In Reed v. Town of Gilbert the Supreme Court rearticulated the standard for when regulation of speech is content based. This determination has already had a large impact on cases involving panhandling regulations and is likely to result in the invalidation of the majority of this nation’s panhandling laws.
This Note will begin with a discussion of First Amendment doctrine and how panhandling is protected speech. This Note will...
This Article examines constitutional theory and doctrine as applied to emerging government regulation of video image capture across a spectrum of regulatory regimes. It proposes a framework that promotes free speech to the fullest extent without presenting unnecessary intrusions into legitimate property or privacy interests. The Article first argues that video recording is a form of expression or at the very least, is conduct that serves as a...
The Supreme Court’s 2014 decision in Hobby Lobby v. Burwell sent shockwaves through the legal community. While many praised its broad interpretation of the Religious Freedom Restoration Act (RFRA) as a milestone in protecting religious liberty, others expressed concern that it would essentially turn RFRA and similar legislation on the state level into a “license to discriminate” against LGBT individuals in areas such as...
This Essay develops an approach to interpreting computer trespass laws, such as the Computer Fraud and Abuse Act, that ban unauthorized access to a computer. In the last decade, courts have divided sharply on what makes access unauthorized. Some courts have interpreted computer trespass laws broadly to prohibit trivial wrongs such as violating terms of use to a website. Other courts have limited the laws to harmful examples of hacking into a computer....
Antitrust courts often confront “mixed” conduct that has two contrasting effects, one harmful and the other beneficial. For example, a nationwide agreement not to pay college football players harms the players while benefiting fans of amateur sports. An important tool for analyzing mixed conduct is to compare the action to a hypothesized alternative and to ask whether the alternative action is “less restrictive” and hence less harmful....
In the aftermath of the global financial crisis, Congress significantly broadened the reach of various regulatory entities through the Dodd-Frank Act. One particular power, found in section 113 of the Act, gives the newly formed Financial Stability Oversight Council (FSOC) the authority to designate nonbank financial institutions (NBFIs) as systemically important financial institutions...
Balancing the harms and benefits of speech—what this Article calls “free speech consequentialism”—is pervasive and seemingly unavoidable. Under current doctrine, courts determine if speech can be regulated using various forms of free speech consequentialism, such as weighing whether a particular kind of speech causes harms that outweigh its benefits, or asking whether the government has especially strong reasons for regulating particular...
Insufficient liquidity can trigger fire sales and wreak havoc on a financial system. To address these challenges, the Federal Reserve (the Fed) and other central banks have long had the authority to provide financial institutions liquidity when market-based sources run dry. Yet, liquidity injections sometimes fail to quell market dysfunction. When liquidity shortages persist, they are often symptoms of deeper problems plaguing the financial system....
Federal extraterritorial prosecutions of terrorists and arms dealers and even narcotics traffickers have become an integral part of modern American criminal justice. But extraterritorial prosecutions raise foundational legal questions—about the fairness of forcing foreign defendants to stand trial in our courts and about the outer boundaries of American power. And extraterritorial prosecutions foreground a puzzling inconsistency in constitutional...
This Note examines the impact of Stern v. Marshall—the Supreme Court’s recent decision on the authority of bankruptcy judges—on United States magistrate judges, with a particular focus on two exercises of magistrate judge authority that have been called into question by circuit courts post-Stern. The Note argues that institutional differences between magistrate judges and bankruptcy judges should lead circuit courts to be...