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Two Justifications for the Major Questions Doctrine
Full text linkThere are two justifications for the major questions doctrine. The first justification, vigorously offered by Justice Neil Gorsuch, might be described as Lockean; it sees the doctrine as an effort to preserve legislative primacy and to reduce the policymaking authority of the executive branch. On the Lockean view, the major questions doctrine is a clear-statement principle, and it is in evident tension with textualism. The second justification, vigorously offered by Justice Amy Coney Barrett, might be described as Wittgensteinian; it sees the doctrine as an effort to capture Congress’s likely instructions. The Wittgensteinian justification fits comfortably with textualism, and it does not operate as a clear-statement principle at all. The Court can be seen as having adopted an incompletely theorized agreement in favor of the major questions doctrine, but at some point, the two justifications might lead in different directions. While neither justification is implausible, both of them run into serious objections
Hitting Back: Methods of Abolishing Corporal Punishment in the Florida School System
Full text linkThe use of corporal punishment against children has fallen more and more out of vogue in the past half-century as research has shown that the practice only harms children. But, despite that research and the growing public distaste for the practice, the use of corporal punishment in schools remains legal in eighteen states, including Florida. A fifty-year-old Supreme Court case, Ingraham v. Wright, upholds the legality of corporal punishment in schools. The Court has not revisited the topic despite changes in public attitudes and research and that it was confronted with the ability to revisit it as recently as 2021. In the 2017–2018 school year, about 70,000 students received corporal punishment in the United States. Although this is a small minority of the millions of students in the U.S. public school systems, this Note argues that even one instance of in-school corporal punishment is too many. After arguing that in-school corporal punishment should be abolished, this Note explores the federal precedent related to the practice. Finding the federal precedent lacking, this Note turns to the Florida constitution for answers. Finally, this Note calls on state legislators and citizens to enact new legislation or a constitutional amendment to abolish the practice
The Supreme Court in Modern Role (Carl Brent Swisher, 1958) and Justice Reed and the First Amendment (F. William O\u27Brien, S. J., 1958)
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Dormant Commerce Clause: Claiming the Future of Horse Racing
Full text linkThe Supreme Court described the principles of the dormant Commerce Clause first in Gibbons v. Ogden (1824), coined the doctrine’s name in Willson v. Black-Bird Creek Marsh Co. (1829), and revisited the doctrine after a lengthy period of “dormancy” in National Pork Producers Council v. Ross (2023). Over the nearly two centuries that the Supreme Court has handled dormant Commerce Clause matters, one aspect that stands out is the unique nature of the industries that give rise to claims. Thoroughbred horse racing, a sport older than the United States itself, is one such example. The Supreme Court previously denied certiorari on the question of whether state-imposed restrictions that prevent horses purchased in claiming races from competing outside the state for a specified period are constitutional. The constitutional question of the “claiming jail” depends upon a series of suits filed by long-time Thoroughbred owner Jerry Jamgotchian against several state horse racing governing bodies. Kentucky, the state renowned for Thoroughbred breeding and racing, stands contrary to California and Indiana, where similar claiming jail provisions have been struck down by the courts as unconstitutional under the dormant Commerce Clause. Additionally, there is a peculiar absence of legal challenges to “claiming jail” provisions in Florida, another state integral to horse racing. This Note highlights the divergence of state court rulings and silence from Florida courts. Furthermore, this Note argues why Florida’s renowned Gulfstream Park has evaded litigation and analyzes whether it will continue to do so in the future. In doing so, this Note contributes to the ongoing debate over state regulations and their intersection with interstate commerce in the horse racing industry
The Melodic Maze of Generative AI: Navigating Copyright and Publicity Protections
Full text linkThe rapid advancement of Artificial Intelligence (AI) in recent years has fundamentally altered the landscape of creative expression. Specifically, generative AI technology has revolutionized how we interact with information, art, and entertainment, blurring the lines between human creativity and machine-generated content. As AI-generated works proliferate across various domains, from visual arts to music composition, profound legal questions and ethical dilemmas have emerged. We currently find ourselves navigating a landscape filled with legal gray areas regarding protections and guidance for creators. As we grapple with whether existing laws can adequately address these revolutionary AI-driven innovations or if entirely new legal frameworks are needed, the complexities surrounding AI-generated content continue to grow. Ultimately, this Note contends that the use of data training to emulate specific artists in AI-generated music should be deemed not only as copyright infringement but also as a violation of individuals’ rights of publicity. This Note also aims to contribute to the ongoing discourse surrounding AI-generated content and to advocate for a more equitable and transparent framework that balances innovation with ethical considerations and respect for creative and personal rights
The Chilling Effects of \u3ci\u3eDobbs\u3c/i\u3e
Full text linkThe Supreme Court’s evisceration of the federal constitutional right to abortion has raised the specter of criminal and civil liability for abortion providers and patients. Police and prosecutors have easy access to commercial reservoirs of intimate data. As individual accounts made clear in the wake of the Dobbs v. Jackson Women’s Health Organization decision, corporate surveillance of intimate life chilled expressive activities, such as searching for information about reproductive health and using period tracking apps. Health professionals did not feel safe to speak out about the impact of new abortion laws. Harassment and threats directed at abortion clinics and at people seeking abortion services ensured their silence. Evidence of chilling effects was anecdotal, yet empirically unproven. That is no longer the case.
This Article describes the results of the first empirical study of post-Dobbs chilling effects. Our study explores how view counts for Wikipedia articles on period tracking apps and Google search terms related to period tracking apps decreased after the widespread media coverage of the new legal, privacy, and personal risks that the Dobbs decision created for period tracking app users. This Article sets forth our study design, explores the results, and discusses the implications for lawmakers, courts, and advocates. Lawmakers can rely on our study to show that people are being deterred from accessing crucial information that could help them better understand their reproductive health. Privacy law enforcers can leverage our findings to show proof of harm for privacy violations and to show standing. This study goes a long way to providing the proof needed to justify strong intimate privacy protections
The Big Cost of Small Farms
Full text linkAmericans love meat. We celebrate our independence with steaks on the grill, we enjoy our favorite pastime with hot dogs, and we give thanks with turkey. Our love of meat is so ingrained in our culture that, historically, small increases in meat prices have driven the populace to riot. Today, meat prices are rising. Simultaneously, the largest meat processors and packagers are seeing record profits. Consumers, in turn, are outraged. Their emotions are being fueled by politicians who blame rising profits on a pandemic of greed and collusion and then argue that rigid antitrust enforcement is the only solution.
This account, however, relies on several false premises. While antitrust is thought to provide consumers with more choice, lower prices, and better quality, that expectation is not true in every arena. In the context of food and agriculture generally, and meat specifically, antitrust enforcement is more likely to raise food prices, limit cheap food options for poor people, and exacerbate problems of hunger and poor nutrition. In reality, the group most likely to benefit from such enforcement is small farmers, as was intended. Antitrust, as applied to meat, is thus both regressive and protectionist, sacrificing food accessibility in favor of protecting small farms.
This Article, The Big Cost of Small Farms, addresses the origin of this antitrust narrative and explores its harmful outcomes, using a consumer-centered approach to make the normative argument that the politicization of food production has always been and continues to be dangerous, resulting in disparate harms to poor people. Only in dispensing with the overreliance on antitrust enforcement will the poorest among us retain the option to buy cheap meat, an American staple. In this way, this Article serves as a necessary corrective to the current antitrust movement, which sees corporate bigness—without more nuanced consideration—as a curse