Response to: William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349 (2015).
Constitutional
Response to: Jessica Bulman-Pozen & David E. Pozen, Uncivil Obedience, 115 Colum. L. Rev. 809 (2015)
Response to: Jon D. Michaels, An Enduring, Evolving Separation of Powers, 115 Colum. L. Rev. 515 (2015).
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 specÂtrum 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...
Balancing the harms and benefits of speech—what this Article calls “free speech consequentialism”—is pervasive and seemingly unavoidÂable. 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...
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 foreÂground a puzzling inconsistency in constitutional...
This Article sets forth the theory of an enduring, evolving separation of powers, one that checks and balances state power in whatever form that power happens to take. It shows how this constitutional commitment was first renewed and refashioned in the 1930s and 1940s, wherein the construction of a secondary regime of administrative checks and balances triangulated...
Over the past three decades, the Supreme Court has repeatedly insisted that due process requires that absent class members be given an opportunity to opt out of a class action seeking predominantly money damages. The Court’s asserted justification for linking opt-out rights and due process focuses on absent class members’ potential interest in seeking their own...