Both emerging claims of constitutionally protected cognitive liberty and expanding state efforts to address alleged psychological harms associated with technology use necessitate deeper thinking about state interests that might be sufficient to justify regulation of constitutionally protected cognitive activity. Drawing from precedent recognizing state interests in other contexts, this Piece suggests a research agenda of five challenging questions...
Vol. 125
Platform manipulation is a growing phenomenon affecting billions of internet users globally. Malicious actors leverage the functions and features of online platforms to deceive users, secure financial gain, inflict material harms, and erode the public’s trust. Although social media companies benefit from a safe harbor for their content policies, no state or federal law clearly ascribes liability to platforms complicit in deception by their designs....
The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.
This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining...
In New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s adoption of the history and tradition test required analysis of historical gun and abortion regulations that produced two unacknowledged problems. First, history and tradition analysis revealed opposing historical traditions but implicitly required the Court to affirm a singular tradition. Second, because...
Among the most powerful barriers to relief under § 1983 is Monell v. Department of Social Services—the Supreme Court decision recognizing that municipalities can be liable for constitutional violations by their officers but setting an exceedingly high standard for such claims. This Essay suggests a litigation strategy that sidesteps several challenges posed by Monell: Plaintiffs should pursue Monell claims based on...
Most states have laws prohibiting corporations from owning healthcare practices or employing physicians, collectively forming the corporate practice of medicine doctrine (CPOM). CPOM laws were designed to ensure that licensed professionals, not corporate laymen, decide patient treatment.
Large corporations and private equity firms routinely circumvent CPOM laws by creating subsidiary companies that ostensibly “manage” healthcare practices....
Freedom of thought has long been revered as a fundamental right, yet its doctrinal contours have remained underdeveloped. Two recent Supreme Court decisions—National Institute of Family and Life Advocates v. Becerra (NIFLA) and 303 Creative LLC v. Elenis—suggest a nascent but expansive free thought jurisprudence, one that increasingly shields religious actors not just from government interference in belief but also compliance...
Taylor Swift’s songs inspire generations of fans to sing and dance about love and to “shake . . . off” heartbreak. Swift’s hard-earned “reputation” for being a savvy music mogul inspires other creative spirits to be “fearless” in their artistic endeavors. But unless these artists are songwriters and musicians, they should keep their “eyes open” when selling their works, as they may see “red” when they discover their tax...
In constitutional liberties cases, the Supreme Court has tried to reduce balancing, understood loosely to mean determining a right’s contours based on sweeping political-moral considerations, not just text and history. It fears that today’s balancing would displace a balance struck by the Founders. Balancing is indeed problematic—but this campaign to end it is...
Ever since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within...