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Promising the First Amendment: (De)Regulating Speech in Higher Education
Full text linkThe war between Hamas and Israel has caused havoc in higher education. Amid student unrest, alumni pressure, congressional hearings, civil rights investigations, and student lawsuits, universities stand at a crossroads. The current situation, in which most private universities unevenly regulate student speech under ambiguous student codes, is not sustainable politically or legally. A tsunami of litigation and regulatory actions has already begun. One increasingly favored response is for private universities to more vigorously enforce existing codes or expand their scope. An alternative is for private universities to deregulate student expression and commit by contract to the First Amendment. This Article argues for the latter approach largely on pragmatic grounds. In essence, our argument is based upon the realities of university organizational behavior, which make it difficult for universities to enforce speech codes in a manner that complies with their statutory and contractual obligations. Ambiguous codes, informal process, and political homogeneity among decision-makers inevitably result in inconsistent regulation of speech. These problems can be mitigated by committing to the First Amendment, which would both clarify and constrain university speech regulations by incorporating a large body of caselaw, some of which bears directly on higher education. Such clarity would limit the scope of university discipline, provide a basis for legally required consistency, and be more readily amenable to external review by courts and federal regulators. Experience with the First Amendment in public universities suggests that such a commitment will not have deleterious consequences for campus life
A Supreme Sidestep: The Justices’ Artful Dodge on Platform Immunity
Full text linkThe foiled ISIS plot to attack Taylor Swift concerts, coordinated by teens on social media platforms with a significant US presence, illustrates the dangerous consequences of unchecked online content. This incident, coupled with other tragic cases—such as the sexual exploitation of a minor lured through Facebook and Tyler Clementi’s suicide following a privacy violation on Twitter—highlights the urgent need to reassess 47 U.S.C. § 230 of the Communications Decency Act. Enacted in 1996, this law provides broad immunity to interactive computer services, including social media platforms, shielding them from liability for user-generated content. While initially celebrated as a catalyst for online innovation and free speech, § 230 now faces criticism for enabling the spread of misinformation, hate speech, and illegal content while hindering victims’ ability to seek redress. Despite numerous legal challenges, the Supreme Court consistently avoids substantive rulings on § 230’s interpretation, instead deciding cases on procedural grounds. This article explores the Court’s failure to provide substantive guidance and argues that the harms of § 230’s safe harbor provision now outweigh the justification for judicial deference, particularly in an era of congressional gridlock. Without meaningful intervention, the negative impacts of § 230 will likely persist, posing ongoing risks to individuals and society. As these risks escalate, the Supreme Court’s continued sidestep of the substantive issues surrounding § 230 becomes increasingly problematic, leaving a critical gap in digital-age jurisprudence that urgently needs to be addressed
Mixed Review of Constitutional Rights in Cuba
Full text linkCuba’s 2019 Constitution and the 2022 Law on the Process of Protection of Constitutional Rights create a mixed model of review. Accordingly, the legislature and the executive review the constitutionality of legislation and regulations, while the courts review the constitutionality of state actions. Synthesizing comparative constitutional law and new institutionalism in political science, this article argues that the mixed constitutional review in Cuba is shaped by different historical influences; competing socialist and liberal ideas and discourse; competing political interests; and competing socialist and universal values. The Cuba experience presents a new hope for other socialist countries like China and Vietnam where the vehement struggle for judicial review has largely failed. Judicial review is not impossible in the socialist regimes. In such regimes, political review can be retained, but judicial review of the constitutionality of state actions can be introduced without undermining legislative supremacy. Yet, Cuba’s version of mixed constitutional review is limited: courts are not allowed to review legislation and regulations. In the longer term, an expanded model of mixed constitutional review can be adopted in Cuba and other socialist states, which would integrate political review and judicial review of regulations and legislation
The \u27Realness\u27 Key to Compelled Passcode Production
Full text linkThis Article explains how the Foregone Conclusion exception to the Fifth Amendment’s privilege against self-incrimination applies to compelled passcode production. The Supreme Court fashioned the Foregone Conclusion exception in connection with the compelled production of documentary evidence. It facilitates government access to real evidence despite the implicit factual communications inherent in a target’s act of producing it (i.e., that the real evidence exists, is accessible, and is what the state demanded). Engaging with the ‘real evidence’ limitation for compelled acts of production, the Article shows that focusing on unlocked devices and/or stored passcodes as the real evidence to be produced in compelled passcode entry cases can resolve splits among courts and commentators while protecting targets from compelled revelation of mere information.
This Article goes beyond the technological nuances of encryption to consider realness based on the average user’s experience of a passcode as something that exists outside the mind. Applying Act of Production first principles to the real evidence of unlocked devices and stored passcodes clarifies that the government need not demonstrate pre-production knowledge of the contents of a locked device to satisfy the Foregone Conclusion exception. It further confirms that the reasonable particularity standard often associated with the exception and the Foregone Conclusion exception’s authentication requirement play only limited roles in passcode cases. The Article concludes with a brief explanation of how the first- principles approach to compelled passcode production can also demystify compelled use of biometrics to unlock digital devices
Ending the Presumption of Reasonableness and Using Data to Reduce Sentencing Disparities
Full text linkThe idea that one’s punishment should depend on the crime committed rather than which judge happens to do the sentencing strikes most as uncontroversial, if not a requirement for a fair sentencing regime. Forty years ago, the passage of the Sentencing Reform Act promised just that result. Increased data availability allows us to evaluate the project’s success. The results are not encouraging.
Federal defendants are sentenced using guidelines issued by the United States Sentencing Commission that sometimes bear little relation to the underlying wrongdoing. This has created a split among judges, with some following the guidelines and others rejecting them. The consequences are arbitrariness in sentencing and unwarranted disparities across offenders.
In 2007, the Supreme Court permitted appellate courts to presume the reasonableness of guideline sentences, largely insulating those sentences from judicial review. Much has changed since then, and it is time for the presumption to go. The findings of the original data analysis presented in this Article, as well as developments since the Court’s decision, show that the claims made in support of the presumption are unfounded. In fact, some of the related case law rests upon provably false empirical premises.
Today, most sentences are not within the range set by the guidelines. Favoring the minority of sentences that are within the range results in a sentencing regime incompatible with the overriding statutory aim of avoiding unwarranted sentencing disparities. Rather than presuming the reasonableness of within-guideline sentences, the courts can chart a course correction by prioritizing the data on actual sentences from the Sentencing Commission. Such a shift would achieve more consistent sentences across offenders convicted of similar crimes
Disability Activism And Legal Education: How The Student And Parent Activists of the Disability Rights Movement Paved The Way For Law Students To Challenge Discrimination
Full text linkDisability discrimination in education is a long-standing and powerful tradition in the United States. Students with disabilities in higher education have historically been, and continue to be, the most powerful harbingers of change in eliminating disability discrimination in education. The birth of the disability rights movement occurred in higher education institutions across the nation in the 1970s, and the movement achieved both cultural and legislative success. Its spirit continues on today in U.S. law schools. Law students with disabilities are utilizing the legislative advances achieved by the disability rights activists of yesteryear in order to create a more equitable system of legal education. With support and buy-in from law schools and the legal community, law students with disabilities can bring about systemic change that would benefit the legal field as a whole. Through the use of strategic litigation from students along with active cooperation and acceptance from law school administrators, individual professors, and fellow students, disability discrimination in legal education can be greatly reduced