Legal Scholarship Repository (University of Tennessee College of Law)
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The Necessary Opportunism of the Common Law First Amendment
No full textThe First Amendment historically has been interpreted to provide greater and greater protection to more and more forms of expression. The notion of an originalist First Amendment has never commanded a majority of the Supreme Court and is unlikely to do so. Instead the development of the First Amendment has followed a common law trajectory. As the reach of its protections expands, so to do its attractiveness for arguments that may be more accurately located elsewhere in the Constitution\u27s text. Such opportunism is a predictable, even necessary consequence of the First Amendment\u27s common law development, and the Supreme Court tacitly endorses such opportunism by consistently declining to issue saving constructions to laws that implicate the First Amendment. While both Justice Thomas and Justice Alito have recently offered anti-opportunism readings of the First Amendment, neither is likely to garner a majority. The common law First Amendment-and the opportunistic use of it-will continue apace
OK, Computer: Harnessing AI in Contracts to Change How Our Students Will Practice and How We Will Teach
No full text
Innovation Misunderstood
No full textInnovation is transformative and key to future prosperity. It is therefore of no surprise that antitrust laws seek to promote it. What is surprising, however, is that despite the central role that innovation occupies in competition cases, its actual treatment by the courts is far from nuanced.
In this paper, we reflect on the D.C. Circuit’s 2023 ruling in N.Y. v Meta to illustrate the prevailing monocular vision adopted by the court in its treatment of innovation. That vision, we argue, reflects simplistic assumptions as to innovation dynamics and mistaken beliefs about the digital economy. It is further compounded by jurisprudential problems that characterize U.S. antitrust laws.
The result is troublesome. While “everyone talks about innovation,” the courts do little to inquire about its scope, nature, and value. Nor do courts recognize the impact of anticompetitive strategies deployed by the dominant platforms on disruptive innovations and their heterogeneity
