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In the US, a first-past-the-post plurality electoral system means that a state’s Electoral College votes for President go to whichever candidate gets the plurality of votes in that state. Every four years on Election Day, states report in from across the country. The result is the “blue states” and “red states,” states that go to Republicans or Democrats in each presidential election cycle. Democrats have pushed for a national popular vote achieved through a compact among states to honor the national popular vote results although such an initiative remains unconstitutional given the US Constitution’s explicit directive to use the Electoral College to select the President. There is an alternative to a national popular vote that is constitutional and has already been in effect for years in Nebraska and Maine: district voting. Rather than a national popular vote, district voting offers an alternative way to effectuate popular will that could benefit both parties. Democrats widely promote the idea of a national popular vote, calling the Electoral College outdated. Since the 2004 presidential election, Democrats have won the popular vote in each round by a relatively narrow margin of one or two million votes, although the count of electoral votes by states means that Republican Donald Trump won the 2016 election. In the district voting system, electoral votes are assigned based on the “at large” results mirroring a state’s two US Senators and then by the plurality in each Congressional district in the state. As a result, Nebraska has one of its electoral votes that usually goes to Democrats, and Maine usually contributes a single electoral vote—the only one in New England—to the Republican candidate. The problem with the existing Electoral College system is that it makes the nation appear more split along partisan lines between states than it actually is. There are huge numbers of Democrats in Texas and California has some of the highest vote totals for Republicans of any state. District voting would force national party candidates to diversify their campaigning to current “safe” states, which would benefit many currently overlooked states like New Jersey regarded as a safe source of votes for Democrats but likely a low policy priority. In an ideal system, all the states might implement district voting. However, with fierce litigation battles over redistricting, it is unclear if federal and state courts are actually up to the task of managing district voting. Rather than a nationwide roll out, narrowly split states could benefit most from district voting. With its referendum procedures it is possible district voting could be introduced in California. “Purple” states like Georgia, Minnesota, and Virginia are potentially good candidates for district voting because it stands to benefit both parties across elections. If Democrats are remotely serious about a national popular vote, district voting could be the most viable way to introduce such a system. For Democrats, states that are close to teetering toward Republicans like Minnesota, Wisconsin, and New Mexico might be good candidates for district voting, in the same way that formerly “red” states like Georgia might be good candidates for Republican legislators to enact such changes.

Article IV, Section 4 of the US Constitution is known as the Republican Governance Clause, sometimes also called the Guarantee Clause. “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” What does this clause mean? It is generally understood to mean that each state must have a republican form of government, thus barring for instance state dictatorships or constitutional monarchies. But what is the actual scope of this part of the Constitution? Curiously, for such an important clause of the Constitution, the Republican Governance Clause only rarely comes up in court cases or law journal articles. The Supreme Court, in Luther v. Borden  in 1848, concluded that the clause is a nonjusticiable political question—the fancy way of saying it is something federal courts cannot decide. At the time, Rhode Island was the only state without a constitution of its own and had a dispute between two competing state governments. Subsequently, in 1912, the Supreme Court in Pacific States Telephone and Telegraph Co. v. Oregon  was asked to strike down state referendums as a violation of the Republican Governance Clause, but refused to do so on the same non-justiciability grounds. In 1946, in Colegrove v. Green , the Court held that state electoral district malapportionment isn’t justiciable either. Historians and judges alike have a unique opportunity to revisit the Republican Governance Clause’s meaning at the time of the Founding. Is the view that it is non-justiciable actually correct? What about situations like Governor Huey Long in 1930s Louisiana who was effectively a state dictator? What level of divergence by state governments is acceptable? One unsettled question is whether the Republican Governance Clause means that states must  have the same governmental structure as the federal government. That might mean no independent redistricting commissions, electors for state governor, and a geographic senate. At the time of the Founding, states had different legislative structures and state constitutions and most had a very limited franchise compared to today. Under this view of the Republican Governance Clause, something like Nebraska’s unicameral legislature might not be allowed. Because the Supreme Court has consistently found the clause non-justiciable, that suggests that Congress and the Executive Branch can craft policy to enforce the Republican Governance Clause. For Congressional Democrats, that seems like an open invitation to pass the John Lewis Voting Rights Act, although as written that would probably unconstitutionally coerce and “commandeer” state governments, as well as violate the Fifteenth Amendment’s guarantees of racial non-discrimination in voting. Conversely, though, a federal statute requiring compliance with national standards of republican governance might be viable. Such a statute could limit mass mail balloting or finally affirm the Fifteenth Amendment’s guarantees of racial non-discrimination. In light of major election contests in 2000, 2016, 2018, 2020, and likely again in 2024, American federal courts and legal scholars are overdue to consider the meaning of the Republican Governance Clause. Image Credit: Hunter Starett, Unsplash

After heated debate, the Democrat-controlled U.S. Senate has passed a sweeping online censorship bill that imperils the future of free speech on the internet.   The Kids Online Safety Act (KOSA) cleared the U.S. Senate on July 30, 2024, over the vocal opposition of conservative Senators Mike Lee (R, UT) and Rand Paul (R, KY). The bill faces an uncertain future in the Republican-controlled U.S. House, where it is sure to face renewed scrutiny over its threat to Americans’ First Amendment rights.   The bill passed the Senate by a disturbing 91-3 margin , with Lee, Paul and Senator Ron Wyden (D, OR) voting against it. Ohio Senator J.D. Vance, a free speech advocate who is currently the Republican vice presidential nominee, was unable to attend  the vote.   If enacted, KOSA would incentivize tech companies to escalate their censorship  of dissenting views, perverting the internet to fit the sensibilities of Washington censors.   KOSA Uses Subjective Language that Coerce Platforms to Censor More KOSA amends existing law to make tech companies liable if the content shared on their platforms causes children “psychological distress” or “anxiety.” It also penalizes platforms that permit “online bullying” of minors. These undefined, nebulous terms are so subjective that tech platforms only hope of complying may be to aggressively amp up their already extensive censorship operations.   KOSA Creates a Government Censorship Board KOSA creates a government censorship board, named the Kids Online Safety Council, to provide “recommendations” for social media companies. Under the bill’s text, the Safety Council’s membership must include “representatives of covered [Big Tech] platforms” and meet DEI-style  quotas.      KOSA Empowers a Top Censor of the Biden-Harris Administration KOSA instructs the surgeon general to work with the Federal Trade Commission to create studies on potential “remedies” to content that could cause psychological distress or anxiety. The current surgeon general, Vivek Murthy, is one of the Biden-Harris administration’s top censorship advocates, arguing in the case Murthy v. Missouri  that he had a right to direct tech companies to censor critics of the government.   KOSA Creates New Cash Flows for the Censorship-Industrial Complex KOSA requires tech companies to contract with third-party reporting agencies to document “systemic risks to harm to minors based on “industry best practices.” This likely means more lucrative contracts for incumbent, for-profit firms in the censorship-industrial complex like Ad Fontes Media , Moonshot  and NewsGuard .   KOSA Strongarms Big Tech into Banning Internet Anonymity KOSA imposes onerous new reporting requirements for tech platforms which can largely be avoided by requiring users to upload their ID or social security number. This information would then be mandated, by law, to be handed over to third-party auditors. Platforms more resistant to this form of censorship, like TruthSocial or Rumble, could face crippling costs to comply with this vague regulation. This could result in the annihilation of anonymous speech from the internet.   KOSA Allows Attorneys General to Use State Courts to Target Online Speech KOSA permits state attorneys general to sue tech firms if they feel an online platform could cause minors “anxiety.” Furthermore, the law allows these attorneys general to entirely bypass the Constitution’s federal court system, and instead have the cases adjudicated by elected state judges. This means a single biased judge in Manhattan, New York or Atlanta, Georgia could end up determining the censorship policy for the entire nation.   KOSA’s Design Makes It Exceedingly Difficult for Victims of Censorship to Get Justice in Court Since KOSA uses vague words to encourage big tech platforms to censor, it makes it exceptionally difficult for victims of censorship to challenge the potentially unconstitutional law in court. This is because by outsourcing the censorship to a third party (in this case, a tech platform), KOSA largely removes censorship victims’ ability to bring suit against the government directly. Instead, people injured by the act would have to bring their suit against Big Tech companies, which might be hesitant to admit they were following the orders of KOSA’s Online Safety Council.    KOSA Outsources Government Authority to a Private Trade Association.   KOSA increases tech platforms’ liability for content that could trigger a “mental health disorder.” Instead of defining this term, KOSA says its meaning must align with “the most current” version of the Diagnostic & Statistical Manual (DSM) of Mental Health Disorders. The DSM is written by the American Psychiatric Association (APA) , which not a government agency, but rather a private trade association which has a long history of far-left activism. The APA lobbies against statutes regulating  so-called “gender affirming care” of small children and instructs practitioners to incorporate critical-race theory  into their treatment.   Paul, who recently released his own bill  to limit government censorship, argued vociferously against KOSA. He warned : “this bill opens the door to nearly limitless content moderation, as people can and will argue that almost any form of content could contribute to some form of mental health disorder.”     While KOSA passed easily in the Senate, which is run by Democrat Chuck Schumer (NY), it faces more opposition in the Republican-controlled House. House Speaker Mike Johnson (R, LA) previously argued, “Big Tech has an overt bias for the Left. Their censorship is an assault on free speech.”  Image Credit: Mike Haupt, Unsplash

In current US Constitutional doctrine, a standard view holds that there are exceptions to the First Amendment. For those that don’t think about Constitutional doctrines daily, the First Amendment is part of the Bill of Rights passed in 1791 soon after the ratification of the US Constitution. It guarantees freedom of speech, petition, assembly, and religion. In current jurisprudence, commonly recognized exceptions include obscenity, bans on child pornography, copyright, trademark, patent, trade secrets, fighting words, and true threats. But what if exceptions is the wrong way to look at it? There are different ways to look at the Constitution. An originalist viewpoint combines a careful look at the text with a purposive look at the Constitution at the time it was written. Originalists often draw on historical sources from around the time of the Founding in an effort to understand what words meant at the time—dubbed the text, history, and tradition analysis. Other judges are legal realists, who may favor deciding cases based on a hunch about the state of the world. Still others believe in common law jurisprudence, making decisions—left, right, or center—without much reference to the Constitution itself. Judges love to reserve power to themselves. Declaring that there are exceptions to the Constitution puts judges “in the driver’s seat” to make ad hoc determinations of law. This commonly comes up in circumstances like the Dormant Commerce Clause—the idea that judges should decide whether or not a state law unlawfully burdens interstate commerce even when Congress has not passed a law in that area. Saying there are exceptions to the First Amendment misses the point. Most of the “exceptions” aren’t really exceptions at all. The same doctrines could be restated to say that simply because speech is involved in illegal conduct, it does not immunize that illegal conduct. It is unlawful to make threats and assault—putting another in fear of imminent bodily harm—is a crime. Likewise, theft is a crime, even if accomplished through false statements constituting fraud. Some exceptions are a bit harder to parse. Obscenity superficially seems like an actual exception to the First Amendment. Since the 1960s, when courts were placing books on trial (turning ideas of standing and who can be named as a defendant on its head), the Supreme Court has restrained obscenity doctrine quite a bit. Social conservatives and “hate speech” banners would love to strengthen something like obscenity. Here, too, obscenity may be closer to the speech vs. conduct distinction than some imagine. Engaging in lewd acts is arguably conduct, not speech. Likewise, it may dovetail with common law doctrines of nuisance—like blasting music at ultra-high decibels, disturbing neighbors. The problem with exceptions is that by declaring there are some exceptions, it implies there may be more. That invites judicial activism. This hunch applies to other areas often seen as “reasonable” restrictions under the First Amendment like lobbying and campaign finance laws. These laws cannot stand, except to the extent they are used to prevent embezzlement and direct quid pro quo corruption. Claiming there are exceptions to the First Amendment is a hazardous way of interpreting an essential Constitutional doctrine rooted in natural law rights, that could be stated much more succinctly.

In law school, American lawyers are often exposed to canons of statutory interpretation. Yawn. Well, no actually. This seemingly arcane area of law is actually incredibly important for some of the biggest Constitutional and statutory decisions coming out of federal and state courts. Canons are ways of interpreting the meaning of a statute that come from general hunches about the way that the English language works, the intentions of legislators, the US Constitution, and past case law. Not all canons apply in all cases, and judges may disagree about which canon to apply in a particular circumstance. Although there is no official list of canons, textbooks and articles have compiled some of the most commonly used canons. Because canons are often guidelines for interpretation that come from outside the Constitution, it is a reasonable question to ask about their validity. The Rule of Lenity might be the strongest canon of all, arguably rooted in the Eighth Amendment’s prohibition on cruel and unusual punishment. Under this reasoning, it is wrong to construe the uncertain meaning of a statute against a criminal defendant, who would be punished without any way to determine the meaning of the law in advance. Federalism canons (several related ones) also have a strong backing in the Constitution, because the Constitution imagines a tripartite federal separation of powers and a big role for the states in elections and as free standing sovereign governments, mentioned in the Tenth Amendment. Noscitur a sociis from Latin, is also called the associated words canon. Closely associated words bear the same meanings. Similarly, ejusdem generis holds that words in a list belong to the same general class of things. Several canons deal with the “whole act” reading a statute or Constitutional provision for its overall meaning, including the meaning conveyed in headings. This often includes avoiding surplusage, reasoning that if a word is included or omitted that is done on purpose. These interpretive canons probably make sense given the ways that people convey meaning in English (or any language). Ironically, even if the Constitution did contain more specific rules on how it is to be read and interpreted, even those rules would probably require something like canons to interpret. Canons, or very similar concepts, are common elsewhere in Global North. Languages like German and French with extensive, highly specific vocabularies may actually be more specific at baseline than English. After all, English is an unusual creole with lots of French vocab and borrowed words atop Germanic grammar, that is always changing and not centrally regulated. As a result, it’s often up to the crowd to determine what words mean. Hang onto your old dictionaries because major dictionary companies now frequently change definitions to serve short run social priorities, essentially “grassroots lobbying” to change the meaning of words from their past meanings. Should judges use legislative history? Superficially, this seems like a good idea. Why not look to the records of a legislature to figure out what legislators wanted a law to mean. This stance of deferring to legislative intent is often described as “judicial minimalism,” a once more common judicial philosophy that faded from prominence with the death of American judges like Supreme Court Justice Byron White and Justice Louis Brandeis. Although legislative history is widely used, it is disfavored in the US, UK, and even in France. The late US Supreme Court Justice Antonin Scalia despised legislative history, seeing it as a way for judges to make partisan political decisions based on their own desires rather than the actual meaning of the law. Scalia cautioned that legislative history is often crafted in advance by lobbyists who give legislators prepared statements to read into the record, stacking the deck for a different meaning for a law than the actual text of the statute. Because France revived the old Roman Justinian Code as the Napoleonic Code of civil law, France is a bellwether for how civil law countries interpret the law. Except in the area of torts, almost everything in French courts is statutory, meaning judges have to do a lot of statutory interpretation. Until the 1830s, the French legislature would often weigh in with interpretive decisions, although that eventually stopped to prevent partisan decisionmaking in the courts. As in the US and UK, legislative history fell out of favor for decades, although it had resurgence in the 1970s after French legislators gutted and replaced large portions of the Napoleonic Code. In France, judges are expected to apply a text as written unless the result would be absurd. If there is uncertainty, judges may look to the will of the legislature, and fall back on the “teleological interpretation method” if there is too little legislative history. Taken together, widely accepted canons that continue to recur in the US courts are probably mostly sensible. However, attorneys, judges, and the general public should always pause to ask if the value of the canons holds true.

The US Constitution emerged in the late 1780s as a document based on natural rights principles honed during the Enlightenment. In its brief text, it commits free-standing inalienable rights to paper. At the time it was written, it appears some inalienable rights were seen as so obvious they did not need to be written down. One example is the right to raise one’s own children. Unfortunately, the US Constitution does not currently contain a clear statement of the right to parent, meaning that a “right to parent” amendment might be one of the most pressing—and easily agreed upon—additions to the Constitution in the future. Since the early 20th century, courts in the US have largely presumed that a right to parent exists even though there is no textual backing for it in the Constitution. Meyer v. Nebraska, a 1923 Supreme Court case held that a state law prohibiting education in a minority language violated the Due Process Clause of the Fourteenth Amendment. In dicta, the case spoke of a parent’s right to parent his or her own children. Pierce v. Society of Sisters two years later invalidated an Oregon law that required all children to attend public school. However, since the Supreme Court’s splintered decision in 2000 in Troxel v. Granville parental rights are in a state of uncertainty. Justice Antonin Scalia dissented in Granville, noting the conflict between his own view of inalienable rights and the Constitution’s plain text: In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming anyone of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people…I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right. Across the political spectrum, some form of strong parental rights are probably an area of general agreement. Parental rights can never be absolute, of course. Parents cannot neglect or abuse their children. But nor should the government be able to take away children from their homes on a whim. Some inalienable rights seem so obvious they are never written down. That is a mistake, leaving open the possibility that the government could take over parenting of children in any circumstance and dispossess parents at any time.

On January 1, 2024, American corporate executives, charity directors, and small business owners woke up to new rules from FinCEN, the federal Financial Crimes Enforcement Network. FinCEN’s new rule requires all but sole proprietors to report the “beneficial owner” of every corporation in the US, implementing the Corporate Transparency Act of 2021. In 1970, American dissident Abbie Hoffman famously published his provocatively titled book Steal This Book. By compiling beneficial ownership information, FinCEN is saying essentially the same thing. The Corporate Transparency Act contains some thoughtful policy elements, but is typical of the kind of dangerous “bipartisan” legislation passed by Congress. Bipartisan often means bought off, with the kind of legislative consensus that is dangerous to the American public. The administrative rule adopted by FinCEN suffers from many of the characteristic problems of other administrative rules: it is unclear exactly how corporations are supposed to indicate who are beneficial owners. Given that the federal government already collects much of this information through information sharing agreements with states or through tax filing, the beneficial ownership database is functionally redundant, little more than a fishing operation to search for information to target businesses later. Worse still, the FinCEN database is to be shared with “state, local, and tribal” law enforcement agencies. The federal government faces major problems safeguarding its own data and smaller law enforcement agencies likely face even worse circumstances. There is a strong possibility that the FinCEN database will be intentionally, or accidentally on-purpose leaked to dox political opponents. If this seems far-fetched consider California’s recent leaks of the names and addresses of 200,000 gun owners in the state, or the fact that California lost the Americans for Prosperity v. Bonta 2021 Supreme Court case, because California was demanding all charities file Schedule B donor data, and then accidentally leaking that information publicly so that online mobs could target conservative organizations. Disfavored publishers, gun companies, body armor companies, and other businesses are among those that will likely need to be most concerned about FinCEN’s rules. Industry organizations and their members likely have standing under current Supreme Court case law to bring as applied or overbreadth challenges to the new FinCEN rules, and will likely achieve standing again when a change in beneficial ownership—whatever that really means—prompts subsequent filings. Image Credit Kevin Ku, Unsplash

The Scientific Revolution, the Industrial Revolution, the Information Age. Historians love to periodize history around changing ideas and technology. If we want to periodize, there are arguably many different “revolutions” and “ages” going on at any one time. For instance, right this very moment could be described as the “cloud computing era,” the “large language model era,” the “electric and hybrid vehicle age,” or any of a number of other descriptors against the backdrop of other time frames like the “post-Cold War world” or “Third Industrial Revolution.” Here at Global North Institute, we’re glad to be a (very small) part of the think tank revolution. Starting in the 1960s and ‘70s, the US and UK pioneered independent research institutes that act as a sort of mid-point between universities and private research and development. Worldwide, think tanks have prospered. Early movers like the Hudson Institute, the Heritage Foundation, Brookings Foundation, or the Cato Institute offer an alternative to universities, newspapers, and governments to develop new research and ideas. Since the 1980s, think tanks have grown more common in most countries, with prominent examples in countries as diverse as Brazil, Germany, Turkey, and Vietnam. The think tank revolution may still be in its early phase. The very high cost of higher education, combined with falling enrollment in many Global North countries means that many universities may face increased financial stress in the decades to come. Think tanks—although subject to their own inefficiencies—might be a more efficient way of conducting many forms of research compared with universities. For raw transmission of information, universities still have an advantage, along with maintaining the high fixed costs of facilities like labs. Nevertheless, the rise of massive open online courses (MOOCs), widespread distance learning, and the long-standing examples of private scientific research means that the future may see an increasingly blurring of distinctions between universities and think tanks. Universities run a significant risk of group think, leading to famous remarks about scientific revolutions depending more on the retirement of professors than new discoveries. To date, little research has considered whether universities or think tanks are more “effective” at promoting intellectual progress. Certainly, think tanks provide vital alternatives to the ideological group think in universities. US think tanks like the Heritage Foundation and Cato Institute offer valuable alternative intellectual environments for academics who might be locked out of the ivory tower on ideological grounds. Unfortunately, heightened ideological rigidity in many fields means that the need for alternative, think tank style organizations is more important than ever. The American Academy of Obstetrics and Gynecology, which claims to speak on behalf of all women in the US aggressively promotes abortion, a decidedly non-neutral stance for a professional organization creating good grounds for an alternative organization. Even fields like urban planning now appear to need alternatives, to raise seasoned debate about demolishing highways and cramming narrow city streets with wide bike lanes. Ultimately, the think tank model might be more efficient for many areas of research. More think tanks and research institutes in the sciences and technology, to supplement existing research institutes might foster the development of new ideas in biology, chemistry, or physics. Perhaps more think tanks should come up with alternative designs for cars, rather than the designs coming out of big auto makers to generate revenue for shareholders. Even fields like literary and language studies might benefit from the think tank model. Programs like the Iowa Writers Program or the Claremont Institute’s Review of Books are arguably a step in the right direction. Rather than resort to the “gen ed rent seeking,” creating unneeded course requirements to stay relevant (as our colleagues at Cato humorously observed in an episode of the Cato Daily Podcast), language experts could form new think tanks to offer remote language courses from anywhere, rather than maintain precarious Portuguese or German departments. So long as existing non-profit laws remain—and ideally become more streamlined—the future looks bright for think tanks. Image Credit Scott Graham, Unsplash

The right to repair: the phrase conjures images of software engineers maintaining decades old mainframes, consumers fixing their gadgets at home, or small mechanics shops keeping cars on the road. [1] Mass manufacturing of vehicles, machines, and consumer goods—and the more recent mass production of electronics and software—has created incredible opportunities for consumers and businesses alike. At the same time, the rise of “throw away” electronics and consumers goods has heightened concerns about non-reparability and planned obsolescence. Enhancements in metal alloys and manufacturing techniques mean that car have the potential to last longer than ever before. In fact, the current cars in the US are already 15 years old on average. Automakers have driven up the cost of repairs, forcing owners to go to dealerships and a select group of authorized repair shops. An average American household disposes of 175 pounds of electronics per year.[2] Discarded electronics in the form of computers, phones, televisions, batteries, game consoles, DVD players, and other appliances contain heavy metals and rare earth elements. Improperly disposed of this material goes to waste in landfills and has the potential to leach into the environment. E-waste is often shipped overseas to Africa, Indonesia, or China for dangerous and polluting resource recovery. Lack of repairability strips individuals and businesses of the full “bundle of sticks” of property rights and leads to massive inefficiencies and waste. With affordable repairs, many owners could probably keep their vehicles on the road for decades or reduce the steep costs of pollution associated with e-waste. Repairability also creates jobs. In America’s low-cost gateway cities and along rural state highways, one can still find businesses offering electronic repairs, re-upholstering for car seats and home furniture, or refurbishing for engines and machinery. But these businesses and the enterprise they support are increasingly rare. Massachusetts became the first—and so far, only--US state to pass a right to repair law in 2012, dubbed an Act Protecting Motor Vehicle Owners and Small Businesses in Repairing Motor Vehicles.[3] Although focused exclusively on auto repair, the law required automakers to sell to repair shops or car owners the same diagnostic and repair information made available to dealerships. For now, Massachusetts is an outlier. Right to repair bills covering areas like electronics, farm equipment, and automobiles have been introduced in 19 states but so far none have passed.[4] Large corporations are quick to lobby against right to repair legislation. In Nebraska, Apple, AT&T, and John Deere all worked to stop a right to repair law.[5] Today, software is in almost every kind of product imaginable. Cars, computers, and phones all depend on software. In 2016, the Copyright Office issued an analysis of potential copyright issues in software-enabled products.[6] Although it acknowledged the potential for problems with contractual and licensing agreements, the Copyright Office concluded that under existing law, there were few problems with tinkering with products and software after-market. Copyright is not the only intellectual property right to consider in the context of right to repair. Patent law is also a consideration. Producers cannot claim patent infringement for repair of devices because any restriction on use comes from contract law after the first sale.[7] There is another less obvious body of law the supports right to repair. Under federal and state antitrust laws, courts may block tying behavior where a company uses its power in one market to monopolize a second “tied product market.”[8] Courts weigh tying under a per se illegality approach or with the Rule of Reason.[9] In the automotive industry, tying suits have come up on many occasions.[10] Tying claims also come up in relation to electronics. For instance, in Collins Inkjet, the Sixth Circuit upheld a preliminary injunction for a manufacturer that demonstrated that its competitor had sufficient market power to sustain a tying arrangement.[11] Right to repair legislation at the federal or state level would be a big improvement for American property rights. Emily Brown, writing as a law student at the University of Illinois, observed that right to repair might not be a silver bullet for waste reduction and planned obsolescence: Although the resources for extending product lives would be made available, consumers must take initiative to repair their devices rather than falling prey to old habits of tossing out electronics to make room for a newer model. Right to repair does not mandate repair of used devices, nor does it prevent consumers from discarding usable devices when they are replaced with a newer model. Planned obsolescence of consumer technology may be halted by right to repair, but producers can still use irremovable batteries and prevent older devices from updating to new software--as long as they provide the required repair manuals and parts to consumers and third parties.[12] The right to repair is an essential element of ownership. State and federal right to repair laws are sure to face headway from corporate lobbyists in the years to come, but as concerns about repairability grow, we may see increased legislation to safeguard the rights of owners. References [1] Nicholas A. Mirr, Defending the Right to Repair: An Argument for Federal Legislation Guaranteeing the Right to Repair, 105 Iowa L. Rev. 2393, (2020) (hereinafter Mirr-Right to Repair). [2] Emily G. Brown, Time to Pull the Plug? Empowering Consumers to Make End of Life Decisions for Electronic Devices Through Eco-Labels and Right to Repair, 2020 U. Ill. J.L. Tech. & Pol'y 227, 228 (2020) (Brown-Right to Repair). [3] Mirr-Right to Repair, at 2399 (citing ch. 241, § (2)(a), 2012 Mass. Acts (2012)). [4] Mirr-Right to Repair, at 2402. [5] Mirr-Right to Repair, at 2403-04. [6] Mirr-Right to Repair, at 2400. [7] Brown-Right to Repair, at 245 (citing Surfco Haw. v. Fin Control Sys. Pty. Ltd., 264 F.3d 1062, 1066 (Fed. Cir. 2001). [8] Christopher R. Leslie, The Commerce Requirement in Tying Law, 100 Iowa L. Rev. 2135, 2136 (2015). [9] Id. [10] Sports Racing Services, Inc. v. Sports Car Club of America, 131 F.3d 874 (10th Cir. 1997) (holding distributorship had standing to bring monopolization claim and that the direct purchaser rule did not bar members’ illegal tying claim); Town Sound and Custom Tops, Inc. v. Chrysler Motor Corp., 959 F.2d 468 (3d Cir. 1992); Grappone Inc. v. Subaru of New England, Inc., 858 F.2d 792 (1st Cir. 1988). [11] Collins Inkjet Corp. v. Eastman Kodak Co., 781 F.3d 264 (8th Cir. 2015). [12] Brown-Right to Repair, at 246.

Some federal agencies are less famous than others. The Delta Regional Commission, founded in 2000 as a federal-state partnership to improve economic conditions in the impoverished Mississippi Delta region is downright obscure. Despite its lack of fanfare, the DRA receives $30 million in federal funding annually to spend in counties throughout Mississippi, Arkansas, Louisiana, Alabama, Tennessee and southern Illinois. So how exactly is all of that money being spent? Global North Institute contacted DRA’s FOIA officer, in this case a private law firm in Mississippi, in connection with DRA Project IL-54287 SIC-Advanced Virtual Reality Nursing granted $59,337 to Southeastern Illinois College for the purpose of buying virtual reality simulators for nursing students in Harrisburg, Illinois. In principal, targeted economic development funding can be a way of improving economic conditions. Looking at the grant program, though, suggests that because of its very broad mission and relative obscurity DRA funds are at risk of going to waste. The grant stretched out across two years with monthly and quarterly updates, totaling up to 200 pages of administrative reporting. By stretching out purchasing over such a long period of time, students were presumably not able to begin learning promptly. Simultaneously, technology and licenses became increasingly outdated from the tech described in the original proposal. DRA board members, who are drawn from states covered by DRA vote on proposals like the VR grant. One document in the release lists other DRA projects slated for funding around August, 2020. The list includes CNA (certified nursing assistant) training, “Industrial Park Life Station Replacement,” and several water main and road improvement projects. These funding items suggest that DRA lacks a clear mission for its funding and ends up being used as a source of miscellaneous grants in the region. A DRA staff member reviewing the VR grant application wrote “Regional impact: project will impact all five counties within the college district that are part of the DRA.” In the record, DRA staff members disagreed about whether the project would support “retaining” enough jobs within the meaning of DRA criteria. Ultimately, the decision to fund the proposal amounted to a shrug “I agree with Kemp’s assessment of the [lack of a significant enough] Tier 1 impact ranking but project seems to be a good avenue to train workers. It is also a smaller ask,” wrote one DRA staff member.

Unless you live on or near an Indian reservation, chances are you rarely think about the Bureau of Indian Affairs. Housed under the Department of the Interior, it finances infrastructure improvements and public services for members of federally recognized Indian tribes. For decades, Indian reservations have lagged the rest of the US for computer (and phone) network access. In recent years, the BIA has begun working to rectify these problem. A Global North Institute FOIA request to the Bureau of Indian Affairs for contract GS00Q17NSD3009 yielded interesting results about the state of telecom on Indian reservations in the US. BIA responded by providing over 400 pages of documentation related to a contract with Verizon to provide network services for reservations. The total award came over $147 million. A large dataset detailed fiber versus TDM copper internet connections and megabit per second performance rates.  Some Indian schools like Aneth Community School in Montezuma Creek, Utah actually rely on microwave wireless connections. Some schools had no internet connections at the time the dataset was compiled, like Lower Bruie Elementary School in South Dakota, although it was listed as having a 100 Mbps connection on-order. In its dataset, the agency appears to show an output of traffic data coming from different Indian schools over networks it supports. A large spreadsheet titled “EIS traffic model” shows virtual private access data and target speeds originating from each school, although the termination point for the connections is not included in the dataset. Although the contract-related dataset skews very technical, it gives a useful sense of the state of computer network access for Indian schools nationwide. Virtually all network devices and licenses purchased under the contract originated with networking technology giant, Cisco, including routers, edge peering border gateway protocol technology, and very mundane purchases like AC power cables.

Originally published May, 2023 Global North Institute wishes to extend its condolences to the people of Serbia for the two tragic spree killings that your nation experienced in early May, 2023. After tragedies like these, there is a temptation to take immediate legislative action to prevent recurrences of violence of the future. Our organization specializes in comparative public policy and affirming a common model of human rights across Europe, the United States, and Canada. Civilian firearms ownership for self-defense, national security, hunting, and agriculture is a critically important underpinning to effective human rights and Serbia is a leader within Europe for its widespread lawful firearms ownership. Serbia is one of several countries in Europe along with Finland, Czech Republic, Switzerland, and others that has routinely affirmed the value of civilian firearms ownership. An armed citizenry is the ultimate affirmation of government trust in its citizens and a vital investment in national security, individual self-defense, and valuable activities like hunting, historical collecting, and small businesses. Serbia has a world-leading defense industry serving both a domestic and international market. Moving to dramatically restrict civilian firearms ownership in Serbia would punish the very same law abiding citizens that stand ready to identify potential violent offenders and prevent mass killings. Worldwide, our research indicates that there is little connection between rates of firearms ownership and violence. Many countries with high rates of firearms ownership, such as Finland, witness few offenses committed with firearms despite the prevalence of firearms, whereas countries with draconian laws against civilian firearms ownership—like Brazil—often witness some of the worst violent crimes. Violence and guns are distinct from one another. Lawful firearms owners play a vital role in maintaining Serbia’s high trust national culture. Unfortunately, internet and mass media have allowed new social contagions to spread between countries. Curtailing firearms ownership does nothing to halt this social contagion of spree killing. Even where firearms are restricted, spree killers inspired by social media and mass media now take action by different means with home made bombs, vehicle rammings, or mass stabbings. Based upon our research, our organization anticipates that the proposed measures in Serbia—banning new gun licenses, shutting down broadcasters, and allowing police to enter homes without a search warrant—will merely harm the human rights of Serbian citizens and not offer adequate safeguards against future tragedies. As Serbian leaders navigate the painful aftermath of these twin tragedies, we hope that they will carefully consider the future of human rights in Serbia and affirm the rights of existing and future firearms owners in your country. To date, Serbia stands as a model for Europe and the world of an effective lawful firearms ownership regime. Image Credit: Ivan Aleksic, Unsplash