAN8CXZJ_blog.html
https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/gIQAN8CXZJ_blog.html
https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/gIQAN8CXZJ_blog.html
https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game/
https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game/


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The Doctrine specifically required “that every licensee devote a
reasonable portion of broadcast time to the discussion and
consideration of controversial issues of public importance.”295

The second component of the Doctrine specified “that
in doing so, [the broadcaster must be] fair – that is, [the
broadcaster] must affirmatively endeavor to make … facilities
available for the expression of contrasting viewpoints held by
responsible elements with respect to controversial issues
presented.”296 This required people on both sides not only to
speak and express their opinions, but also to find the
appropriate presenters to voice opposing viewpoints.297 While
this may have enforced or enabled neutrality, or at least debate,
it also could create false equivalencies, one of the concerns to
be treated with caution for any discussions of reinstatement.
The high efficacy appears clear throughout the Fairness
Doctrine’s record and its continued support from the public and
governmental institutions over the years until its removal.
Regardless of its exact impact, the technique of incorporating
fairness and balance into a doctrine where reasonable
viewpoints must be presented provides a potential model for
future regulation.

The Fairness Doctrine found support in Congress and
the Supreme Court. The Supreme Court unanimously upheld
the Fairness Doctrine due to its focus on the public interest in
the 1969 case Red Lion Broadcasting Co., Inc. v. Federal
Communications Commission.298 In its decision, “[t]he Court
held that the FCC’s [F]airness [D]octrine regulations enhanced
rather than infringed the freedoms of speech protected under

298 Matthews, “Everything You Need to Know about the Fairness Doctrine
in One Post”; “Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367
(1969).”

297 Ruane, “Fairness Doctrine: History and Constitutional Issues.”
296 Ruane, “Fairness Doctrine: History and Constitutional Issues.”
295 Ruane, “Fairness Doctrine: History and Constitutional Issues.”

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the First Amendment.”299 Further, they wrote that “the ‘public
interest’ in broadcasting clearly encompasses the presentation
of vigorous debate of controversial issues of importance and
concern to the public.”300

In 1987, however, the Fairness Doctrine met its demise.
This came about after the FCC decided that “the Fairness
Doctrine was no longer necessary given the changes that had
taken place in the media environment” and had failed to prove
its efficacy.301 While this may seem like definitive proof of its
flaws, closer examination shows that may not be true.
Additionally, the FCC’s statement about the Doctrine’s
necessity can be questioned and the efficacy evaluation may
have been biased and not thoroughly researched. The “1985
Fairness Report,” which the FCC relied on, was the first
“‘empirical assessment as to the efficacy of this chosen
regulatory mechanism to promote access by the public to the
marketplace of ideas’” and included public comment from
many as part of its review process.302 The report met criticism,
including that it “lacked any systematic statistical analysis and
relied too heavily on anecdotal examples by broadcasters.”303

Subsequent to this report, governance changes were
implemented to improve data-gathering practices and the
accuracy of regulatory mechanisms.304

304 “Paradoxes of Media Policy Analysis: Implications for Public Interest
Media Regulation - Document - Gale Academic OneFile Select.”

303 “Paradoxes of Media Policy Analysis: Implications for Public Interest
Media Regulation - Document - Gale Academic OneFile Select.”

302 “Paradoxes of Media Policy Analysis: Implications for Public Interest
Media Regulation - Document - Gale Academic OneFile Select.”

301 “Paradoxes of Media Policy Analysis: Implications for Public Interest
Media Regulation - Document - Gale Academic OneFile Select,”
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7C
A191854511&v=2.1&it=r&ugroup=outside.

300 “Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969).”
299 “Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969).”

103

https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA191854511&v=2.1&it=r&ugroup=outside
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B. Section 230 – Current Regulation

The next section of this paper centers on Section 230.
First, this section will explore Section 230’s historical and
legislative context. Second, the paper will examine the details
of the law itself and Congress’ motivations for putting Section
230 in place. Third, the practical implications and impact of
Section 230 will be evaluated in contrast to its development
and textual priorities.

Section 230 came about through “[t]he
Communications Decency Act of 1996 (CDA)” which “added
Section 230 to the Communications Act of 1934, generally
protecting online service providers from legal liability
stemming from content created by the users of their
services.”305 The law itself explains Congress’ original
rationale for the law. Both its findings and policy objectives
will be examined later in greater depth.306 Section 230 or “47
U.S.C. § 230” not only responded to the innovation of the
internet, but attempted to resolve two prior conflicting cases.307

These cases, namely Cubby, Inc. v. CompuServe, Inc.
and Stratton Oakmont, Inc. v. Prodigy Servs. Co, both dealt
with message board content and the question of whether
platforms are “publishers” of this content.308 The first case,
“Cubby v. CompuServe (1991),” featured the defendant,
CompuServe, who maintained an information service which
included special interest forms and found its way to court
“[w]hen a columnist for one of the special-interest forums

308 “Section 230.”

307 “Section 230: Legislative History,” Electronic Frontier Foundation,
September 18, 2012, https://www.eff.org/issues/cda230/legislative-history.

306 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material,” LII / Legal Information Institute, accessed March 25,
2023, https://www.law.cornell.edu/uscode/text/47/230.

305 Kathleen Ann Ruane, “How Broad A Shield? A Brief Overview of
Section 230 of the Communications Decency Act” (Congressional Research
Service, February 21, 2018).

104

https://www.eff.org/issues/cda230/legislative-history
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posted defamatory comments about a competitor, the
competitor sued CompuServe for libel.”309 The U.S. District
Court for the Southern District of New York, which heard the
case, concluded that “CompuServe could not be held liable as
the columnist’s distributor because CompuServe did not review
any of the content on the forums before it was posted,” which
meant they lacked “knowledge of the libel” and therefore
“could not be held responsible for it.”310

The Court wrote that “CompuServe’s CIS product is in
essence an electronic, for profit library” which is “at the
forefront of the information industry revolution,” and that
allows individuals to have “instantaneous access to thousands
of news publications across the world.”311 The Court continued
that “CompuServe has no more editorial control over such a
publication than does a public library, book store, or
newsstand, and it would be no more feasible for CompuServe
to examine every publication it carries for potentially
defamatory statements than it would be for any other
distributor to do so.”312

The second case, Stratton Oakmont Inc. v. Prodigy
Servs, Co., happened four years after CompuServe, in 1995,
and featured the New York Supreme Court with a differing
opinion on online platforms’ responsibility.313 The case
involved Prodigy, “a web services company” that “hosted
online bulletin boards.”314 This case centered around actions
Prodigy took, namely when “Prodigy moderated its online

314 “Section 230.”
313 “Section 230.”
312 Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).

311 Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991),
accessed March 25, 2023.

310 “Section 230.”; Castro, “Overview of Section 230.”

309 Ashley Johnson and Daniel Castro, “Overview of Section 230: What It
Is, Why It Was Created, and What It Has Achieved,” February 22, 2021,
https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-i
t-was-created-and-what-it-has-achieved/; “Section 230.”

105

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message boards and deleted some messages for ‘offensiveness
and ‘bad taste,’’’ which the Court found made Prodigy “akin to
a publisher with responsibility for defamatory postings that
made it onto the site.”315 Given the multitude of posts on this
platform, specifically “60,000 postings a day,” review of these
for defamatory content would be quite a challenge.316

The first case, CompuServe, appears to be a clearer and
stronger application of precedents to a new technology. The
Court’s comparison between the information service at issue in
the case and a library presents one type of interwoven
relationships and control within the online sphere, which
frames the information service provider as a very hands-off and
structural type of internet operator. The second case, Stratton v.
Prodigy, dealing with a platform that actively moderated its
content while still maintaining a large amount of content
typical of internet services, would be responsible despite no
clear legal precedent providing a background for this
conclusion. This led to a conflict where one platform,
CompuServe, would not be classified as a publisher, therefore
void of any liability for the content on its platform, while
another similar platform, Prodigy, would be classified as a
publisher, leading them to be held liable and responsible for the
content on its platform.

As a result, “Section 230 had two purposes: the first
was to ‘encourage the unfettered and unregulated development
of free speech on the internet,’ as one judge put it; the other
was to allow online services to implement their own standards
for policing content and provide for child safety.”317 Section
230 consists of six sections.318 Section 230 starts with
Congress’ findings and the legislators framing of the context

318 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material.”

317 “Section 230.”
316 “Section 230.”
315 “Section 230.”

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which inspired the law’s creation.319 Congress explained the
need for Section 230 as arising out of “[t]he rapidly developing
array of Internet and other interactive computer services”
which “represent an extraordinary advance in the availability of
educational and informational resources to our citizens.”320

Congress explained that the goals of Section 230 were “to
promote the continued development of the internet and other
interactive computer services and interactive media…to
preserve the vibrant and competitive free market… [and] to
encourage the development of technologies that maximize user
control over information.”321

Through Section 230(c), Congress granted “Protection
for ‘Good Samaritan’ Blocking and Screening of Offensive
Material,” meaning that anyone using the internet sphere would
be treated automatically as being well-intentioned or as “Good
Samaritans.”322 Good Samaritan laws rely on the concept of
good public policy as being that which “limit[s] liability for
those who voluntarily perform care and rescue in emergency
situations.”323 The utilization of this principle in Section 230
exemplifies its wider application, encompassing situations
where limited liability is enforced. Section 230 and the
protections under the “Good Samaritan” header include “[n]o
provider or user of an interactive computer service shall be
held liable” given their “good faith to restrict access” to
content.324 Further, “the good Samaritan law provides
protection from claims of negligence for those who provide

324 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material.”

323 Brian West and Matthew Varacallo, “Good Samaritan Laws,” in
StatPearls (Treasure Island (FL): StatPearls Publishing, 2023),
http://www.ncbi.nlm.nih.gov/books/NBK542176/.

322 “47 U.S. Code § 230.”
321 “47 U.S. Code § 230.”
320 “47 U.S. Code § 230.”

319 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material.”

107

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care without expectation of payment,” which provides an
interesting contradiction when applied to Section 230’s focus
on “interactive computer service” providers and “information
content provider[s],” who are monetizing their roles and
actions.325 These providers are not considered “Good
Samaritans.” Despite this inherent contradiction, the liability
shield within Section 230(c)(1) removes these companies from
liability “as publisher or speaker.”326

Section 230 continues in (c)(2) to state that “[n]o
provider or user of an interactive computer service shall be
held liable on account of” their actions taken either, “to restrict
access to…material… whether or not such material is
constitutionally protected…[or]...to enable or make available to
information content providers.”327 The first part “means online
services are not liable for defamatory or otherwise unlawful
content their users post.”328 In contrast, Section 230(c)(2)
“protects online services from liability for engaging in content
moderation and enforcing their online standards” specifically
for actions “‘taken in good faith.’”329

Section 230(d) explains that providers should “notify
such customers that parental control protections... [exist and]
provide the customer with access to information identifying
current providers of such protections.”330 This appears to
indicate the legislator’s awareness that limited liability would
result in children being left vulnerable absent these extra
controls. Section 230 has minimal effect on other laws.331 The
definitions provide insight into how much the internet has

331 “47 U.S. Code § 230.”

330 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material.”

329 Johnson and Castro, “Overview of Section 230.”
328 Johnson and Castro, “Overview of Section 230.”
327 “47 U.S. Code § 230.”
326 “47 U.S. Code § 230.”

325 West and Varacallo, “Good Samaritan Laws.”; “47 U.S. Code § 230 -
Protection for Private Blocking and Screening of Offensive Material.”

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developed since Section 230 was implemented. Section 230(f)
defines the “[i]nternet,” “interactive computer service,”
“information content provider,” and “access software
provider.”332 The way the “interactive computer service” is
defined is through a comparison to “services offered by
libraries or educational institutions.”333 By continuing to
uphold that image, serving in a similar way to libraries, allows
these services to remain the subject of the limited liability that
Section 230 provides.334

Section 230 also incorporates the way courts interpret
and apply the law and its “[l]iability [s]hield.”335 Section 230 is
applied broadly due to the interactive computer service
definition and the information content provider definitions.336

Section 230 defines “interactive computer service” as “any
information service, system or access software provider that
provides or enables computer access by multiple users to a
computer server.”337 First, the interactive computer service
definition allows for the most broad liability shield which
“[r]eviewing courts have interpreted [the liability shield] to
cover many entities operating online, including broadband
Internet access service providers (e.g., Verizon FIOS and
Comcast Xfinity), Internet hosting companies (e.g., DreamHost
and GoDaddy), search engines (e.g., Google and Yahoo!),
online message boards, and many varieties of online
platforms.”338

338 Ruane, “How Broad A Shield? A Brief Overview of Section 230 of the
Communications Decency Act.”

337 “47 U.S. Code § 230 - Protection for Private Blocking and Screening of
Offensive Material.”

336 Ruane.

335 Ruane, “How Broad A Shield? A Brief Overview of Section 230 of the
Communications Decency Act.”

334 “47 U.S. Code § 230.”
333 “47 U.S. Code § 230.”
332 “47 U.S. Code § 230.”

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The second definition in its application covers “when
[providers] disseminate others’ allegedly unlawful content, but
not when they are wholly or partially responsible for the
production of such content,” or when they are acting as an
“information content provider.”339 As a result, it allowed
business models to proliferate which all “rely on a wide variety
of user generated content” including making possible “user
reviews and comments” through “the liability protection
offered by Section 230.340 So far the courts presented with this
question have decided that editing content does not change the
content enough to remove the platforms’ protection under
Section 230’s liability shield.341 The court’s choice to interpret
editing compared to other actions of the platforms helps frame
how Section 230 categorizes these online services as distinct
from publishers or speakers.342 Section 230 provides a liability
shield for “traditional publishing functions” and editorial
choices including publishing content and withdrawing such
content.343

This aspect of Section 230 protects platforms even
when they remove content, which enables “those same
websites to filter out violent, or graphic content, harassment,
misinformation, hate speech, and other objectionable content,
thereby creating a better user experience.”344 While this appears
to obligate platforms or services to keep users safe, the other
protection specifically from liability for the third-party content
means that there is no obligation to filter content.345 The
obligation does not necessarily create the protective

345 Johnson and Castro, “Overview of Section 230.”
344 Johnson and Castro, “Overview of Section 230.”

343 Ruane, “How Broad a Shield? A Brief Overview of Section 230 of the
Communications Decency Act.”

342 Ruane.

341 Ruane, “How Broad a Shield? A Brief Overview of Section 230 of the
Communications Decency Act.”

340 Johnson and Castro, “Overview of Section 230.”
339 Ruane.

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environment it appears to and as a result, judicial interpretation
makes clear Section 230’s exact scope including the extent and
limits of its protections. As applied, Section 230 does not
protect online platforms if they develop or induce illegal
content, selectively repost content, breach contracts, fail to act
in good faith, or fail to warn users of illegal activity hosted on
their platform.346

Further judicial interpretation has pointed to areas
where Section 230 is unclear, particularly in the face of a vast
and new technology environment.347 This includes cases where
algorithmic sorting was examined by the courts as it appears to
be an unclear issue of immunity where algorithmic filters
content particularly on social media platforms and searches.348

A District of Columbia Circuit Court held that a “search
engine’s tools did ‘not distinguish’ between different types of
user content” and instead simply “translated all types of
information, both legitimate and scam information, in the same
manner.”349

Overall, the practical implications and Section 230’s
legal interpretations result in an unregulated online
environment where platforms maintain user agreements that
hint to filters and where most content can be shared without
repercussions. This environment raises questions about
objectionable content that remains on their site, algorithms that
spread this content, and the general growth and control of Big
Tech. These questions and investigations are complex because
Section 230 assumes that online actors act in “good faith” and

349 Brannon and Holmes, “Section 230: An Overview.”
348 Brannon and Holmes, “Section 230: An Overview.”

347 Valerie C Brannon and Eric N Holmes, “Section 230: An Overview,”
April 7, 2021, 58.

346 Daniel Castro and Ashley Johnson, “The Exceptions to Section 230:
How Have the Courts Interpreted Section 230?,” February 22, 2021,
https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-c
ourts-interpreted-section-230/.

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fully place the obligation for filtering content on the companies
with no examination of how they do it or what content leaves
and what content remains on the platforms.

Further, algorithms which are central to many
platforms’ business models are not addressed by Section 230.
Social media algorithms “can be defined as technical means of
sorting posts based on relevancy” in which the content that the
user sees is prioritized including, at times, based on usage of
the platform.350 The way algorithms curate user experiences
would most likely fall into “editorial decisions,” which
platforms are expected to make in “good faith,” but the public
often has limited information or awareness of how the
algorithms work and change their experiences.

This leaves people to deal with the consequences of the
curated content without recourse, as the algorithms are made
and run by the platforms who can hide behind Section 230’s
“liability shield.” Lastly, the way Big Tech, the largest
companies dominating the technology marketplace, grew and
gained control over the online space was encouraged and
enabled by Section 230, but the consequences of their actions
and algorithms and these companies’ relative power compared
to that of users, regulators, and lawmakers may have been
unforeseen. Indeed, some even argue that the debate over
Section 230 has become a substitute for larger debates around
speech and discussions about how a free marketplace of ideas
can really function.351 Further, these questions relate to who
should be the ones’ deciding how this marketplace should

351 Ovide, Shira. “What’s Behind the Fight Over Section 230.” The New
York Times, March 25, 2021, sec. Technology.
https://www.nytimes.com/2021/03/25/technology/section-230-explainer.htm
l.

350 Maria Alessandra Golino, “Algorithms in Social Media Platforms,” April
24, 2021,
https://www.internetjustsociety.org/algorithms-in-social-media-platforms.

112

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https://www.nytimes.com/2021/03/25/technology/section-230-explainer.html
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work, what happens in response to any harms that ensue, and
who should be responsible.352

III. Potential Responses

A. Proposed Changes to Section 230 – Potential Response 1

As a result of this unregulated technology and media
environment, proposals abound for how to amend Section 230
to fix its flaws to achieve its policy objectives. Some proposed
amendments make the liability protection conditional, others
add “more exceptions” to the liability protection, in addition to
more drastic proposals “to repeal Section 230 entirely,” or
“more incremental rollbacks.”353 Internet companies joined the
flurry of reform proposals with ideas of their own.354 The
rationale for these reforms often goes along the lines of the
need to regulate the vast power of big tech especially with
regard to content removal and the impacts of algorithms on
young people.355 These suggested reforms run counter to
Section 230 proponents, who argue for the law’s preservation
as “its myriad benefits outweigh its few flaws,” especially
given the law’s major role in creating the online world.356

One proposal is the Platform Accountability and
Consumer Transparency Act (PACT Act) which removes
immunity for illegal content, and outlines procedures for

356 Ashley Johnson and Daniel Castro, “Proposals to Reform Section 230,”
February 22, 2021,
https://itif.org/publications/2021/02/22/proposals-reform-section-230/.

355 Brannon and Holmes, “Section 230: An Overview.”

354 Ovide, “What’s Behind the Fight Over Section 230.”; Brannon and
Holmes, “Section 230: An Overview.”

353 Ovide, “What’s Behind the Fight Over Section 230.”; Valerie C Brannon
and Eric N Holmes, “Section 230: An Overview,” April 7, 2021, 58.

352 Ovide, Shira. “What’s Behind the Fight Over Section 230.”

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content removal.357 This proposal faced problems as it conflicts
with the Digital Millennium Copyright Act (DMCA) that
addresses copyright law violations where the law “provides a
‘safe harbor’ to cover providers who remove content after
being notified that the content may” be in violation.358 The
PACT Act may also be changing since “both the DMCA and
the e-Commerce Directive [(a similar EU law)] have also been
subject to debate and proposals for reform.”359 Another
proposal is the “Stopping Big Tech’s Censorship Act” in which
“providers and users may only claim immunity under Section
230(c)(1) if a service ‘takes reasonable steps to prevent or
address the unlawful use’ of the service’ or publication of such
illegal content.”360

The CASE-IT Act also removes platform immunity, but
opts for a different approach.361 The CASE-IT Act has
“providers and users lose Section 230(c)(1) immunity for a
year if they engage in certain activities, including permitting
harmful content to be distributed to minors, if the harmful
content “‘is made readily accessible to minors’” without the
existence or use of systems to prevent this from happening.362

Another similar proposal is “the Safeguarding Against Fraud,
Exploitation, Threats, Extremism, and Consumer Harms
(SAFE TECH) ACT,” which would not provide immunity for
platforms’ “ads or paid content, civil rights law, stalking or
harassment laws, wrongful death actions, or human rights
violations abroad” and failures to take down content in
response to a court order.363 This bipartisan proposal is
supported by advocacy groups including the Anti-Defamation

363 Johnson and Castro, “Proposals to Reform Section 230.”
362 Brannon and Holmes, “Section 230: An Overview.”
361 Brannon and Holmes, “Section 230: An Overview.”
360 Brannon and Holmes, “Section 230: An Overview.”
359 Brannon and Holmes, “Section 230: An Overview.”
358 Brannon and Holmes, “Section 230: An Overview.”
357 Brannon and Holmes, “Section 230: An Overview.”

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League (ADL) and Muslim Advocates.364 Each of these content
and activity carve-outs risk “over-enforcement” as they
“require online services to determine what is legal or illegal,”
and would likely lead them to remove grey area “to avoid
liability.”365 This already took place in response to a similar
carve-out for sex trafficking that passed in 2018.366 The
over-enforcement resulted in a substantial share of material
being removed that had no connection to sex trafficking
harms.367 However, too many exceptions to Section 230 would,
in effect, repeal the law entirely.368 Adding a multitude of
exceptions to the liability shield would not only affect bad
actors benefiting from illegal content, but platforms genuinely
trying to prevent and remove illegal content.369

The Ending Support for Internet Censorship Act would
require companies of a certain size, or with a particular level of
revenue, “to prove to the Federal Trade Commission every two
years that their algorithms and content moderation practices are
politically neutral in order to receive Section 230 liability

369 Johnson and Castro, “Proposals to Reform Section 230.”
368 Johnson and Castro, “Proposals to Reform Section 230.”
367 Johnson and Castro, “Proposals to Reform Section 230.”
366 Johnson and Castro, “Proposals to Reform Section 230.”
365 Johnson and Castro, “Proposals to Reform Section 230.”

364 Chris Riley and David Morar, “Legislative Efforts and Policy
Frameworks within the Section 230 Debate,” Brookings (blog), September
21, 2021,
https://www.brookings.edu/techstream/legislative-efforts-and-policy-frame
works-within-the-section-230-debate/; “Muslim Advocates Applauds New
Bill to Enact Reforms to Section 230,” Muslim Advocates, February 5,
2021,
https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-
adding-reforms-to-section-230/; “ADL Supports Reforming Section 230 of
the Communications Decency Act to Hold Tech Companies Accountable,
Prioritize Users and Protect Civil Rights | ADL,” accessed April 6, 2023,
https://www.adl.org/resources/press-release/adl-supports-reforming-section-
230-communications-decency-act-hold-tech.

115

https://www.brookings.edu/techstream/legislative-efforts-and-policy-frameworks-within-the-section-230-debate/
https://www.brookings.edu/techstream/legislative-efforts-and-policy-frameworks-within-the-section-230-debate/
https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-adding-reforms-to-section-230/
https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-adding-reforms-to-section-230/
https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech
https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

protection.”370 This is most clearly akin to the Fairness
Doctrine given its emphasis on balanced presentation.371

Another proposal focuses on algorithms by limiting federal
immunity from liability for technology companies when their
platform’s algorithms recommend third party content that
“cause physical or emotional injury.”372 Other proposals
encourage the creation of “[b]ehavioral [s]tandards” for
“sufficiently responsible behavior and establish enforcement
mechanisms that evaluate compliance (while navigating First
Amendment limits on government restriction of corporate
speech).”373 This includes the Online Freedom and Viewpoint
Diversity Act, the EARN IT Act, and a proposal by Mark
Zuckerberg.374

Lastly, repeals of Section 230 are proposed to enforce
accountability through liability and remove the protections of
early innovations as it is no longer necessary to protect the
early trial-and-error period of these companies. While there
may be a concern that without Section 230 free speech and
exchanges of ideas online would be restricted, government
action and restrictions would still be limited by the First
Amendment.375 Further, the First Amendment would provide
background protections for speakers and publishers, like those
offline, while there would be less consistent and vast immunity
protections for the platforms.376

376 Brannon and Holmes, “Section 230: An Overview.”
375 Brannon and Holmes, “Section 230: An Overview.”

374 Riley and Morar, “Legislative Efforts and Policy Frameworks within the
Section 230 Debate.”

373 Riley and Morar, “Legislative Efforts and Policy Frameworks within the
Section 230 Debate.”

372 "H.R.5596 - 117th Congress (2021-2022): Justice Against Malicious
Algorithms Act of 2021." Congress.gov, Library of Congress, 18 October
2021, https://www.congress.gov/bill/117th-congress/house-bill/5596.

371 Johnson and Castro, “Proposals to Reform Section 230.”
370 Johnson and Castro, “Proposals to Reform Section 230.”

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B. Consumer Protection Laws – Potential Response 2

Although Section 230 may appear as the only legal
avenue through which platform regulation and the
conversations around it is possible, there are other legal
avenues through which online speech could be regulated to
comply and fulfill the high expectations that these technology
companies regularly set. For instance, these goals can be
achieved through consumer protection laws; specifically, laws
that prohibit Unfair, Deceptive Acts and Practices (UDAPS).
Such laws particularly focus on upholding the public interest as
the core expectation behind these companies actions and
treatment of their users.

In addition to overseeing antitrust law, the Federal
Trade Commission (FTC) monitors consumer protection
violations.377 While “Section 5 does not define ‘unfair or
deceptive acts or practices’” it does state that, “a practice is not
‘unfair’ unless it ‘causes or is likely to cause substantial injury
to consumers which is not reasonably avoidable by consumers
themselves and not outweighed by countervailing benefits to
consumers or to competition.”378 Beyond the federal law and its
enforcement through federal agencies, “[s]tates have crafted
their own consumer protection laws based on a handful of
model acts (including the FTC Act)” which aim to protect
consumers from unfair and deceptive acts and practices.379

These entities are all able to “bring similar lawsuits alleging

379 Canzona, “I’ll Know It When I See It.”

378 Eric N. Holmes, “Unfair or Deceptive Acts or Practices (UDAP)
Enforcement Authority Under the Federal Trade Commission Act”
(Congressional Research Service, November 4, 2022),
https://crsreports.congress.gov/product/pdf/IF/IF12244.

377 “Consumer Protection Laws,” LII / Legal Information Institute, accessed
April 10, 2023,
https://www.law.cornell.edu/wex/consumer_protection_laws.

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UDAP-based violations” to act in the public interest, as well as
consumers or advocacy groups.380

In relation to social media regulation, consumer
protection laws like UDAP provide an avenue for the public
interest to be protected, given the special role these technology
companies hold within society. As Jack M Balkin, Knight
Professor of Constitutional Law and the First Amendment at
Yale Law School, notes, “[s]ocial media companies and search
engines have social and moral obligations to the public” that
arise out of their role in society.381 These companies often
voluntarily categorize themselves as places “to promote
public-spirited goals,” and therefore should “act according to
public-regarding, professional norms.”382 Given that their
innovations often revolve around providing a space for positive
developments like greater and stronger interconnection, access,
and creativity; these companies, like other technology
companies, provide a useful service to society.

When these companies choose to frame themselves in
this way, act to provide such services, and take on such
obligations as those Balkin discusses, they become legally
obligated to hold themselves accountable to their own
self-portrayal. The public should be able to expect that these
companies are being honest with users and the public. The
UDAPs do just that, holding the companies accountable to their
public portrayal by prohibiting false promises and unfair and
deceptive behavior. Social media companies illustrate this as
they often declare in Congress how safe their platforms are and
how they enforce their user agreements, while users and

382 Balkin, “Free Speech Is a Triangle.”

381Balkin, Jack M., Free Speech is a Triangle (May 28, 2018). Columbia
Law Review, 2018, Forthcoming, Yale Law School, Public Law Research
Paper No. 640, https://ssrn.com/abstract=3186205

380 Holmes, “Unfair or Deceptive Acts or Practices (UDAP) Enforcement
Authority Under the Federal Trade Commission Act.”

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

advocacy groups find that they still face the same unsafe
behavior banned by these user agreements.

The FTC and State Attorneys General enforce
consumer protection laws with regard to privacy and
“[r]especting [c]onsumer [c]hoice” with respect to
“[d]o-not-track settings on browsers which prevent advertisers
from tracking consumers’ online activities.”383 Consumer
protection laws and UDAPs, in particular, already protect
consumers from financial injury, but the vital question here is
whether courts will see these laws as fit to protect consumers
from online companies.

In 2021, Muslim Advocates, a Muslim civil rights
advocacy group, sued Facebook and Facebook executives for
deception over their actions relating to the content on the
platform.384 The lawsuit, using the D.C. Consumer Protection
Procedures Act, or the DC CPPA, “allege[d] that Facebook
ha[d] exaggerated how aggressively it remove[d] hate speech”
in violation of the law.385 Facebook’s actions specifically
violated the DC CPPA, as it states that “it is illegal for a
company to make material misrepresentations about a good or
service in the District of Columbia.” Muslim Advocates asked
for Facebook to either “[s]top lying, or have your actions
conform to your statements.”386 Importantly, Muslim
Advocates’ assertions centered on the statements of Facebook
executives and the user agreement’s community standards that
frame users’ expectations of safety on their platform. While

386 Allyn, “Muslim Advocates Has Filed A Lawsuit Against Facebook.”
385 Allyn, “Muslim Advocates Has Filed A Lawsuit Against Facebook.”

384 Bobby Allyn, “Muslim Advocates Has Filed A Lawsuit Against
Facebook,” NPR, April 8, 2021, sec. Religion,
https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-l
awsuit-against-facebook.

383 Danielle Keats Citron, “The Privacy Policymaking of State Attorneys
General,” Notre Dame Law Review 92, no. 2 (December 2016),
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7C
A484155772&v=2.1&it=r&ugroup=outside.

119

https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-lawsuit-against-facebook
https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-lawsuit-against-facebook
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA484155772&v=2.1&it=r&ugroup=outside
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA484155772&v=2.1&it=r&ugroup=outside


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

this method of using consumer protection laws is still being
tested, given its efficacy and broad application elsewhere, it
could provide a model for accountability and necessary
enforcement to counteract failures to uphold one’s duty to
serve the public interest.

C. European Union’s Solutions – Potential Response 3

In this section, the paper turns to the European Union
because it stands out as a model given the promise shown in
their active regulation of Big Tech with far-ranging impacts
and strong popularity among the public.387 These impacts are
apparent since when those companies are fined, they often
improve their behavior and apply the changes required by the
EU’s regulation worldwide for ease of operation.388 The
popularity of these regulations, which will be explained in this
paragraph, derives from how the regulatory laws themselves
are written, which often give citizens more information and
control with regard to their own data and experience.389

The European Union seeks to meet the needs that arise
out of these new technologies through a focus on privacy and
data protection. The laws and regulation of privacy online,
specifically data privacy protections, is known as the General
Data Protection Regulation (GDPR). The GDPR went into
effect in 2018, after passing in 2016, in order to give
companies and countries time to prepare for this robust
legislation.390 The GDPR grew out of the right to privacy

390 “Data Protection in the EU,” June 4, 2021,
https://commission.europa.eu/law/law-topic/data-protection/data-protection-

389 Amaro, “How Europe Became the World’s Top Tech Regulator.”
388 Amaro, “How Europe Became the World’s Top Tech Regulator.”

387 Silvia Amaro, “How Europe Became the World’s Top Tech Regulator,”
CNBC, March 25, 2021,
https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds
-top-regulator.html.

120

https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en
https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds-top-regulator.html
https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds-top-regulator.html


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

codified in the 1950 European Convention on Human Rights
which states, “Everyone has the right to respect for his private
and family life, his home and his correspondence.”391

The GDPR is one of a series of new technology
governance laws in which the EU worked to protect one’s right
to privacy within legislation.392 The way the GDPR functions
with its definitions, and specification of both the rights and
requirements for companies, enables a clear and
comprehensive application. The burden of proof is placed on
the company fulfilling GDPR requirements.393 Further, both
national institutions within the European Union member states
and international institutions exist that help enforce the
regulations of the GDPR.394 One example of these international
institutions is the European Data Protection Board (EDPB)
which is an independent regulatory body charged with
maintaining “the consistent application of data protection rules
throughout the European Union” established by the GDPR and
that includes representatives of the national entities, an EU
supervisor, and non-voting involvement of the European
Commission.395

Since the GDPR, the European Union has continued to
focus on technology and is creating “[t]he Digital Services

395 “Data Protection in the EU.”

394 “Data Protection in the EU,” June 4, 2021,
https://commission.europa.eu/law/law-topic/data-protection/data-protection-
eu_en.

393 “What Is GDPR, the EU’s New Data Protection Law?”
392 “What Is GDPR, the EU’s New Data Protection Law?”
391 “What Is GDPR, the EU’s New Data Protection Law?”

eu_en; “Regulation (EU) 2016/679 of the European Parliament and of the
Council of 27 April 2016 on the Protection of Natural Persons with Regard
to the Processing of Personal Data and on the Free Movement of Such Data,
and Repealing Directive 95/46/EC (General Data Protection Regulation)
(Text with EEA Relevance),” 119 OJ L § (2016),
http://data.europa.eu/eli/reg/2016/679/oj/eng; “What Is GDPR, the EU’s
New Data Protection Law?,” GDPR.eu, November 7, 2018,
https://gdpr.eu/what-is-gdpr/.

121

https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en
https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en
https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en
http://data.europa.eu/eli/reg/2016/679/oj/eng
https://gdpr.eu/what-is-gdpr/


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

package” which includes both the “Digital Services Act and
Digital Markets Act.”396 In addition to this package, more
regulation is being worked on to govern artificial
intelligence.397 The European Commission states that “[t]he
Digital Services Act and Digital Markets Act aim to create a
safer digital space where the fundamental rights of users are
protected and to establish a level playing field for
businesses.”398 It appears to focus on the same kinds of
companies as Section 230, with a similar overarching goal.

This prompts the question: what, if anything, is really
different between Section 230 and the EU’s efforts? Perhaps
the European Union learned from the mistakes of Section 230.
Their laws came later, allowing for a stronger understanding of
the technologies at play.399 Following their adoption in July
2022, these EU laws began taking effect by 17 February 2023,
when the regulatory authorities categorized services into a size
and type category that will frame the requirements that they
need to meet.400 These newest pieces of regulation will be fully
in place by 2024 and also include several checkpoints that
technology companies need to meet along the way to ensure
full compliance and incorporate accountability mechanisms.401

401 “The Digital Services Act Package | Shaping Europe’s Digital Future.”
400 “The Digital Services Act Package | Shaping Europe’s Digital Future.”
399 “The Digital Services Act Package | Shaping Europe’s Digital Future.”

398 “The Digital Services Act Package | Shaping Europe’s Digital Future,”
February 9, 2023,
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package.

397 “The Digital Services Act Package | Shaping Europe’s Digital Future,”
February 9, 2023,
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package;
Amaro, “How Europe Became the World’s Top Tech Regulator.”

396 “The Digital Services Act Package | Shaping Europe’s Digital Future,”
February 9, 2023,
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package;
Amaro, “How Europe Became the World’s Top Tech Regulator.”

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The Digital Services Act “proposed large fines for
internet platforms like Facebook, Twitter [(now known as 𝕏)]
and YouTube if they do not restrict the spread of certain illegal
content like hate speech.”402 This is similar to the GDPR’s large
fines, which often make a big splash in the news.403 Widely,
“GDPR fines are used to fund public services,” a model that
would likely be replicated with these newer regulations.404

These fines, while quite substantial, are applied taking into
account the companies’ size and offense so as to remain
proportional.405 For the GDPR, “[t]here are two tiers of
penalties which max out at $20 million or 4% of global
revenue (whichever is higher),” as well as enabling those
harmed “to seek compensation for damages.”406 Further,
composition, explanation, and implementation of these
regulations takes into account all of the players involved:
individuals, the technology companies, business users, and
society.407 In these regulations, the EU often requires
compliance to be built into the structure of companies. For
example, the GDPR outlines implementation of data security
training, specifies the responsibilities of data protection within

407 “The Digital Services Act: Ensuring a Safe and Accountable Online
Environment,” accessed April 13, 2023,
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/euro
pe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-
environment_en.

406 “What Is GDPR, the EU’s New Data Protection Law?”
405 “What Is GDPR, the EU’s New Data Protection Law?”
404 “Three Years of GDPR.”

403 “Three Years of GDPR: The Biggest Fines so Far,” BBC News, May 24,
2021, sec. Technology, https://www.bbc.com/news/technology-57011639.

402 Adam Satariano, “Big Fines and Strict Rules Unveiled Against ‘Big
Tech’ in Europe,” The New York Times, December 15, 2020, sec.
Technology,
https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europ
e.html.

123

https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en
https://www.bbc.com/news/technology-57011639
https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europe.html
https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europe.html


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

teams, and details Data Protection Officer requirements for
certain organizations.408

These regulations are met with what Dessislava Savova
describes as “‘a real willingness and wide political support in
the EU to set the highest global standards when it comes to
tech regulations.’”409 She further notes that the Digital Services
“‘package will be a real game changer’” as “‘[i]t will create a
single regulatory framework and will set up a foundation of a
strong cooperation and a new governance structure in the EU,
with tangible enforcement mechanisms and important
sanctions.’”410 Further, the New York Times notes that these
regulations, along with some national ones, “helped reinforce
Europe as home to some of the world’s toughest policies
toward the technology industry.”411

IV. New Plan Inspired by This History – This Paper’s

Solution

This section will present the pros and cons of each of
the previously discussed regulations and how they could be
combined in such a way that improves upon these regulatory
schemes. First, this section will outline the positives of each
regulatory method; second, it will address their limitations;
third, it will offer a multipronged recommendation.

411 Satariano, “Big Fines and Strict Rules Unveiled Against ‘Big Tech’ in
Europe.”

410 Amaro, “How Europe Became the World’s Top Tech Regulator.”
409 Amaro, “How Europe Became the World’s Top Tech Regulator.”
408 “What Is GDPR, the EU’s New Data Protection Law?”

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A. Favorable Aspects of these Regulations

The Fairness Doctrine proved effective at instilling
balance in regulatory schemes by encouraging technological
innovation while safeguarding the public’s interest in being
informed on issues of public concern and safety. Broadcast
stations developed within the Fairness Doctrine’s regulatory
realm introduced and popularized these new technologies. At
the same time, the Supreme Court endorsed the Fairness
Doctrine’s role in promoting free speech and an informed
public.

Section 230 attempted to balance and incorporate
similar interests through a different mechanism. Section 230
used an almost absolute liability shield that enabled online
platforms and services to develop and grow tremendously. This
enabled technology companies to create different strategies and
approaches to content on their platforms, including algorithms.
The Section 230 reforms present promising solutions.
Consumer protection laws prove effective in other markets as
they prevent misrepresentation and unfair treatment of
consumers. The European Union’s solutions promote
accountability through massive fines and illustrate a strong
protection-based approach.

B. Limitations of These Regulations

The Fairness Doctrine lacked enough meaningful
buy-in from broadcasters as well as clear methods to maintain
accountability as a regulation long-term because it became
difficult to evaluate or prove its efficacy. Section 230 failed at
maintaining balance because the interpretation of the liability
shield prevented technology companies from being held
accountable. Both the Section 230 reforms and the consumer
protection laws remain relatively untested within the online

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

environment and technology companies at large. There are
many Section 230 reforms proposed and many, while framed
similarly, promote vastly different approaches. Despite some
gaining momentum recently, it is unclear when and how they
would be applied.

The European Union’s solutions build more regulatory
structures and focus on privacy, which distinguishes it from
American regulations. Further, the strict protection of freedom
of speech existing in the United States is unparalleled
elsewhere, including in the EU, so the EU’s solutions may not
fit with American free speech absolutism. Also, there may be
concerns amongst United States legislators about stopping the
growth of technology companies through strict regulation.

C. The Outlined Recommendation

From this background, the new proposal is one which
welcomes regulation not as a hindrance to growth, innovation,
and freedom, but as something that enables and protects it. An
informed public’s access to information is no longer confined
solely to news media. Thus, regulations regarding who is
informing the public and how they are being informed must
expand its range to include the context of online platforms. The
standard should be elevated from a basic level of protecting the
ability to hear both sides of a matter to consumers being
informed about their privacy, their safety, and the
accountability of the platforms they are on.

Strong understandings of technology companies and
how their products work must be incorporated into the
background of the new proposed regulation. The Fairness
Doctrine lacked this element as it failed to understand the
practical approaches it encouraged broadcasters to take and the
challenges that came with that approach. There must be a
careful understanding of the interests, innerworkings, and

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Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

particular context of the technology companies to avoid
pushback from the companies. Following the Fairness
Doctrine’s balanced approach to speech, new regulation should
promote free speech through providing content-neutral
regulation and not tell companies what to regulate, but how to
regulate content: evenly and fairly.

Parts of the regulations mentioned above fit this
proposed framework. For instance, one of Section 230’s
proposed reforms, the SAFE TECH Act, illustrates how
comprehension of technology companies and true
accountability can be built into an American framework.
Simply copying the effective methods of the European Union’s
regulation would not be ideal as the American context is just
that: American. This distinction requires understanding and
incorporation of respect for American ideals, including a
broader protection for freedom of speech and the promotion of
innovation. The EU’s privacy law, the GDPR, should be
incorporated to a certain extent, as we generally lack privacy
laws and data protection. This is already starting in California,
but beyond incorporating the GDPR and other EU laws, our
approaches could be inspired by theirs. Our regulations could
be more effective following the multipronged approach found
in the European Union’s regulations where rights are defined,
expectations are outlined, compliance is formalized,
compliance guidelines are clear, and meaningful fines are
incorporated.

Together, the history and potential future of technology
regulation show promise. Regulation promoting both the public
interest in tandem with encouraging innovation has existed
previously and continues to exist. Understanding the public
interest, policy concerns, new technology, historical regulation,
business impact, and the innovation and online environments is
crucial to a successful and balanced regulatory approach.

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Bibliography

“ADL Supports Reforming Section 230 of the
Communications Decency Act to Hold Tech Companies
Accountable, Prioritize Users and Protect Civil Rights |
ADL.” Accessed March 27, 2023.
https://www.adl.org/resources/press-release/adl-supports-r
eforming-section-230-communications-decency-act-hold-t
ech.

Allyn, Bobby. “Muslim Advocates Has Filed A Lawsuit
Against Facebook.” NPR, April 8, 2021, sec. Religion.
https://www.npr.org/2021/04/08/985475645/muslim-advoc
ates-has-filed-a-lawsuit-against-facebook.

Amaro, Silvia. “How Europe Became the World’s Top Tech
Regulator.” CNBC, March 25, 2021.
https://www.cnbc.com/2021/03/25/big-tech-how-europe-b
ecame-the-worlds-top-regulator.html.

Anand, Meghan, Kiran Jeevanjee, Daniel Johnson, Quinta
Jurecic, Brian Lim, Irene Ly, Matt Perault, et al. “All the
Ways Congress Wants to Change Section 230.” Slate,
March 23, 2021.
https://slate.com/technology/2021/03/section-230-reform-l
egislative-tracker.html.

Balkin, Jack M., Free Speech is a Triangle (May 28, 2018).
Columbia Law Review, 2018, Forthcoming, Yale Law
School, Public Law Research Paper No. 640,
https://ssrn.com/abstract=3186205.

Bambauer, Derek E. “How Section 230 Reform Endangers
Internet Free Speech.” Brookings (blog), July 1, 2020.
https://www.brookings.edu/techstream/how-section-230-re
form-endangers-internet-free-speech/.

BBC News. “Three Years of GDPR: The Biggest Fines so Far.”
May 24, 2021, sec. Technology.
https://www.bbc.com/news/technology-57011639.

Brannon, Valerie C, Nina M Hart, Eric N Holmes, and Chris D

128

https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech
https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech
https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech
https://www.adl.org/resources/press-release/adl-supports-reforming-section-230-communications-decency-act-hold-tech
https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-lawsuit-against-facebook
https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-lawsuit-against-facebook
https://www.npr.org/2021/04/08/985475645/muslim-advocates-has-filed-a-lawsuit-against-facebook
https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds-top-regulator.html
https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds-top-regulator.html
https://www.cnbc.com/2021/03/25/big-tech-how-europe-became-the-worlds-top-regulator.html
https://slate.com/technology/2021/03/section-230-reform-legislative-tracker.html
https://slate.com/technology/2021/03/section-230-reform-legislative-tracker.html
https://slate.com/technology/2021/03/section-230-reform-legislative-tracker.html
https://ssrn.com/abstract=3186205
https://www.brookings.edu/techstream/how-section-230-reform-endangers-internet-free-speech/
https://www.brookings.edu/techstream/how-section-230-reform-endangers-internet-free-speech/
https://www.brookings.edu/techstream/how-section-230-reform-endangers-internet-free-speech/
https://www.bbc.com/news/technology-57011639
https://www.bbc.com/news/technology-57011639


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Linebaugh. “UPDATE: Section 230 and the Executive
Order on Preventing Online Censorship,”

Brannon, Valerie C, and Eric N Holmes. “Section 230: An
Overview,” April 7, 2021, 58.

Caitlin Bassett. “Section 230: What Is It and Why the
Controversy?” Mind Matters, August 8, 2010.
https://mindmatters.ai/2021/08/section-230-what-is-it-and-
why-the-controversy/.

Castro, Daniel, and Ashley Johnson. “The Exceptions to
Section 230: How Have the Courts Interpreted Section
230?,” February 22, 2021.
https://itif.org/publications/2021/02/22/exceptions-section-
230-how-have-courts-interpreted-section-230/.

Chung, Andrew. “As U.S. Supreme Court Weighs YouTube’s
Algorithms, ‘Litigation Minefield’ Looms.” Reuters,
February 17, 2023, sec. Legal.
https://www.reuters.com/legal/us-supreme-court-weighs-y
outubes-algorithms-litigation-minefield-looms-2023-02-17
/.

Citron, Danielle Keats. “The Privacy Policymaking of State
Attorneys General.” Notre Dame Law Review 92, no. 2
(December 2016).
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis
&id=GALE%7CA484155772&v=2.1&it=r&ugroup=outsi
de.

CNN, By Brian Fung and Tierney Sneed. “Supreme Court
Hears Gonzalez v. Google Case against Big Tech.” CNN.
Accessed February 25, 2023.
https://www.cnn.com/business/live-news/supreme-court-g
onzalez-v-google-2-21-23/index.html.

Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y.
1991). Accessed March 25, 2023.

“Data Protection in the EU,” June 4, 2021.
https://commission.europa.eu/law/law-topic/data-protectio
n/data-protection-eu_en.

129

https://mindmatters.ai/2021/08/section-230-what-is-it-and-why-the-controversy/
https://mindmatters.ai/2021/08/section-230-what-is-it-and-why-the-controversy/
https://mindmatters.ai/2021/08/section-230-what-is-it-and-why-the-controversy/
https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-courts-interpreted-section-230/
https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-courts-interpreted-section-230/
https://itif.org/publications/2021/02/22/exceptions-section-230-how-have-courts-interpreted-section-230/
https://www.reuters.com/legal/us-supreme-court-weighs-youtubes-algorithms-litigation-minefield-looms-2023-02-17/
https://www.reuters.com/legal/us-supreme-court-weighs-youtubes-algorithms-litigation-minefield-looms-2023-02-17/
https://www.reuters.com/legal/us-supreme-court-weighs-youtubes-algorithms-litigation-minefield-looms-2023-02-17/
https://www.reuters.com/legal/us-supreme-court-weighs-youtubes-algorithms-litigation-minefield-looms-2023-02-17/
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA484155772&v=2.1&it=r&ugroup=outside
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA484155772&v=2.1&it=r&ugroup=outside
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA484155772&v=2.1&it=r&ugroup=outside
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA484155772&v=2.1&it=r&ugroup=outside
https://www.cnn.com/business/live-news/supreme-court-gonzalez-v-google-2-21-23/index.html
https://www.cnn.com/business/live-news/supreme-court-gonzalez-v-google-2-21-23/index.html
https://www.cnn.com/business/live-news/supreme-court-gonzalez-v-google-2-21-23/index.html
https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en
https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en
https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

“Data Protection in the EU,” June 4, 2021.
https://commission.europa.eu/law/law-topic/data-protectio
n/data-protection-eu_en.

“Definition of BALANCE,” February 22, 2023.
https://www.merriam-webster.com/dictionary/balance.

Electronic Frontier Foundation. “Section 230: Legislative
History,” September 18, 2012.
https://www.eff.org/issues/cda230/legislative-history.

Federal Communication Commission. Fairness Report, 1985.
http://archive.org/details/FairnessReport.

“Finally, an Interesting Proposal for Section 230 Reform |
WIRED.” Accessed March 27, 2023.
https://www.wired.com/story/section-230-reform-safe-tech
-act/.

Fung, Brian. “Two Supreme Court Cases This Week Could
Upend the Entire Internet | CNN Business.” CNN,
February 20, 2023.
https://www.cnn.com/2023/02/20/tech/supreme-court-tech
-platforms/index.html.

GDPR.eu. “What Is GDPR, the EU’s New Data Protection
Law?,” November 7, 2018. https://gdpr.eu/what-is-gdpr/.

Holmes, Eric N. “Unfair or Deceptive Acts or Practices
(UDAP) Enforcement Authority Under the Federal Trade
Commission Act.” Congressional Research Service,
November 4, 2022.
https://crsreports.congress.gov/product/pdf/IF/IF12244.

ISD. “Online Civil Courage Initiative (OCCI).” Accessed
March 25, 2023.
https://www.isdglobal.org/isd-programmes/online-civil-co
urage-initiative-occi/.

Johnson, Ashley, and Daniel Castro. “Overview of Section
230: What It Is, Why It Was Created, and What It Has
Achieved,” February 22, 2021.
https://itif.org/publications/2021/02/22/overview-section-2
30-what-it-why-it-was-created-and-what-it-has-achieved/.

130

https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en
https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en
https://commission.europa.eu/law/law-topic/data-protection/data-protection-eu_en
https://www.merriam-webster.com/dictionary/balance
https://www.merriam-webster.com/dictionary/balance
https://www.eff.org/issues/cda230/legislative-history
https://www.eff.org/issues/cda230/legislative-history
http://archive.org/details/FairnessReport
http://archive.org/details/FairnessReport
https://www.wired.com/story/section-230-reform-safe-tech-act/
https://www.wired.com/story/section-230-reform-safe-tech-act/
https://www.wired.com/story/section-230-reform-safe-tech-act/
https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html
https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html
https://www.cnn.com/2023/02/20/tech/supreme-court-tech-platforms/index.html
https://gdpr.eu/what-is-gdpr/
https://crsreports.congress.gov/product/pdf/IF/IF12244
https://crsreports.congress.gov/product/pdf/IF/IF12244
https://www.isdglobal.org/isd-programmes/online-civil-courage-initiative-occi/
https://www.isdglobal.org/isd-programmes/online-civil-courage-initiative-occi/
https://www.isdglobal.org/isd-programmes/online-civil-courage-initiative-occi/
https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-it-was-created-and-what-it-has-achieved/
https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-it-was-created-and-what-it-has-achieved/
https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-it-was-created-and-what-it-has-achieved/


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

“Proposals to Reform Section 230,” February 22, 2021.
https://itif.org/publications/2021/02/22/proposals-reform-s
ection-230/.

Justia Law. “Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S.
367 (1969),”
https://supreme.justia.com/cases/federal/us/395/367/.

“Justice Department Issues Recommendations for Section 230
Reform,” June 17, 2020.
https://www.justice.gov/opa/pr/justice-department-issues-r
ecommendations-section-230-reform.

LII / Legal Information Institute. “47 U.S. Code § 230 -
Protection for Private Blocking and Screening of
Offensive Material.” Accessed March 25, 2023.
https://www.law.cornell.edu/uscode/text/47/230.

LII / Legal Information Institute. “Consumer Protection Laws.”
Accessed April 10, 2023.
https://www.law.cornell.edu/wex/consumer_protection_la
ws.

MacGuill, Dan. “Did Ronald Reagan Pave the Way for Fox
News?” Snopes, January 26, 2018.
https://www.snopes.com/fact-check/ronald-reagan-fairness
-doctrine/.

“Mark Zuckerberg, Joe Manchin, and ISIS: What Facebook’s
International Terrorism Lawsuits Can Teach Us About the
Future of Section 230 Reform - ProQuest.” Accessed
March 27, 2023.
https://www.proquest.com/docview/2607798213?pq-origsi
te=primo&parentSessionId=Qy8kWub2J%2BYn0ettX8QF
udLPP8V4a8fOnSVuHXfNC6A%3D.

Matthews, Dylan. “Everything You Need to Know about the
Fairness Doctrine in One Post.” Washington Post (blog),
August 23, 2011.
https://www.washingtonpost.com/blogs/ezra-klein/post/ev
erything-you-need-to-know-about-the-fairness-doctrine-in-
one-post/2011/08/23/gIQAN8CXZJ_blog.html.

131

https://itif.org/publications/2021/02/22/proposals-reform-section-230/
https://itif.org/publications/2021/02/22/proposals-reform-section-230/
https://itif.org/publications/2021/02/22/proposals-reform-section-230/
https://supreme.justia.com/cases/federal/us/395/367/
https://www.justice.gov/opa/pr/justice-department-issues-recommendations-section-230-reform
https://www.justice.gov/opa/pr/justice-department-issues-recommendations-section-230-reform
https://www.justice.gov/opa/pr/justice-department-issues-recommendations-section-230-reform
https://www.law.cornell.edu/uscode/text/47/230
https://www.law.cornell.edu/uscode/text/47/230
https://www.law.cornell.edu/wex/consumer_protection_laws
https://www.law.cornell.edu/wex/consumer_protection_laws
https://www.law.cornell.edu/wex/consumer_protection_laws
https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/
https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/
https://www.snopes.com/fact-check/ronald-reagan-fairness-doctrine/
https://www.proquest.com/docview/2607798213?pq-origsite=primo&parentSessionId=Qy8kWub2J%2BYn0ettX8QFudLPP8V4a8fOnSVuHXfNC6A%3D
https://www.proquest.com/docview/2607798213?pq-origsite=primo&parentSessionId=Qy8kWub2J%2BYn0ettX8QFudLPP8V4a8fOnSVuHXfNC6A%3D
https://www.proquest.com/docview/2607798213?pq-origsite=primo&parentSessionId=Qy8kWub2J%2BYn0ettX8QFudLPP8V4a8fOnSVuHXfNC6A%3D
https://www.proquest.com/docview/2607798213?pq-origsite=primo&parentSessionId=Qy8kWub2J%2BYn0ettX8QFudLPP8V4a8fOnSVuHXfNC6A%3D
https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/gIQAN8CXZJ_blog.html
https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/gIQAN8CXZJ_blog.html
https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/gIQAN8CXZJ_blog.html
https://www.washingtonpost.com/blogs/ezra-klein/post/everything-you-need-to-know-about-the-fairness-doctrine-in-one-post/2011/08/23/gIQAN8CXZJ_blog.html


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Muslim Advocates. “Muslim Advocates Applauds New Bill to
Enact Reforms to Section 230,” February 5, 2021.
https://muslimadvocates.org/2021/02/muslim-advocates-ap
plauds-new-bill-adding-reforms-to-section-230/.

Ovide, Shira. “What’s Behind the Fight Over Section 230.” The
New York Times, March 25, 2021, sec. Technology.
https://www.nytimes.com/2021/03/25/technology/section-
230-explainer.html.

Oyez. “Twitter, Inc. v. Taamneh,” (2023)
https://www.oyez.org/cases/2022/21-1496.

“Paradoxes of Media Policy Analysis: Implications for Public
Interest Media Regulation - Document - Gale Academic
OneFile Select,” n.d.
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis
&id=GALE%7CA191854511&v=2.1&it=r&ugroup=outsi
de.

Rash, Wayne. “Lawmakers Introduce Bipartisan Reforms
Making Big Tech Liable As Supreme Court Considers
Section 230.” Forbes. Accessed March 27, 2023.
https://www.forbes.com/sites/waynerash/2023/02/28/sectio
n-230-reforms-introduced-into-us-senate-and-house-of-rep
resentatives/.

Regulation (EU) 2016/679 of the European Parliament and of
the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and
on the free movement of such data, and repealing
Directive 95/46/EC (General Data Protection Regulation)
(Text with EEA relevance), 119 OJ L § (2016).
http://data.europa.eu/eli/reg/2016/679/oj/eng.

Riley, Chris, and David Morar. “Legislative Efforts and Policy
Frameworks within the Section 230 Debate.” Brookings
(blog), September 21, 2021.
https://www.brookings.edu/techstream/legislative-efforts-a
nd-policy-frameworks-within-the-section-230-debate/.

Rodrigo, Chris Mills. “Facebook’s Zuckerberg Proposes

132

https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-adding-reforms-to-section-230/
https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-adding-reforms-to-section-230/
https://muslimadvocates.org/2021/02/muslim-advocates-applauds-new-bill-adding-reforms-to-section-230/
https://www.nytimes.com/2021/03/25/technology/section-230-explainer.html
https://www.nytimes.com/2021/03/25/technology/section-230-explainer.html
https://www.nytimes.com/2021/03/25/technology/section-230-explainer.html
https://www.oyez.org/cases/2022/21-1496
https://www.oyez.org/cases/2022/21-1496
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA191854511&v=2.1&it=r&ugroup=outside
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA191854511&v=2.1&it=r&ugroup=outside
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA191854511&v=2.1&it=r&ugroup=outside
https://go.gale.com/ps/i.do?p=EAIM&u=mlin_m_brandeis&id=GALE%7CA191854511&v=2.1&it=r&ugroup=outside
https://www.forbes.com/sites/waynerash/2023/02/28/section-230-reforms-introduced-into-us-senate-and-house-of-representatives/
https://www.forbes.com/sites/waynerash/2023/02/28/section-230-reforms-introduced-into-us-senate-and-house-of-representatives/
https://www.forbes.com/sites/waynerash/2023/02/28/section-230-reforms-introduced-into-us-senate-and-house-of-representatives/
https://www.forbes.com/sites/waynerash/2023/02/28/section-230-reforms-introduced-into-us-senate-and-house-of-representatives/
http://data.europa.eu/eli/reg/2016/679/oj/eng
http://data.europa.eu/eli/reg/2016/679/oj/eng
https://www.brookings.edu/techstream/legislative-efforts-and-policy-frameworks-within-the-section-230-debate/
https://www.brookings.edu/techstream/legislative-efforts-and-policy-frameworks-within-the-section-230-debate/


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Conditional Section 230 Reforms.” Text. The Hill (blog),
March 24, 2021.
https://thehill.com/policy/technology/544707-facebooks-z
uckerberg-proposes-conditional-section-230-reforms/.

Roeven, Sanne. “Exploring the History of Section 230 of the
Communications Decency Act of 1996 – Ballotpedia
News.” Accessed March 25, 2023.
https://news.ballotpedia.org/2021/06/08/exploring-the-hist
ory-of-section-230-of-the-communications-decency-act-of
-1996/.

Ronald Reagan. “Fairness Doctrine,”
https://www.reaganlibrary.gov/archives/topic-guide/fairnes
s-doctrine.

Rosentiel, Tom. “Is the Fairness Doctrine Fair Game?” Pew
Research Center (blog), July 19, 2007.
https://www.pewresearch.org/2007/07/19/is-the-fairness-d
octrine-fair-game/.

Ruane, Kathleen Ann. “Fairness Doctrine: History and
Constitutional Issues,”———. “How Broad A Shield? A
Brief Overview of Section 230 of the Communications
Decency Act.” Congressional Research Service, February
21, 2018.

Satariano, Adam. “Big Fines and Strict Rules Unveiled Against
‘Big Tech’ in Europe.” The New York Times, December 15,
2020, sec. Technology.
https://www.nytimes.com/2020/12/15/technology/big-tech
-regulation-europe.html.

“The Digital Markets Act: Ensuring Fair and Open Digital
Markets.” Accessed April 13, 2023.
https://commission.europa.eu/strategy-and-policy/prioritie
s-2019-2024/europe-fit-digital-age/digital-markets-act-ens
uring-fair-and-open-digital-markets_en.

“The Digital Services Act: Ensuring a Safe and Accountable
Online Environment.” Accessed April 13, 2023.
https://commission.europa.eu/strategy-and-policy/prioritie

133

https://thehill.com/policy/technology/544707-facebooks-zuckerberg-proposes-conditional-section-230-reforms/
https://thehill.com/policy/technology/544707-facebooks-zuckerberg-proposes-conditional-section-230-reforms/
https://thehill.com/policy/technology/544707-facebooks-zuckerberg-proposes-conditional-section-230-reforms/
https://news.ballotpedia.org/2021/06/08/exploring-the-history-of-section-230-of-the-communications-decency-act-of-1996/
https://news.ballotpedia.org/2021/06/08/exploring-the-history-of-section-230-of-the-communications-decency-act-of-1996/
https://news.ballotpedia.org/2021/06/08/exploring-the-history-of-section-230-of-the-communications-decency-act-of-1996/
https://news.ballotpedia.org/2021/06/08/exploring-the-history-of-section-230-of-the-communications-decency-act-of-1996/
https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine
https://www.reaganlibrary.gov/archives/topic-guide/fairness-doctrine
https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game/
https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game/
https://www.pewresearch.org/2007/07/19/is-the-fairness-doctrine-fair-game/
https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europe.html
https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europe.html
https://www.nytimes.com/2020/12/15/technology/big-tech-regulation-europe.html
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

s-2019-2024/europe-fit-digital-age/digital-services-act-ens
uring-safe-and-accountable-online-environment_en.

“The Digital Services Act Package | Shaping Europe’s Digital
Future,” February 9, 2023.
https://digital-strategy.ec.europa.eu/en/policies/digital-serv
ices-act-package.

“The Justice Department Unveils Proposed Section 230
Legislation,” September 23, 2020.
https://www.justice.gov/opa/pr/justice-department-unveils-
proposed-section-230-legislation.

Totenberg, Nina. “Supreme Court Showdown for Google,
Twitter and the Social Media World.” NPR, February 21,
2023, sec. Law.
https://www.npr.org/2023/02/21/1157683233/supreme-cou
rt-google-twitter-section-230.

Washington Post. “Perspective | The Fairness Doctrine Won’t
Solve Our Problems — but It Can Foster Needed Debate.”
February 4, 2021.
https://www.washingtonpost.com/outlook/2021/02/04/fair
ness-doctrine-wont-solve-our-problems-it-can-foster-neede
d-debate/.

West, Brian, and Matthew Varacallo. “Good Samaritan Laws.”
In StatPearls. Treasure Island (FL): StatPearls Publishing,
2023. http://www.ncbi.nlm.nih.gov/books/NBK542176/.

WNYC Studios. “How Did Talk Radio Get So Politically
Lop-Sided? | On the Media.” Accessed March 21, 2023.
https://www.wnycstudios.org/podcasts/otm/episodes/talk-r
adio-lopsided-on-the-media.

Cases Cited

Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y.
1991)

Gonzalez v. Google LLC, 598 U.S. __ (2023)

134

https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en
https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_en
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package
https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package
https://www.justice.gov/opa/pr/justice-department-unveils-proposed-section-230-legislation
https://www.justice.gov/opa/pr/justice-department-unveils-proposed-section-230-legislation
https://www.justice.gov/opa/pr/justice-department-unveils-proposed-section-230-legislation
https://www.npr.org/2023/02/21/1157683233/supreme-court-google-twitter-section-230
https://www.npr.org/2023/02/21/1157683233/supreme-court-google-twitter-section-230
https://www.npr.org/2023/02/21/1157683233/supreme-court-google-twitter-section-230
https://www.washingtonpost.com/outlook/2021/02/04/fairness-doctrine-wont-solve-our-problems-it-can-foster-needed-debate/
https://www.washingtonpost.com/outlook/2021/02/04/fairness-doctrine-wont-solve-our-problems-it-can-foster-needed-debate/
https://www.washingtonpost.com/outlook/2021/02/04/fairness-doctrine-wont-solve-our-problems-it-can-foster-needed-debate/
https://www.washingtonpost.com/outlook/2021/02/04/fairness-doctrine-wont-solve-our-problems-it-can-foster-needed-debate/
http://www.ncbi.nlm.nih.gov/books/NBK542176/
https://www.wnycstudios.org/podcasts/otm/episodes/talk-radio-lopsided-on-the-media
https://www.wnycstudios.org/podcasts/otm/episodes/talk-radio-lopsided-on-the-media
https://www.wnycstudios.org/podcasts/otm/episodes/talk-radio-lopsided-on-the-media


Brandeis University Law Journal Spring 2023, Volume 10, Issue 2

Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969)
Tinker v. Des Moines Independent Community School District,

393 U.S. 503 (1969)
Twitter, Inc. v. Taamneh, 598 U.S. ___ (2023)
Whitney v. California, 274 U.S. 357 (1927)

EU Codes Cited

The Digital Markets Act: Ensuring Fair and Open Digital
Markets

The Digital Services Act: Ensuring a Safe and Accountable
Online Environment Regulation (EU) 2016/679 of the
European Parliament and of the Council of 27 April
2016 on the protection of natural persons with regard to
the processing of personal data and on the free
movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation) (Text
with EEA relevance), 119 OJ L § (2016).
http://data.europa.eu/eli/reg/2016/679/oj/eng

US Codes Cited

"H.R.5596 - 117th Congress (2021-2022): Justice Against
Malicious Algorithms Act of 2021." Congress.gov, Library
of Congress, 18 October 2021,
https://www.congress.gov/bill/117th-congress/house-bill/5
596.

LII / Legal Information Institute. “47 U.S. Code § 230 -
Protection for Private Blocking and Screening of
Offensive Material.” Accessed March 25, 2023.
https://www.law.cornell.edu/uscode/text/47/230.

LII / Legal Information Institute. “Consumer Protection Laws.”
Accessed April 10, 2023.
https://www.law.cornell.edu/wex/consumer_protection_la
ws.

135

http://data.europa.eu/eli/reg/2016/679/oj/eng
http://data.europa.eu/eli/reg/2016/679/oj/eng
https://www.congress.gov/bill/117th-congress/house-bill/5596
https://www.congress.gov/bill/117th-congress/house-bill/5596
https://www.law.cornell.edu/uscode/text/47/230
https://www.law.cornell.edu/uscode/text/47/230
https://www.law.cornell.edu/wex/consumer_protection_laws
https://www.law.cornell.edu/wex/consumer_protection_laws
https://www.law.cornell.edu/wex/consumer_protection_laws

