Authors:Grace Slicklen Abstract: Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of national importance through NetChoice v. Moody and NetChoice v. Paxton.This Note explores free speech in the context of social media platforms and their content-moderation decisions. While the Supreme Court has previously grappled with the challenges of adapting constitutional principles to technological advancements, it has yet to fully address the unique dynamics of social media platforms and how they remove content. When a social media platform deletes a post or bans a President, is that “speech” protected by the First Amendment' And if it is, should it be' This Note spotlights a recent split between the Eleventh and Fifth Circuits, stemming from politically motivated attempts to regulate social media platforms in Florida and Texas. This Note aims to serve as a guide to the evolving legal landscape surrounding social media content moderation, offering insights into the imminent Supreme Court decisions that will address the circuit split and shape the future of the digital “land of the free.” PubDate: Wed, 01 Nov 2023 12:13:07 PDT
Authors:Corinne Milnamow Abstract: In 1973, the Supreme Court decided the landmark case, San Antonio Independent School District v. Rodriguez, which held there was no fundamental right to education under the United States Constitution. In the years that have followed Rodriguez, state courts across the country have been left to decide issues related to public school financing. Many plaintiffs in these cases will argue that education is a fundamental right under their state’s constitution and that their respective state’s public school financing structure—one that heavily relies on local property taxes—is unconstitutional because of the discrepancies in the quality of education one will receive in a low poverty versus high poverty school district. Unfortunately, courts across the country frequently reach different and inconsistent conclusions regarding whether education is a fundamental right under their state’s constitution and whether this issue is justiciable.Recently, the Nevada Supreme Court had to address the issue of adequate public school financing in Shea v. State. While this court held that the issue of public school financing was a nonjusticiable political question, the highest courts in other states have held the opposite. This Comment argues that the court in Shea reached the incorrect conclusion and that the issue of public school financing is justiciable. Additionally, this Comment discusses how, in its holding, the Shea court ignored the fundamental right to education that the Nevada Constitution provides. PubDate: Wed, 01 Nov 2023 12:13:06 PDT
Authors:Dane Chapman Abstract: The evolution of Artificial Intelligence (“A.I.”) from a speculative concept depicted in science fiction to its integration into various aspects of everyday life has brought about complex challenges for contemporary legislators. The proliferation of A.I. technology has led to a growing recognition of the need for regulation, as it poses both promises and threats to society. On the one hand, A.I. has the potential to enhance efficiency in various fields, such as medicine and automation of routine tasks. On the other hand, if left unregulated, A.I. has the potential to undermine democratic principles and infringe upon fundamental rights. Thus, legislators are facing the delicate task of balancing regulation with the need to foster continued innovation in the field of A.I. Both the United States (“U.S.”) and the European Union (“E.U.”) have begun taking steps towards the development of A.I. legislation, recognizing the need for a comprehensive approach to address the multifaceted challenges posed by this rapidly advancing technology. PubDate: Wed, 01 Nov 2023 12:13:06 PDT
Authors:Timothy M. Harris Abstract: In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so.In 2021, the Court held that a California law allowing union organizers to access private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on its head by finding a per se taking in an ordinance allowing limited and temporary physical invasions. In doing so, the Court left several questions unanswered, further muddied a murky area of the law, and likely invited a panoply of new lawsuits and varied legal opinions.The measure of damages and the remedy for a temporary taking are entirely unclear after Cedar Point—as this (rather important) issue was virtually ignored by the Court’s majority. Further, the Court never explained its departure from existing balancing tests or the need for a new per se test. This confusing decision has led to more lawsuits that allege a further expansion of takings law. PubDate: Wed, 01 Nov 2023 12:13:05 PDT
Authors:Jeremy Connell Abstract: For over half a century, the Court’s decision in Katz v. United States has been the lodestar for applying the Fourth Amendment. The Katz test has produced a litany of confusing and irreconcilable decisions in which the Court has carved exceptions into the doctrine and then carved exceptions into the exceptions. These decisions often leave lower courts with minimal guidance on how to apply the framework to new sets of facts and leave legal scholars and commenters befuddled and frustrated with the Court’s explanations for the rulings. The Court’s decision in Carpenter v. United States represents the apex of Katz’s unclear standard, counterintuitive application, and lack of guidance for lower courts.This Note examines the evolution of the Court’s Fourth Amendment jurisprudence both before and after the Katz decision and argues that the Carpenter decision epitomizes Katz’s legacy as a flawed precedent that is incapable of adequately applying the Fourth Amendment to new sets of facts in the twenty-first century and beyond. This Note further argues that Katz should be abandoned as the Fourth Amendment standard in lieu of a hybrid approach that combines privacy and property protections and incorporates positive law in determining the scope of the Fourth Amendment. PubDate: Wed, 01 Nov 2023 12:13:05 PDT
Authors:Zachary R. Cormier Abstract: Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege' Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media.In reality, however, the current state of limited purpose public figure jurisprudence is not so grim. This Article will explain how an extensive review of published opinions issued over the last fifteen years demonstrates that the limited purpose public figure category has not provided a refuge for large numbers of social media fraudsters as Justice Gorsuch suggests. To the contrary, it has been rare for courts to find that an otherwise private figure has become a limited purpose public figure by posting on social media alone. This is not the result of some new or modified social media/online test for the limited purpose public figure, but rather largely due to a commitment to the original (and fundamental) role of legitimate news organizations in the analysis.The Supreme Court cases that established the limited purpose public figure category indicated that the key decision which transforms a person from private figure to limited purpose public figure is engagement with the news media. It is that signature action which demonstrates that such person has “thrust” herself “to the forefront” of the public controversy in order to actually “influence the resolution of the issues involved.” This Article will: (1) survey the fundamental role that the news media engagement principle played in the limited purpose public figure framework established by the Supreme Court; (2) provide an extensive review of modern case law which demonstrates how courts have prevented an overextension of the limited purpose public figure category through a commitment to the news media engagement principle; and (3) argue why courts should maintain application of the actual malice privilege to statements about limited purpose public figures (even amidst social media’s continued rise) to preserve free speech and free press rights for news and debate about non-governmental persons with influence over important public issues. PubDate: Wed, 01 Nov 2023 12:13:04 PDT
Authors:Samuel Issacharoff et al. Abstract: Largely missing from the extensive discussions of populism and illiberal democracy is the emerging question of 21st century constitutionalism. Nowadays, it is hard to see relevant constitutional changes without a strong appeal to direct popular political participation. Institutional mechanisms such as referenda, citizens’ assemblies, and constitutional conventions emerge as near-universal parts of the canon of every academic and political discussion on how constitutions should be enacted and amended. This Article’s aim is to offer a cautionary approach to the way participatory mechanisms can work in constitution-making and to stress the difference between the power to ratify constitutional proposals and the forms of governance that must follow.Constitutions are necessarily the product of political and historical moments. Ours is a time of populist challenge to the restraining institutions of governance. We show how constitution-making processes taking place under existing political contexts can fail not simply despite the existence of participatory mechanisms, but in large part because of them. We identify two types of failures. First, the authoritarian failure, which consists of constitution-making processes that lead to authoritarian outcomes or become part of democratic backsliding or abusive processes. Second, the activation failure, by which constitutions are not passed. This failure is likely to take place when reforms attempt to bypass established, functioning institutional actors, whatever their flaws.This Article will turn to the recent failure of the Chilean constitutional effort in 2022 to focus on the historic roles of non-state organizations, most notably political parties, in stabilizing and legitimizing successful democratic governance. The current trend in constitutional formation, reflecting the ascending populist ethos of our times, is to bypass the representative institutions that do exist in favor of a pact between the state and an ill-defined entity known as “the people.” The tendency of political power without structural checks and balances to lead to autocracy is reasonably well understood. But Chile, together with other recent examples of failed constitutional processes, highlights the risks of activation failure in democratic settings—i.e., contexts in which representative institutions exist and function, though flawed. We argue that a relevant condition to prevent the activation failure is to use the constitution-making processes as an opportunity to strengthen the political party system by including the existing parties in the process. Success stories of constitution-making have widely shown the advantages that political compromises among rival actors bring in terms of procedural legitimacy—wide acceptance of the constitution’s content—and substantive legitimacy—the inclination of those processes in promoting politically liberal institutions, but little has been said about activation failures lacking those features. This Article seeks to fill that gap. PubDate: Wed, 01 Nov 2023 12:13:03 PDT
Authors:Amanda Harmon Cooley Abstract: Over half a century ago, the Supreme Court decided Lemon v. Kurtzman, the most controversial Establishment Clause case in judicial history. And despite the Lemon test’s constant criticism, the Court has never expressly overruled the decision in its entirety. This continues to be the case even after Kennedy v. Bremerton School District, in which the Court noted Lemon’s abandonment rather than its complete abrogation. As a result, lower federal district courts have been left in limbo regarding whether Lemon is fair game for any of their Establishment Clause determinations and have been inconsistent in using it as continued precedent. This is creating a quagmire of First Amendment decisions through- out the country in an area of law that is already a muddled mess.Fortunately, this jurisprudential ambiguity no longer exists for those federal district courts in the Eleventh Circuit. Less than a month after the Kennedy decision, the Eleventh Circuit issued the clear guidance that the Supreme Court has perpetually failed to provide by expressly acknowledging the termination of the Lemon test in its jurisdiction in Rojas v. City of Ocala. In doing so, the Eleventh Circuit concurrently refused to accede to the Kennedy majority’s unsubstantiated claim that Lemon’s long abandonment was an uncontroverted part of the Court’s First Amendment jurisprudence. In doing so, the Circuit established a fitting end to the application of Lemon within its geographical jurisdiction while holding the Court accountable for its inaccurate statements about that case.This Article argues that the Eleventh Circuit’s Rojas approach should become the standard bearer for other circuits’ post-Kennedy determinations on the official termination of Lemon in their jurisdictions. Given the Supreme Court’s continued failure to expressly overrule Lemon in its entirety, it has become incumbent upon the federal circuit courts to officially close this interpretive chapter to alleviate inconsistencies in one of the most divisive areas of constitutional law and to achieve efficiencies within their overwhelmed lower court dockets. As the judicial leader stepping into this void, the Eleventh Circuit has significantly contributed to clarifying a chaotic First Amendment doctrine. Consequently, the Rojas approach will prove to be an invaluable circuit breaker in the Establishment Clause jurisprudential canon. PubDate: Mon, 05 Jun 2023 15:45:54 PDT
Authors:Jae Lynn Huckaba Abstract: The recent turmoil in the Florida property insurance market has pushed the Florida legislature to take affirmative action to restabilize the market. But as Florida continues to enact market-based insurance reforms, residents are left to suffer the consequences, especially where the reforms incentivize insurers to unreasonably deny coverage and leave residential policyholders without recourse. The purpose of this Article is to highlight those consequences, including the difficulty of litigating residential property coverage claims under Florida law. PubDate: Mon, 05 Jun 2023 15:45:54 PDT
Authors:Susan L. Shin et al. Abstract: The following situation may sound all-too-familiar for general counsel: a former employee files a lawsuit against the company, despite the existence of a binding arbitration clause in the employment contract. Now, the company must make an important decision. Should it engage in the suit, perhaps move to dismiss, or should it immediately move to compel arbitration and get out of court' This Article dis- cusses the Supreme Court’s May 23, 2022 unanimous opinion in Morgan v. Sundance, which involved this very factual scenario, and seemingly could make it easier for courts to find that the moving party has waived its right to arbitration by engaging in litigation because prejudice is no longer part of the equation. Accordingly, the answer to the question above requires careful analysis of a company’s strategic options at the outset of the case. If the company decides that arbitration is the preferred and more favorable path, it likely should invoke that right early to avoid the risk of losing the right to arbitrate altogether. PubDate: Mon, 05 Jun 2023 15:45:53 PDT
Authors:Jose M. Espinosa Abstract: Federal Rule of Criminal Procedure 6(e) enumerates the exceptions under which courts may disclose otherwise secret grand jury materials. Until recently, long-standing Eleventh Circuit precedent allowed district courts in its jurisdiction to disclose grand jury records based on an extratextual reading of Rule 6(e) that relied on district courts’ “inherent authority” to disclose grand jury materials. In March of 2020, the Eleventh Circuit moved away from this precedent and held that district courts lack the inherent authority to authorize the disclosure of grand jury records outside of the limited exceptions set forth in Rule 6(e). Although the Eleventh Circuit moved away from its broad interpretation of Rule 6(e)’s grant of authority to release grand jury materials, many of its sister circuits are steadfast in their adoption of the “inherent authority” approach to the disclosure of grand jury materials. The Supreme Court had the opportunity to squarely consider this issue, and it chose not to— but on January 21, 2020, the Court expressly stated that whether district courts may exercise their inherent authority to release grand jury materials outside the enumerated exceptions found in Rule 6(e) is an important question. Ultimately, the resolution of the circuit split examined by this Article lies in the hands of the Advisory Committee on the Criminal Rules.Accordingly, this Article takes the Eleventh Circuit’s decision in United States v. Pitch one step further and, following Judge Adalberto Jordan’s lead, advocates that district courts should be authorized to order the disclosure of grand jury materials of particular historical significance. Under the current regime, they cannot. With that understanding, this Article argues that the Advisory Committee on the Criminal Rules should recommend an amendment to Rule 6(e) that would allow for disclosure of grand jury documents of historical significance under certain circumstances. This Article concludes by providing proposed language that could serve as a framework through which the Advisory Commit- tee on the Criminal Rules could prevent district courts from creating exceptions outside Rule 6(e) while simultaneously allowing the disclosure of grand jury materials in historically significant cases and respecting the role grand jury secrecy has played in American jurisprudence. PubDate: Mon, 05 Jun 2023 15:45:53 PDT
Authors:Laura Blockman Abstract: On September 1, 2021, the Texas Legislature enacted the Texas Heartbeat Act, an anti-abortion statute popularly known as Senate Bill 8 (“S.B. 8”). Although many states passed anti-abortion legislation in 2021, S.B. 8 received national attention due to the law’s unusual enforcement mechanism: S.B. 8 empowers private citizens, not state actors, to sue individuals who perform or aid in the performance of an abortion after a fetal heartbeat is detected.Unsurprisingly, the authors of S.B. 8 received extreme back- lash from the public, and many academics and legal scholars viewed the law’s private enforcement mechanism as an effort to evade judicial review under then-recognized precedent Roe v. Wade. In an effort to defend S.B. 8’s strategic statutory structure, the law’s authors compared S.B. 8’s private enforcement provision to similar provisions found in qui tam and environmental protection statutes. This Note discusses the rationales behind private citizen enforcement pro- visions in qui tam and environmental protection statutes and analyzes why these rationales are not applicable in the abortion context. PubDate: Fri, 05 May 2023 14:02:36 PDT
Authors:Nina Griscelli Abstract: Military campaigns often carry with them official names and underpinning objectives. In Afghanistan, these campaigns were known as Operation Enduring Freedom in 2001, and later, in 2015, as Operation Freedom Sentinel. In total, the United States and its allies remained in Afghan territory for 7,268 days, twenty years, in support of the “Global War on Terror.” Within that time, the democratic construction of a “free” Afghan society—also known as nation-building, regime change, or transformative military occupation—deeply transformed the status quo of the population. To the West, “Operation Nation-Building” became the most strategic and “hopeful alternative to the vision of the extremists.” Fast forward in 2021, however, this enterprise seemed to have failed entirely, for these very “extremists”—the Taliban—retook power immediately upon military withdrawal. Today, Afghanistan is facing an unprecedented humanitarian crisis with a very real risk of systemic collapse and hu- man catastrophe—thereby reversing what many considered twenty years of societal gains, especially in regard to women’s rights.As a legal backdrop to this forever war, International Humanitarian Law (“IHL”) and Human Rights Law complementarily attempted to protect civilians and ensure human dignity. This Note will solely focus on IHL. Indeed, by assuming that endings of “occupations” remain conducts that occur during war, the scope of this Note falls well within jus in bello considerations. Accordingly, this Note does not assess the legitimacy of the war itself (jus ad bellum), nor does it suggest precise guidelines on how to terminate war (jus post bellum)—although it might shed light on the manner in which these guidelines should be considered.Without debating over the legitimacy and legality of nation- building within the framework of IHL, this Note stands for the proposition that foreseeably disastrous endings of nation-building enterprises, once identified, should trigger an additional legal duty under IHL—one of reasonable care— toward the population that is about to be left behind. To back up this logic, this Note will take a hard look at hard law— mainly the Fourth Geneva Convention—and discuss legal vacuums along the way. PubDate: Fri, 05 May 2023 14:02:36 PDT
Authors:Isabelle M. Carbajales Abstract: Cosmetics only first became regulated after a series of tragic events where users were seriously harmed from the use of cosmetic products. These tragic events prompted legislators to enact the Food, Drug, and Cosmetics Act of 1938. Before then, law makers feared that regulating the cosmetic industry would lower the tone of legislation because they considered the cosmetic industry to be inconsequential. At present, the regulatory system in place to protect vulnerable cosmetic consumers is nearly identical to when it was enacted over eighty-six years ago—even though the cosmetic market looks nothing like it did back then. The consumer base for cosmetics has expanded drastically, and consumers use more products daily. Further, scientific advancements now reveal the safety or danger of chemicals within the products. Given the multitude of studies indicating the presence of dangerous chemicals latent in cosmetics, the regulatory system requires modernization. Unfortunately, legislators consistently fail to pass legislation to regulate the industry and protect cosmetic consumers. Do legislators still consider the cosmetic market too inconsequential to regulate' This Note advocates for stricter cosmetic regulations, discusses alternative means of regulation reform, and evaluates the likelihood of legislators enacting such reform. PubDate: Fri, 05 May 2023 14:02:35 PDT
Authors:Susan H. Bitensky Abstract: This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude that there is a fundamental constitutional right to vote per se. But, a close and by-the-book reading of the pertinent cases shows that the Court has never recognized the latter and provided in its stead a placeholder of counterfeit worth.This Article proposes a course correction. To that end, the Article provides an in-depth analysis of additional constitutional provisions, any one of which would serve the Court well in definitively recognizing a fundamental right to vote per se. Such recognition is not just a matter of clarifying constitutional doctrine, important as that is. The advent of the new right, by championing and amplifying the body politic’s voice on America’s future, should operate as a counteractant against the anti-democratic pressures assailing us. PubDate: Fri, 05 May 2023 14:02:34 PDT
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