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Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It
No full textWith the overturning of Roe v. Wade, the antiabortion movement has focused on a new strategy: transforming the Comstock Act, a postal obscenity statute enacted in 1873, into a categorical ban on abortion--a ban that Americans never enacted and, as the movement recognizes, would never embrace today. Claims on the Comstock Act have been asserted in ongoing challenges to the approval of the abortion pill mifepristone, in litigation before the Supreme Court, and in the 2024 campaign for the presidency. This Article offers the first legal history of the Comstock Act that reaches from its enactment to its post-Dobbs reinvention. Revivalists read the Comstock statute as a plain-meaning, no-exceptions, nationwide abortion ban. In countering revivalist claims, this Article recovers a lost constitutional history of the statute that explains why its understanding of obscenity and of items prohibited as nonmailable has evolved so dramatically in the 150 years since the law was enacted. We show that the Comstock law was the first federal obscenity law to include writings and articles enabling contraception and abortion, condemning them along with erotica and sex toys as stimulants to illicit sex. At no point was this ban absolute. The law, by its terms and as enforced, policed obscenity rather than criminalizing health care. Even the judges who developed the most expansive Victorian interpretation of obscenity--authorizing censors to prosecute advocates for free love and voluntary motherhood--protected the doctor-patient relationship. The public's repudiation of this expansive approach to obscenity as "Comstockery"--as encroaching on democracy, liberty, and equality-- led to the statute's declining enforcement and to cases in the 1930s narrowing obscenity and expanding access to sexual education, contraception, and abortion. These developments were not only statutory; they were constitutional. From conflicts over Comstock's enforcement emerged popular claims on democracy, liberty, and equality in which we can recognize roots of modern free-speech law and the law of sexual and reproductive liberty lost to constitutional memory. Recovering this lost history changes our understanding of the nation's history and traditions of sexual and reproductive freedom
Legal Realism and the Separation of Religion from Judicial Reasoning
No full textVol. 36:2Jerome Frank’s Law and the Modern Mind was caricatured for a generation as a reductive work of psychology, distilling law into “what the judge had for breakfast.” This article argues that Frank’s 1930 book needs to be understood as intervening in a theological dispute about the nature of law. In the United States, the prevailing understanding had been that law came from God and that legal rules were, at some level of abstraction, simply absolute or natural legal principles to which human beings had selective access. Judges, from this perspective, were mere instruments for divine truth. This conception of law supported a legal system that gave a privileged place to Christianity and was often hostile to religious minorities. Frank and the legal realists drew on the insights of Oliver Wendell Holmes. They were deeply invested in the idea that the law was a human creation and therefore changeable by humans. Rather than “a government of laws, not of men,” they argued for the inverse: human beings ultimately created and could adjust legal rules. Many of the realists were religious outsiders—Jews, liberal Protestants, and skeptics—who understood their theoretical interventions as undermining a coercive Protestant legal order.
The article suggests that Frank’s efforts to separate U.S. law and religion were an admirable and necessary step in a pluralistic democracy. In the present, natural law theories as a legal foundation for U.S. law endanger the secular legal order and threaten religious minorities. Frank’s writings about the need for a law shorn of religious impulses, where judges know they are motivated by human factors, are valuable and offer a contrast to attempts to fuse law and Christianity.
“Man, we would say, must no longer search for God in law, for law is not the place to seek religious satisfaction . . . We would urge that as men have learned to separate religion and science, leaving the latter to its own devices, they must learn not to let religion interfere with law; so far as the administration of justice is concerned, there must be a twilight of the gods.”
Jerome Frank, Law and the Modern Mind (1930)
Antitrust Abandonment
No full textVol. 42:1This Article identifies the problem of “antitrust abandonment”: a pattern
of long-term, unexplained disuse of antitrust-like enforcement powers
held by industry regulators. Much of antitrust scholarship focuses on the primary
federal enforcers, the Federal Trade Commission (FTC) and the Department
of Justice (DOJ). This Article looks instead at several other federal
agencies that hold statutory antitrust powers in specific industries, some exclusively.
It finds a striking pattern in which these regulators rarely use their
antitrust enforcement authority.
The Article critically evaluates the track record of antitrust-like enforcement
by three industry regulators—in ocean shipping, rail, and meatpacking—
using primary research, historical accounts of agency (in)action over
time, and the perceptions of scholars, policymakers, and the agencies themselves
of their competition oversight. The Article finds an alarming result:
these agencies have brought only a handful of antitrust claims, sometimes
none at all, over the span of decades, and, in one case, over a century. The
Article argues that this antitrust abandonment is a problem, because it leaves
unintended gaps in competition enforcement across pockets of highly concentrated,
economically important industries.
The Article then considers how to cure and prevent antitrust abandonment.
It calls for an immediate shift in policymaker expectations, away from
the recent push for regulators to use their long-dormant antitrust powers,
and toward the empowerment of expert antitrust enforcers—the FTC and
the DOJ—to act in abandoned spaces. Achieving this change will require
Congress to repeal arcane legislative exceptions, as well as more subtle shifts
in agency perceptions of the need for antitrust enforcement in regulated industries
Unfairness, Reconstructed
No full textVol. 42:95A paradigm shift is afoot at major federal consumer protection agencies.
For four decades, a bipartisan bloc of bureaucrats has seen the purpose
of consumer protection as promoting informed consumer choice or “consumer
sovereignty.” The idea was that informed consumers in competitive
markets would protect themselves by choosing among sellers. Ensuring access
to information would then shore up markets’ self-correcting tendencies
without requiring moral judgment. In the past few years, by contrast, regulators
have prioritized sector-wide regulation, enforcement sweeps, and strategic
cases against market leaders. They have justified their actions not (exclusively)
in terms of informed choice or efficiency but in terms of values
like protecting the vulnerable, preventing harassment, preserving privacy,
and correcting for unjust inequalities.
Focusing doctrinally on uses of the unfair-practices authority shared by
several agencies, this Article situates the shift both historically and theoretically.
Historically, it argues that consumer sovereignty lost ground after the
global financial crisis of 2007 and controversies over Big Tech. Theoretically,
it argues that the consumer sovereignty framework relied on a too simple
model of markets as deviations from “perfect competition” that
needed only better information to get back in line and that the paradigm
emerging in its place is properly committed to correcting for power asymmetries
in irredeemably imperfect markets. I call the new paradigm an “antidomination
framework” and defend it
On Becoming and Being a Criminal Defense Attorney
No full textSteven B. Duke grew up in a tiny farming community in Arizona. In college, he experienced injustice during an encounter with the police and decided to attend law school. As a result of his success at the University of Arizona Law School, Duke was offered a clerkship with Justice William O. Douglas for the 1959-60 Supreme Court term. As Duke describes in this article, working for Justice Douglas was a rewarding and demanding experience. Douglas, probably the most liberal Justice ever to serve on the Supreme Court, had a dazzling intellect and wrote many books on all manner of subjects. As the Justice's only law clerk, Duke worked long hours, assisting him on cases and with speeches, articles, and books. As Duke recounts, clerking for Douglas was thankless and stressful. Nevertheless, Duke regards this year as the most rewarding professional experience of his life. Subsequently, Duke earned an LL.M. at Yale Law School and joined the faculty, earning tenure as a tax professor. During the 1960s, he changed course, becoming a criminal defense attorney while continuing to teach at Yale Law School. As Duke describes, his summer working as a public defender in Phoenix, Arizona, was pivotal to his decision to practice and teach criminal law. Ultimately, Duke believes, the injustice concentrated in criminal law is not immutable but is subject to correction at all levels of its promulgation and administration. And as his own story set out in this article demonstrates, even a shy, nonpolitical person who is trained in criminal litigation can effect great change. Ultimately, Duke concludes, a competent, committed criminal defense lawyer is a savior of freedom
Government Control over Qui Tam Suits and Separation of Powers
No full textVol. 42:382The False Claims Act’s qui tam provisions, authorizing private parties or relators to sue on behalf of the U.S. government, have faced renewed constitutional challenges despite record recoveries. Within the past two years,
three Supreme Court Justices suggested qui tam may violate Article II of the Constitution, and a district court dismissed a qui tam lawsuit as unconstitutional. The Department of Justice has broad statutory authority to dismiss a qui tam case and veto any settlement or voluntary dismissal by a relator, allowing the Executive to maintain control over qui tam suits. But DOJ rarely exercises these rights, as empirical studies reveal. This Note highlights the disconnect between the importance of executive control over qui tam cases for the FCA’s constitutionality and DOJ’s infrequent oversight in practice.
It proposes (1) amending the FCA to further DOJ incentives to dismiss by
requiring non-intervened cases proceeding to have merits similar to government-initiated FCA cases and (2) resolving the circuit split in favor of broad government authority to object to a settlement between relator and defendant, weakening separation-of-powers challenges
The Dangerous Rise of "Dual-Use" Objects in War
No full textEach day, the news brings stories of military attacks on schools, hospitals, apartment buildings, electrical facilities, and other critical civilian infrastructure. The militaries attacking these objects often seek to justify the attacks by claiming that the civilian objects are being used by militants. Objects that are believed to have both military and civilian use are often referred to as "dual-use" objects. Even though the term has become common, international law does not recognize a "dual-use" object as a legally meaningful category. Rather, the postwar Geneva Conventions that lie at the core of modern international humanitarian law establish a bright line between "military objectives" that are considered legitimate targets of military force, and civilians and "civilian objects," which are to be strictly protected. We show in this Article that the targeting of dual-use objects over the last several decades has blurred this line, placing civilians at great risk. The United States has played a critical role in the increasingly expansive targeting of dual-use objects. Indeed, most accounts of the origins of dualuse targeting start with the 1991 Gulf War, in which the U.S.-led coalition responded to Iraq's occupation of Kuwait with airstrikes on Iraq's electrical infrastructure and bridges. The Article reviews the history of dual-use targeting and presents an original dataset and primary-source evidence from the sites of U.S. airstrikes in Iraq and Syria from 2014 to 2018 to illustrate the wide range of dual-use objects that the U.S. military has struck. It draws on ground reporting and research to show the true costs of this dual-use targeting for civilians living in areas of conflict. The United States is far from alone in targeting dual-use objects, but we focus on it because it shapes the law of armed conflict by projecting force around the world, providing legal justifications for its use of force, and setting the standards by which other states are measured. Finally, this Article recommends that states engaging in military operations collect better information about dual-use objects so that they can make better-informed targeting decisions. We also offer several recommendations for clarifying international humanitarian law to prevent further erosion of the protections the law provides to civilians during war
Moody v. NetChoice: The Supreme Court Meets the Free Speech Triangle
No full textConcerned that large social media companies discriminated against conservative voices, Texas and Florida passed laws regulating how social media companies could moderate posts, sanction speakers, and promote or demote content. Conservative politicians in the two states were deeply suspicious of the large social media companies headquartered in the Bay Area of liberal California. They believed that these social media companies, Meta, YouTube, and Twitter, were unfairly removing conservative speech, demoting it in social media feeds, or de-platforming conservative speakers. Texas and Florida sought to restore online ideological balance and prevent what they considered censorship by the companies’ progressive employees.
The states argued that in curating and organizing content social media companies were not actually engaged in First Amendment speech; they were only engaged in private censorship. In the alternative, the states argued that they could treat social media platforms as common carriers or otherwise subject the platforms to nondiscrimination rules to promote a diversity of ideas and opinions.
Because the state statutes were so broadly (and badly) drafted, the Supreme Court did not rule on the merits but instead sent the cases back to the lower courts with instructions about the First Amendment rights of social media companies. Justice Elena Kagan’s majority opinion in Moody v. NetChoice, LLC4 held that when social media companies curate posts, they make “editorial judgments†and create an “expressive product†protected by the First Amendment.5
The Supreme Court began considering internet speech cases almost three decades ago, in Reno v. American Civil Liberties Union.6 But social media companies as we know them today did not exist in 1997. Moody was the Court’s first attempt at explaining how the First Amendment applied to the business models of the social media companies that now dominate the digital public sphere. Moody was also the Court’s first attempt at thinking through the problems of a digital public sphere in which states are no longer the only governors and regulators of free expression and must contend with powerful global corporations that shape public opinion and dominate democratic life. Finally, Moody also offered brief hints about how the First Amendment might apply to content produced by algorithms and artificial intelligence (AI).
In this Article, I explain how the digital public sphere differs from the world that produced most of the Court’s First Amendment doctrine. I then explain how the Court both recognized and failed to recognize those changes. Moody’s reasoning displays many of the limitations of American First Amendment doctrine. It asks whether states are abridging the speech of platforms, but it does not consider the free speech interests of end users. Focusing on platforms as speakers, it plays less attention to platforms as governors. Although Moody does not close the door on regulations designed to check the governing power of digital platforms, it bestows significant First Amendment protections on the ways that social media platforms govern end users
Tradition in Constitutional Adjudication
No full textVol. 36:1The Supreme Court has increasingly relied on the notion of tradition to decide questions about constitutional rights. This approach is not implausible. Constitutional adjudication should be attentive to the history of social practices. But traditions are rarely fixed. They are open-ended, constantly evolving, and subject to normative contestation. Judges, moreover, are part of a distinctive legal tradition with its own standards and commitments. Thus, the idea of tradition should not lead to the inexorable authority of past social practices over contemporary adjudication. It should instead lead to a recognition of the space for normative judgment in the context of constitutional rights adjudication.
We should be troubled by the power of judges to make normative judgments about contested social practices. But we should address that concern directly. An emphasis on the authority of legal reasons and on the role of legal expertise in constraining and guiding judicial decision-making responds to that concern. Moreover, it does so without falling into the Court’s denial of interpretive freedom and its embrace of the illusory constraint of history and tradition