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First Amendment Disequilibrium
No full textThe Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers decision embody this view. Professor Cass Sunstein has described these cases as establishing a “First Amendment equilibrium,” one that arises out of the structural competition between the press and the executive. Today, judges and legislators continue to treat the press and the government as equal combatants in these disputes. Yet whatever equilibrium might once have existed between the press and executive branch has been destabilized. The institutional press has been eviscerated in recent years—hemorrhaging talent, expertise, resources, and legitimacy. Wide swaths of the country now qualify as “news deserts,” lacking any local press presence at all. Public trust in the mainstream media has also plummeted. At the same time, many internal checks no longer constrain the ability of the executive branch to guard its secrets. This combination of a hollowed-out press and an insufficiently checked executive has given rise to a First Amendment disequilibrium, unsettling the foundations of this critical segment of constitutional law. This Article describes the causes and consequences of this disequilibrium and argues that recalibration is essential to fostering effective democratic self-governance
Torn Between the Two: Practicing Law or Religion
Get PDFUnited States courts have long struggled to define the intersection of public institutions and religious practices. Though higher education institutions aim to enrich their campuses with diverse communities, they often fail to cultivate an inclusive culture for them. One minority community that has long faced experiences of exclusion is Muslim law students.
According to the Pew Research Center, Islam is the fastest-growing religion worldwide. Despite their growing presence, Muslims remain a minority and face exorbitant levels of Islamophobia. Due to these issues, law schools lack familiarity with Muslim practices and are hesitant to learn, making it challenging for Muslim students to obtain religious accommodations. Requesting religious accommodations or other support is more multifaceted than it may seem. Balancing individual religious practices with avoiding government entanglement in religion is delicate. The First Amendment’s Free Exercise and Establishment Clauses, along with federal and state regulations, outline that public law schools are required to provide religious accommodations when it would fail to protect a student’s Free Exercise rights. Additionally, law schools should offer these accommodations to further campus inclusivity and student performance.
This Note is divided into three Parts. Part I highlights the historical background of Islamophobia and its impact on students in higher education, as well as the legal obligations and limitations for law schools in providing religious accommodations. Part II examines the obstacles Muslim law students encounter, which hinder their ability to practice their faith whilst being a student. These obstacles could be limited if certain religious accommodations are in place. Part III presents recommendations to law schools, based on the various problems described in Part II, on how to provide a constitutionally accommodating space on campus
Restoring Reasonable Expectations to Privacy at Work in the Face of Modern Electronic Monitoring Practices
Get PDFThis Note argues that stronger legal protections are necessary in California to protect workers’ dignitary interests in the workplace in the face of prevalent electronic monitoring. In particular, those protections should be grounded in a respect for a worker’s personhood rather than property rights relating to worker data collected by employers. In California, workers have some limited privacy and autonomy protections found in common law, the state constitution, and various statutes. Caselaw and legislative enactments have recognized the value of protecting personhood. The passage of the California Privacy Rights Act in 2020 marked a shift toward privacy protections grounded in data as property. This Note critiques the ability of that law to protect workers’ dignitary interests. Moving past the critique, this Note offers suggestions for improving California work standards under the law today, in addition to proposing legislation to strengthen protections for workers in the future based on personhood rather than property interests
Re(de)fining Patent Eligibility
Get PDFThe patent system is at the heart of America’s innovation scene, serving as the lifeline for America’s status as an industrial titan as it seeks to inspire inventors worldwide to innovate and discover. The confines of patent-eligible subject matter were set out by Congress through the power vested by the Constitution, and these boundaries have been re(de)fined as the Supreme Court has carved out exceptions to these standards including: laws of nature, abstract ideas, and natural phenomena being excluded from patentability. In response to criticisms of legal uncertainty surrounding patent-eligibility under the current regime, two senators have introduced The Patent Eligibility Restoration Act of 2023 (PERA 2023). With bipartisan support, the Act has been introduced to reform the patent system most notably through abrogation of the judicially-created exceptions, replacing them with an explicitly enumerated list of what categories of invention would be ineligible for patent-protection. While the proposed legislation attempts to provide some clarity to the patent-eligibility jurisprudence and bring the patent system closer to its intended purpose, Congress must take care to ensure that they are not overstepping any possible constitutional limits, and they must carefully navigate possible interpretational difficulties to ensure the legislation has its intended practical effect. This Note explores the constitutionality of the judicially-created exceptions and how they may affect the reach of the legislation, as well as possible interpretational issues of the proposed legislation that may be guided by European patent jurisprudence, to discuss the efficacy of the bill in achieving its ultimate goal of promoting innovation in America