In seeking to develop a more coherent theory of the First Amendment’s Expression Clauses, the Supreme Court has largely overlooked an important political interest: that of individual participation. This essay, which will appear in the NYU Journal of Legislation and Public Policy, describes how the Court has largely abandoned an individualist for a structuralist view of these provisions. Under this approach, expression doctrine aims primarily to protect not individual speakers, but social processes. The essay then traces this change and its implications in some of the Court’s leading election law cases. In particular, the Court’s recent overruling of Austin v. Michigan Chamber of Commerce in Citizens United v. FEC and protection of business corporations’ right to make unlimited independent expenditures in candidate elections rest on this change and show the great effects it has had on the structure and practice of our politics. The essay concludes by calling for recovery of this now subordinated participation interest.
The Environmental Law and Community Engagement Clinic at the University of Virginia School of Law filed this amicus brief on behalf of San Bernardino...
President Joe Biden promised during his State of the Union address on March 7, 2024, that he would make the right to get an abortion a federal law.
“If...
Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general...
Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting...
On December 15, 2023, the U.S. Court of Appeals for the Fifth Circuit issued its decision in Illumina, Inc. v. FTC. Although the court vacated and...
On January 17, the Supreme Court heard arguments in what are potentially the most significant commercial law cases of the last decade. In the...
Liberalism is back on its heels, pushed there by political movements in the United States and Europe and by the critiques of legal scholars and...
This Article introduces the Jurist-Derived Judicial Ideology Scores (JuDJIS), an expert-sourced measure of judicial traits that can locate nearly...
We live in a golden age of student surveillance. Some surveillance is old school: video cameras, school resource officers, and tip lines. Old-school...
It is widely believed that President Donald Trump’s judicial appointments reflected a strategy of appeasing evangelical Christians and other religious...
Cyber stalking involves repeated, often relentless targeting of someone with abuse. Death and rape threats may be part of a perpetrator’s playbook...
Fifty years ago, federal and state lawmakers called for the regulation of a criminal justice “databank” connecting federal, state, and local agencies...
In the last few years, the Supreme Court has upended its doctrine of religious freedom under the First Amendment. The Court has explicitly rejected...
We apply a dynamic influence model to the opinions of the U.S. federal courts to examine the role of the U.S. Supreme Court in influencing the...
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
Generative AI is already beginning to alter legal practice. If optimistic forecasts prove warranted, how might this technology transform judicial...
Professor Elizabeth Scott, the chief reporter of the American Law Institute’s (ALI) Restatement of Children and the Law, has often observed that the...