Note: Reconciling the Public Employee Speech Doctrine and Academic Speech After Garcetti v. Ceballos
By Darryn Cathryn Beckstrom. Full text here. In 2006, the Supreme Court held in Garcetti v. Ceballos that public employees are not entitled to First Amendment protection for speech arising from their official duties. The Court declined to address whether Garcetti’s holding applied to academic speech, and consequently, lower courts are unclear about whether academics employed…
Continue ReadingConcepts, Categories, and Compliance in the Regulatory State
By Kristin E. Hickman & Claire A. Hill. Full text here. Law is, of course, always a product of its history. But for some regimes, history matters both more and differently than for others. In some instances, the requirements and scope of a regulatory regime’s coverage are sufficiently attenuated from statutory text and purpose that…
Continue ReadingFrom Exclusivity to Concurrence
By Mark D. Rosen. Full text here. In arguing that President Washington could not interpret a mutual defense treaty that potentially required America to join battle with France—but that only Congress could interpret the treaty on account of its power to declare war—James Madison reasoned that “the same specific function or act, cannot possibly belong to…
Continue ReadingLegislative Prayer and the Secret Costs of Religious Endorsements
By Christopher C. Lund. Full text here. For fifty years, the Establishment Clause has generally required the government to be neutral on religious questions. That principle of neutrality, however, has become more controversial with time. Now even quite moderate judges and commentators reject it as a conceptual model for the Establishment Clause. Part of it is…
Continue ReadingIdentity Scripts & Democratic Deliberation
By Holning Lau. Full text here. This Article contributes to the literature on negotiation of identity scripts. For an example of such negotiation, consider the prominent case of Barack Obama. Commentators have noted that Americans typically perceive President Obama as a black man and ascribe him corresponding scripts—that is to say, socially constructed expectations—for “acting black.”…
Continue ReadingNote: When Sosa Meets Iqbal: Plausibility Pleading in Human Rights Litigation
By Jordan D. Shepherd. Full text here. Human rights litigation under the Alien Tort Statute (ATS) has increased dramatically in the past few decades. Due to actions of a host of players around the world, this struggle for rights and remedies is dependent upon the rules of domestic court systems. Within U.S. civil litigation, two key…
Continue ReadingNote: UNCLOS, but No Cigar: Overcoming Obstacles to the Prosecution of Maritime Piracy
By Ryan P. Kelley. Full text here. The international response to acts of maritime piracy around Somalia requires a credible foundation in international law. Naval patrols from nearly every world power lack accurate and well-reasoned jurisdictional mandates necessary to carry out their duties effectively. They want for this essential legal complement because their states fail to…
Continue ReadingNote: Blowing Up the Pipes: The Use of (c)(4) to Dismantle Campaign Finance Reform
By Cory G. Kalanick. Full text here. In the aftermath of the Supreme Court’s decision in Citizens United, nonprofit organizations originally designed to promote social welfare interests have become the latest loophole for political financiers to bypass campaign finance regulations. The federal regime of campaign finance laws—designed to prevent corruption and preserve the integrity of our…
Continue ReadingFreedom of Testation / Freedom of Contract
By Adam J. Hirsch. Full text here. The Article argues that lawmakers ought to recategorize inheritance law and contract law as cognate bodies of doctrine within a larger genus of transfers law. The Article examines comparatively the justifications for freedom of contract and freedom of testation, and concludes that their underlying rationales are largely, although not…
Continue ReadingChildren's Constitutional Rights
By Anne C. Dailey. Full text here. The long history of denying children the full range of constitutional rights has its roots in a choice theory of rights that understands rights as deriving from the decisionmaking autonomy of the individual. From the perspective of choice theory, children do not enjoy most constitutional rights because they lack…
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