Supreme Court

For decades, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates an “informal system of censorship.” Lower courts have been deeply divided about what kinds of government actions create this kind of informal system. The Court’s recent NRA v. Vullo decision holds that officials engage in informal censorship whenever they intentionally use informal power to evade First Amendment constraints on their formal powers. Vullo clarified that the rule against informal censorship is categorical: officials may never evade constitutional constraints by threatening harm or promising benefits to private parties, no matter how they attempt to do so. This Article argues that the Court's reaffirmation of the categorical nature of the First Amendment rule against informal censorship is very good and comes at a critical time. The Article examines the doctrine prior to the decision, the significance of Vullo’s intervention, and its implications.

Multiple circuits have extended quasi-judicial immunity to sheriffs, marshals, and bailiffs when they execute judicial orders, including—in some circuits—when they use excessive force. This Comment argues that the extension of quasi-judicial immunity to enforcement officers is inconsistent with the Supreme Court’s absolute immunity doctrine. A survey of the Court’s absolute immunity cases reveals four considerations guiding those determinations. Enforcement officers do not meet any of those considerations. This Comment proposes a simple rule to correct for this doctrinal inconsistency: absolute immunity for deliberative functions and qualified immunity for enforcement functions.

The widely understood alignment between political ideology and legal methodology—conservativism and constraint versus liberalism and discretion—explains judicial behavior with diminishing accuracy. In this Essay, Richard M. Re describes a "legal realignment" comprising moves toward conservative discretion and liberal constraint at the U.S. Supreme Court. The Essay develops a model of ideological change at the Court by describing the tendency for governing coalitions and opposition parties to embrace discretion and constraint, respectively. The Essay continues by detailing the mechanisms through which individuals and generations of legal thinkers undergo ideological shifts before concluding with what the model portends for the U.S. judiciary.

Professor Stephanie Hall Barclay proposes and defends a new theoretical model of constitutional rights. While virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights and generally hold out the judiciary as the primary guardian of these rights, this Article explains why the existing accounts of constitutional rights are either incoherent or incomplete. It proposes and defends an alternative model that is more consistent with democratic principles and the institutional competencies of the various branches of government.

This Comment uses the case study of guns-at-work laws to understand Cedar Point v. Hassid’s per se takings rule as well as its exceptions. Enacted by about half of the States, guns-at-work laws protect the right of a business’s employees, customers, and invitees to store firearms in private vehicles even if those private vehicles are on company property (i.e. parking lots/parking structures). While these laws have long survived Takings Clause challenges, Cedar Point revived the viability of such challenges. Using the example of guns-at-work laws, the Comment seeks both to understand the scope of Cedar Point’s per se takings rule and to clarify and develop the open-to-the-public and long-standing restrictions on property rights exceptions to it.