Introduction Partisan gerrymandering has a lengthy history, as political parties in power have repeatedly sought to construct electoral districts in ways that disfavor the minority party and ensure majority-party dominance. While more recently it appears that Republicans have reaped more of the benefits of partisan gerrymandering, over the past fifty years, each major political party, […]
No. 7
Introduction “[T]he majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. Today is not the first time the Court has wielded the First Amendment in such an aggressive way. And it threatens not to be the last. Speech is everywhere—a part of […]
Free speech cannot be progressive. At least it cannot be progressive if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern American free speech right. That is not to say that the right to free speech does not deserve protection. It might serve as an important side constraint on the pursuit of progressive goals and might even protect progressives...
The most recent call for judicial intervention into state partisan gerrymandering practices ran aground on the shoals of standing doctrine in Gill v. Whitford. The First Amendment stood at the center of this latest gerrymandering challenge. Democratic voters claimed that the legislative districting scheme infringed on their associational rights by denying their party an opportunity for...
The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review...
Over the past four decades, the political economy of the First Amendment has undergone a significant shift. If in the early twentieth century winners in First Amendment cases tended to be representatives of the marginalized and the disenfranchised, these days, they are much more likely to be corporations and other powerful actors. This Essay excavates the causes of that change and suggests how it might be remedied. It argues that the shift in...