Law Commons^™

In Fulton Decision, Scotus Solidifies Expansion Of Religious Exercise Rights, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

On June 17, 2021, the Supreme Court solidified a dramatic shift in its reading of the constitutional protections for religious liberty. The Court ruled that religious organizations that contract with local governments to provide foster care services should be exempted from compliance with city non-discrimination requirements if the city permits any discretionary exemptions from those laws.

Constitutional Law And The Presidential Nomination Process, Richard Briffault

Faculty Scholarship

The Constitution says nothing about the presidential nominating process and has had little direct role in the evolution of that process from congressional caucuses to party national conventions to our current primary-dominated system of selecting convention delegates. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes.

The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government in writing the rules for and administering the …

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy

Faculty Scholarship

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 Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment …

The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler

Faculty Scholarship

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties …

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler

Faculty Scholarship

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …

Hate Speech And The Demos, Jamal Greene

Faculty Scholarship

It is sometimes said that the statist and aristocratic traditions of Europe render its political institutions less democratic than those of the United States. Richard Posner writes of “the less democratic cast of European politics, as a result of which elite opinion is more likely to override public opinion than it is in the United States.” If that is true, then there are obvious ways in which it figures into debates over the wisdom of hate-speech regulation. The standard European argument in favor of such regulation may easily be characterized as antidemocratic: Restrictions on hate speech protect unpopular minority groups …

Machine Speech, Tim Wu

Faculty Scholarship

Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that mimic human expression. When can such communications, called here “algorithmic outputs,” claim First Amendment protection?

Unconstitutional Conditions: The Irrelevance Of Consent, Philip A. Hamburger

Faculty Scholarship

Unconstitutional conditions are a conundrum. On the one hand, if government can spend, why can't it place whatever conditions it wants on its spending? On the other hand, if it can place any conditions on spending, won't it be able to impose restrictions that evade much of the Constitution, including most constitutional rights? This enigma is notoriously complex, and unconstitutional conditions therefore are considered a sort of Gordian knot.

The standard solution is to slice through the knot with consent to conclude that consent excuses otherwise unconstitutional restrictions. This solution, however, is problematic, for it concedes that the government can …

Davis V. Fec: The Roberts Court's Continuing Attack On Campaign Finance Reform, Richard Briffault

Faculty Scholarship

In Davis v. FEC, decided on the last day of the October 2007 Term, a closely divided Supreme Court invalidated the so-called Millionaires' Amendment, which was a provision added to the Federal Election Campaign Act ("FECA") as part of the Bipartisan Campaign Reform Act ("BCRA") of 2002 to make it easier for Senate and House candidates to raise private contributions when they run against an opponent who uses a substantial amount of personal wealth to pay for his or her campaign. From the reform perspective, the loss of the Millionaires' Amendment was not of great moment. The Amendment was …

Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene

Faculty Scholarship

Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian – Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty – and communitarian – William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the …

The Return Of Spending Limits: Campaign Finance After Landell V. Sorrell, Richard Briffault

Faculty Scholarship

On August 18, 2004, the United States Court of Appeals for the Second Circuit held that the First Amendment, as interpreted by the Supreme Court in Buckley v. Valeo, does not preclude mandatory limitations on campaign expenditures.In Landell v. Sorrell, the court concluded that limitations imposed by the state of Vermont on candidate spending in state election campaigns are "supported by [the state's] compelling interests in safeguarding Vermont's democratic process from 1) the corruptive influence of excessive and unbridled fundraising and 2) the effect that perpetual fundraising has on the time of candidates and elected officials.^" To …

Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault

Faculty Scholarship

Vieth v. Jubelirer is a significant setback to efforts to challenge partisan gerrymandering in court. Four members of the Supreme Court repudiated Davis v. Bandemer and concluded that partisan gerrymanders present a nonjusticiable question, while the fifth, Justice Kennedy, determined that the Court ought to "refrain from intervention" at this time, although he left open the hope that gerrymandering might become justiciable if the right standard of proving a gerrymander is ever found. Yet, strikingly, all nine members of the Supreme Court agreed that, justiciable or not, partisan gerrymanders do raise a constitutional question and some partisan gerrymanders are unconstitutional. …

Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault

Faculty Scholarship

In Nixon v. Shrink Missouri Government PAC, the Supreme Court emphatically reaffirmed a key element of the campaign finance doctrine first articulated in Buckley v. Valeo a quarter-century earlier that governments may, consistent with the First Amendment, impose limitations on the size of contributions to election campaigns. Shrink Missouri was significant because the Eighth Circuit decision reversed by the Supreme Court had sought to strengthen the constitutional protection provided to contributions and had invalidated limitations on donations to Missouri state candidates that were actually higher than the limits on donations to federal candidates that the Supreme Court had previously …

Free Speech And Good Character, Vincent A. Blasi

Faculty Scholarship

Early proponents of the freedom of speech such as John Milton, John Stuart Mill, and Louis Brandeis emphasized the role expressive liberty plays in strengthening the character of persons entrusted with such freedom. These theorists argued that character traits such as civic courage, independence of mind, and the capacity to learn from experience and adapt are nurtured by trusting citizens with dangerous ideas. Today there is much talk about good character in relation to free speech disputes-but all on the side of those who would regulate speakers. It is time to remember that a concern about character cuts both ways …

Reading Holmes Through The Lens Of Schauer: The Abrams Dissent, Vincent A. Blasi

Faculty Scholarship

Even the best scholars rarely persuade. Mostly, they illuminate. They make us more discerning readers and interlocutors.

Here I want to illustrate how Frederick Schauer's work on the law of free speech can help us to read what may be the single most influential judicial opinion ever written on that subject, Justice Holmes's famous dissent in Abrams v. United States. So far as I am aware, Schauer has not produced anything like a line-by-line parsing of the Holmes opinion. I claim nevertheless that a reader familiar with Schauer's ideas is far better prepared on that account to understand what Holmes …

Constitutional Identity, George P. Fletcher

Faculty Scholarship

The aim of this Article is to introduce and clarify a new way of thinking about decisions in close cases, particularly those that address basic issues of constitutional law. When constitutional language fails to offer an unequivocal directive for decision, the recourse of the judge is not always to look "outward" toward overarching principles of political morality. In an illuminating array of cases, the acceptable way to resolve the disputes and to explain the results is to turn "inward" and reflect upon the legal culture in which the dispute is embedded. The way to understand this subcategory of decisions is …