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Will the Court use \u3ci\u3eDobbs\u3c/i\u3e to Overturn \u3ci\u3eSullivan\u3c/i\u3e? Revisiting the \u3ci\u3eSullivan\u3c/i\u3e Decision in the Age of Digital Media
Full text linkNew York Times Co. v. Sullivan is a landmark Supreme Court decision that significantly expanded protection for the press under the First Amendment by limiting public officials’ ability to sue for defamation. The ruling established the “actual malice” standard, requiring public officials to prove that defamatory statements were made with knowledge of their falsity or with reckless disregard for the truth. In recent years, Justice Thomas has repeatedly criticized Sullivan, arguing that the decision is more a product of judicial policymaking than of constitutional interpretation, with minimal grounding in the text or history of the First or Fourteenth Amendments. Other Justices have also raised concerns about the broad application of the actual malice standard to contexts beyond its original scope, including its extension to individuals who are not public officials. Justice Gorsuch, in particular, has voiced objections rooted in the modern media landscape. He contends that the rise of digital media has dramatically amplified the spread of misinformation, and the actual malice standard, as applied today, hinders efforts to hold individuals accountable for spreading false information. This, Gorsuch argues, undermines the public’s access to reliable information, threatening the democratic process. This Note delves into Justice Gorsuch’s critique, exploring how the digital era has reshaped the public square and examining the role of misinformation on social media in eroding democratic norms.
With several Justices expressing concerns about Sullivan, many observers have speculated that the Court’s reference to First Amendment jurisprudence in the Bruen decision signaled an intent to use history and tradition to revisit Sullivan and its progeny. The second part of this Note examines whether the Court is likely to overturn Sullivan by applying the stare decisis factors outlined in Dobbs, the same framework used to overturn Roe and Casey.
The third section of this Note evaluates the likelihood that the Court will revisit Sullivan. H.W. Perry identifies three key factors that are likely to influence the Court’s decision to overturn a precedent: (1) whether the case provides a suitable vehicle to advance the Court’s desired doctrinal direction; (2) whether there are enough votes to secure a decision on the merits; and (3) whether the issues with the actual malice standard are significant enough for the Court to feel compelled to overturn Sullivan and its extensions. Notably, the Court’s willingness to revisit Sullivan is unlikely to be deterred by its long-standing precedent, as the Court has recently overturned well-established decisions in areas such as abortion rights, affirmative action, and gun control. This trend underscores the influence of the Court’s conservative majority, which could grow even stronger. Consequently, if the Court were able to secure the votes to overturn Sullivan, the moment to act would likely be now
Originalism, Election Law, and Democratic Self-Government
Full text linkOriginalism has a democracy problem. Among prevailing theories of constitutional interpretation—pragmatism, common-law constitutionalism, popular constitutionalism, and Elysian representation-reinforcement—originalism uniquely creates a legal environment in which antidemocracy is viable. That is, it uniquely imperils democratic structures, practices, and norms that are essential to modern democratic self-government. This fundamental flaw is most apparent when considering the relationship between election law (a conspicuously non-originalist area of law) and originalism. Accordingly, this Article uses election law as a heuristic for illustrating one of originalism’s central deficiencies. It is the first extended treatment of election law and originalism—a topic of heightened salience following the Supreme Court’s originalist turn
The Clayton Act Cipher: Text as an Antitrust Strategy
Full text linkAs federal antitrust enforcement has adopted its most aggressive stance in decades, the fate of billions of dollars’ worth of economic activity rests on a few short statutory phrases enacted generations ago. The government officials who have proposed expanding antitrust enforcement have not justified their efforts through the difficult work of parsing the original meaning of these statutory texts. Nor have the targets of their scrutiny shielded themselves by asserting that statutory meaning. Instead, antitrust regulation and litigation have assumed that the text of these laws does not provide as clear or relevant a standard as do precedent, policy, and other concerns.
Rejecting that stance, this Article demonstrates the importance and practicality of antitrust textualism by engaging in the first dedicated interpretation of the Clayton Act of 1914, as amended by the Robinson-Patman Act of 1936 and Celler-Kefauver Act of 1950. These laws rest at the center of contemporary efforts to expand antitrust enforcement, especially merger policy. This Article shows that contemporaries of the Clayton Act would have originally recognized its terms as bearing a meaning similar to the foundational Sherman Act of 1890. This understanding becomes apparent when the language of the Clayton Act is juxtaposed with state statutes that employed the same or similar language. This Article then verifies that meaning by contextualizing the Clayton Act within its contemporary competition policy. Tracking the Act’s amendment further shows that, contrary to the prevailing interpretation based upon legislative history, the Robinson-Patman and Celler-Kefauver Acts did not significantly transform that original meaning.
This Article then demonstrates how to apply this textual detective work in practice. Placing the historical meaning of these statutes at the center of modern practice would not generate drastic upheavals in policy. At the same time, textual analysis remains critical to evaluating whether antitrust law permits the novel theories and initiatives of modern antitrust enforcers. This Article closes by illustrating how regulators and litigants can use the text to evaluate several core contemporary initiatives: replacing consumer welfare as the primary objective of antitrust law, resuming use of the Robinson-Patman Act to fight price discrimination, and expanding merger enforcement
Ethics & Independence in Trump’s War on Big Law
No full textIn his second term, President Donald Trump has launched an unprecedented assault on the nation\u27s largest law firms. Through a series of executive orders and highly unusual EEOC (Equal Employment Opportunity Commission) actions, the Trump regime has sought to undermine the independence of the private bar. In response, targeted firms have been forced to make a choice: to appease the administration or to fight back. This Essay considers those choices the interrelated nature of parallel settlements and suits-and the choice that the majority of firms have made to stay silent. We argue that Big Law\u27s independence is essential and that it is not too late for courage
Safeguarding the Safeguards: The ACA Litigation and the Extension of Indirect Protection to Nonfundamental Liberties
No full textAs the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the courts\u27 incorporation of substantive libertarian concerns into their structural federalism analyses. The breadth and depth of scholarly criticism is surprising, especially given that judges frequently choose indirect methods, including the structural and process-based methods at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirect protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed semisubstantive review and another theorized as judicial manipulation of legislative enactment costs. This Article situates the Commerce Clause and taxing power arguments that form the basis of the ACA litigation within the broader contexts of semisubstantive review and enactment cost manipulation, arguing that the application of these structural theories is an ordinary and effectual means of raising the political cost of libertarian infringements. The Article then considers three possible distinctions between the ACA case and the ordinary case of semisubstantive review and concludes that the only viable descriptive distinction is that the ACA case involves nonfundamental rather than fundamental liberty interests—the freedom of health and the freedom of contract. The Article argues that this distinction should not make a normative difference. If anything, the case for structural invalidation should be stronger when nonfundamental liberty interests are at stake because those are, by definition, the interests that the American legal system leaves to structural protection. If the Supreme Court invalidates the ACA on structural grounds, it can argue that it is merely safeguarding the safeguards of liberty
Toward an Understanding of Tax Complexity
No full textThe study of tax complexity has reached consensus on two things. First, complexity pervades the U.S. tax system. And second, it is not always clear what tax complexity means. Indeed, it is common practice for tax complexity scholarship to note the absence of a universal tax complexity definition and then conduct its inquiry without one. A universal definition of tax complexity has proven elusive because tax complexity means many different (although often related) things. This has made the tax policy analysis of complexity challenging. As an alternative to a definition, this Article proposes a framework with four elements for considering tax complexity—(1) an activity, (2) something that changes the ease with which that activity may be understood, (3) an effect on the person trying to understand that activity and (4) additional structure isolating the key tradeoffs and identifying what normative inputs are necessary to compare policy options. This Article demonstrates how much (if not all) of the tax complexity literature fits into this framework and how this framework may improve tax policy analysis. Ultimately, this framework facilitates clearer discussions of tax complexity and comparisons between tax systems in complex environments
Holding Social Media Providers Liable for Acts of Domestic Terrorism
No full textWould the availability of a federal cause of action for domestic terrorism increase the risk of social media providers being held liable for facilitating domestic terrorism? Recently, there have been discussions concerning the role social media plays in acts of domestic terrorism. Many acts of domestic terrorism have been linked to the perpetrator\u27s involvement with online groups who harbor similar goals. There are several legislative obstacles to successfully suing a social media provider for aiding an act of domestic terrorism. One obstacle is the Antiterrorism Act of 1990 (ATA), which provides a civil remedy for international terrorism but not domestic terrorism. There has been increased discussion about the federal government\u27s disparate treatment of domestic and foreign terrorism, with many scholars calling for the federal government to treat these acts equally. Another obstacle is the Communications Decency Act of 1996 (CDA), which shields social media providers from liability for content they did not create. Recent discussions and court decisions have indicated that changes to both the ATA and the CDA may be coming. If these threshold barriers were removed, the number of claims brought under the ATA would likely increase. Victims may attempt to sue social media providers for aiding domestic terrorism, but one of the biggest obstacles to a successful claim is proving proximate cause. This Note discusses the scientific basis for the connection between social media use and acts of domestic terrorism and analyzes whether this connection is strong enough to prove causation on the part of the social media provider
Containing the Blast Radius: Can Congress Save the Code from Realization?
No full textThe Supreme Court’s decision in Moore v. United States avoided enshrining realization as a constitutional requirement for taxing income. But four Justices were in favor of doing so, and the majority opinion explicitly avoided deciding the issue. Thus, it is quite plausible to imagine that a future case would garner five votes in favor of constitutionalizing realization. This Article addresses the question whether Congress can do anything preemptively to contain the “blast radius” of such an explosive decision and limit the ensuing “fiscal calamity.