Vol. LII No. 3

Viewpoint Neutrality and Government Speech

Abstract: Government speech creates a paradox at the heart of the First Amendment. To satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense […]

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Who May Be Held? Military Detention Through the Habeas Lens

Abstract: We lack consensus regarding who lawfully may be held in military custody in the contexts that matter most to U.S. national security today—i.e., counterterrorism and counterinsurgency. More to the point, federal judges lack consensus on this question. They have grappled with it periodically since 2002, and for the past three years have dealt with […]

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The Roberts Court and the Limits of Antitrust

Abstract: Numerous commentators have characterized the Roberts Court’s antitrust decisions as radical departures that betray a pro-business, anti-consumer bias. That characterization is inaccurate. Although some of the decisions do represent significant changes from past practice, the “pro-business/anti-consumer” characterization fails to appreciate the fundamental limits of antitrust, a body of law that requires judges and juries […]

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The First Amendment in Trans-Border Perspective: Toward a More Cosmopolitan Orientation

Abstract: This Article examines the First Amendment’s critical trans-border dimension—its application to speech, association, press, and religious activities that cross or occur beyond territorial borders. Judicial and scholarly analysis of this aspect of the First Amendment has been limited, at least as compared to consideration of more domestic or purely local concerns. This Article identifies […]

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Show Me the Money: Public Access and Accountability After Citizens United

Abstract: The U.S. Supreme Court’s 2010 decision in Citizens United v. FEC has been called both a broadside assault on democracy and a victory for free speech. Both extremes exaggerate the importance of the case. On the one hand, the case denied Congress’s ongoing attempt to curtail corporate domination of elections. On the other hand, […]

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Simplifying State Standing: The Role of Sovereign Interests in Future Climate Litigation

Abstract: As Congress has yet to enact a comprehensive legislative framework to address climate change, environmental advocates have increasingly turned to the judiciary to push for the regulation of greenhouse gas emissions. Some lawsuits have been brought against the federal government, but others have been brought against private entities under common law causes of action. […]

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Sundown and You Better Take Care: Why Sunset Provisions Harm the Renewable Energy Industry and Violate Tax Principles

Abstract: The production tax credit (“PTC”) is the primary government incentive to promote renewable energy. In fact the PTC is necessary to make renewable energy cost competitive, to account for positive externalities, and to encourage private investment. These tax credits, however, are often subject to “sunset” or expiration dates, a trend in tax legislation. As […]

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