Any progressive agenda for change will require robust exercise of speech and associational rights that law currently restricts for labor unions. Although the Supreme Court’s conservative First Amendment judicial activism has raised doubts about whether constitutional protection for free speech can serve progressive ends, this Essay identifies a silver lining to the deregulatory use of the First Amendment. The Roberts Court’s extension of heightened...
Issue Archives
The vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.
The twentieth century featured a dyadic or dualist model of speech regulation with two basic kinds of players: territorial governments on the one hand, and speakers on the other. The twenty-first-century model is pluralist, with multiple players. It is easiest to think of it as a triangle. On one corner are nation-states...
Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court has created a “new Lochner.” This introduction to the Columbia Law Review’s...
Increased use of the cloud and its international scope raise significant challenges to traditional legal authorities that permit access to data stored outside the United States. The resulting stakes are high. This area of law affects a wide range of important matters concerning law enforcement, national security, and civil litigation.
Up until now, however, policymakers in this area have failed to fully appreciate the technological distinctions...
Federal campaign finance law prohibits foreign nationals from making contributions or expenditures of “money or other thing of value” in connection with American elections and prohibits anyone from soliciting such a contribution or expenditure. The revelation that officials from Donald Trump’s 2016 presidential campaign met with Russian nationals after being told they would receive “information that would incriminate” Hillary Clinton,...
In the 2017 case Pena-Rodriguez v. Colorado, the Supreme Court held that the jury no-impeachment rule must yield to a criminal defendant’s Sixth Amendment right to an impartial jury when a court is faced with clear evidence that racial animus played a significant role in the jury’s decision to convict. Despite the Supreme Court notably cabining its decision to instances of racial bias alone, commentators have questioned whether...
The #MeToo movement has shaken corporate America in recent months, leading to the departures of several high-profile executives as well as sharp stock price declines at a number of firms. Investors have taken notice and taken action: Shareholders at more than a half dozen publicly traded companies have filed lawsuits since the start of 2017 alleging that corporate fiduciaries breached state law duties or violated federal securities laws in connection...
Since its inception more than four decades ago, the Committee on Foreign Investment in the United States (CFIUS) has transformed from a relatively powerless monitoring body to a major regulatory hurdle for cross-border deals. This shift has been accompanied by increasing concerns from scholars and transacting parties regarding CFIUS’s lack of accountability and transparency. Yet, CFIUS’s scope has only continued to widen, as evidenced by...
One of the most perplexing problems in private law is when and how to compensate victims for emotional harm. This Essay proposes a novel way to accomplish this remedial goal—a restoration measure of damages. It solves the two fundamental problems of compensation for emotional harm—measurement and verification. Instead of measuring the emotional harm and awarding the aggrieved party money damages, this Essay proposes that defendants pay...
The harmless error doctrine is beset with problems, both theoretical and practical. In Harmless Error and Substantial Rights, recently published in the Harvard Law Review, Professor Daniel Epps proposes a reconceptualization of constitutional criminal procedure rights that is designed to address these problems. Epps argues that those constitutional criminal procedure rights that are capable of being violated by prosecutors...