Judicial Ethics, the Supreme Court, and the Rule of Law

Charles Gardner Geyh

It’s a great time to be alive for a judicial ethicist. There aren’t very many of us. We tend to tag along in the shadow of the lawyer ethics people—the cool kids in the schoolyard. Pimply and off-putting though we may be, we have a particular set of skills that, thanks to the Supreme Court and its recent shenanigans, have suddenly acquired relevance as judicial misconduct has been thrust into the national spotlight. So don’t step on my moment. I want to make the most of it. (more…)

Intermediation Effects in Litigation Finance

Adrian Ivashkiv

Litigation finance now bankrolls some of the highest-profile lawsuits, attracting both attention and controversy. Because this new market facilitates lawsuits, it might serve either to promote access to justice or to facilitate frivolous, speculative litigation. This Article offers two insights for that ongoing debate. First, it argues that the market for investable lawsuits may be much smaller than is often imagined, muting its social impact in either direction. Second, it provides new reasons to think that, to the degree that litigation finance facilitates new lawsuits, those suits are unlikely to be frivolous. (more…)

County Government Unbounded

DANIEL B. ROSENBAUM

County governments occupy an awkward dual position in the sub-federal system. They are both local governments (democratic bodies, akin to cities and towns) and state agents (administrative units of state government, akin to departments and agencies). Neither role seems to suit counties particularly well. When acting as local democratic bodies, counties are constrained by state law and severely under-resourced, especially in contrast with municipal governments in their midst. As administrative agents of the state, moreover, counties are saddled with a cascade of responsibilities that the state has delegated to the regional level, duties they must perform without the same support afforded prototypal state agencies. A county’s dissimilar roles thus share one unifying theme. On paper, as the slim legal literature on county governments has observed, counties are passive, static, and relatively powerless actors in both their local and state manifestations. (more…)

Do Linguistic Canons Matter?

BENJAMIN MINHAO CHEN

For a long time, linguistic canons have been dismissed as dissonant and deficient. But there are ambitions to make linguistic canons guide again. Maxim majoritarianism promises to dissolve opposing canons through the elimination of unsupported pretenders. By empirically identifying the canons that register dominant habits of speech, contemporary jurists hope to bring order to the practice of statutory interpretation.

This Article submits that maxim majoritarianism is futile. It argues that arbitrating between rival canons poses conceptual difficulties that are virtually impossible to resolve. At the same time, it maintains that the co-existence of canon and counter-canon is not necessarily embarrassing. Like practical proverbs, linguistic canons can—and can only—matter if they change beliefs, judgments, and actions—that is, if they are efficacious.

So, do linguistic canons matter? An original experiment tests the efficacy of four classic canons on over 1,500 everyday speakers of English. The last antecedent rule, noscitur a sociis, did not seem to influence how participants construed ambiguous text whereas expressio unius did. These results might be interpreted as further proof of the hollowness of linguistic canons. Yet they also leave open the possibility that linguistic canons can, by signaling avenues of further inquiry, cast fresh light on the ordinary meaning of the law.

The Aftermath of the Supreme Court’s Purdue Pharma Decision

MEGAN DALTON DOYLE

2024 Supreme Court decision, Harrington v. Purdue Pharma, resolved a decades-long Circuit split regarding nonconsensual nondebtor releases in Chapter 11 bankruptcy cases. On nonpartisan lines, the Court held that Purdue Pharma’s bankruptcy plan could not include a provision releasing the Sackler brothers from the claims pending against them. In doing so, it expressly disallowed nonconsensual nondebtor releases in any Chapter 11 bankruptcy. However, the Court left open an important question: What qualifies as a nonconsensual nondebtor release?

In the months that followed, bankruptcy courts started to promulgate differing opinions regarding such consensual releases. This Note aims to determine what the best next steps are in light of the Supreme Court’s decision. Part I briefly discusses a background on Chapter 11 and the Circuit split regarding nonconsensual nondebtor releases. Part II analyzes the Supreme Court’s Purdue Pharma decision and the unique circumstances surrounding the case. Part III highlights a few lower court decisions of note which occurred in the months immediately following the Purdue Pharma decision. These cases illuminate two different ways to determine “consent” in the context of Chapter 11 bankruptcies: “opt-in” or “opt-out” releases. Finally, Part IV weighs the benefits and disadvantages of “opt-in” and “opt-out” releases and ultimately concludes that such decisions are best left to the Legislature.

Disinherited by the State? Civil Asset Forfeiture and Successors’ Rights in Connecticut

Antonella Portugal

Civil asset forfeiture (CAF) allows the government to seize property suspected of being connected to criminal activity, often before any criminal conviction is secured. This Note examines the scope of CAF laws in Connecticut, with the aim of ascertaining what rights, if any, successors have to reclaim property seized but not yet forfeited at the time of the owner’s death. Tracing the legislative history and judicial interpretation of CAF in Connecticut, I synthesize the current legal landscape as to the rights of claimants in forfeiture proceedings. While Connecticut has taken steps to reform its CAF statutes and the courts have addressed key constitutional challenges, I argue that the current CAF regime insufficiently protects successors’ rights and exacerbates systemic inequities. CAF disproportionately impacts race–class subjugated communities, particularly within the context of the War on Drugs and federal equitable sharing programs. Connecticut lawmakers should look toward addressing these key social issues by moving away from CAF proceedings, protecting the rights of innocent heirs, and eliminating the financial incentives in CAF practice that perpetuate inequity.

Misjudging a Reasonable Jury: Evidence That Courts Dismiss Meritorious Harassment Claims

ELIZABETH C. TIPPETT & JAMILLAH BOWMAN WILLIAMS

Courts assessing summary judgment motions in Title VII harassment claims commonly grant the motion on the basis that the alleged harassment is insufficiently “severe or pervasive” to meet the legal standard. This mixed-methods study empirically tests whether there is a gap between how judges and potential jurors assess the same set of facts on the severe or pervasive element of a Title VII harassment claim. We presented study participants with facts from 80 federal harassment cases. In each case, the defendant employer moved to dismiss the case, arguing that no reasonable jury would find the alleged harassment sufficiently severe or pervasive to meet the legal threshold. We provided the participants with relevant jury instructions and asked them to: (1) rate the severity or pervasiveness of the alleged harassment; (2) assess whether the plaintiff met the legal standard; and (3) discuss their reasoning.

Our results suggest a substantial divergence between judicial assessments and simulated jury assessments of the sampled cases. Judges granted summary judgment in favor of the employer or dismissed 65% of the harassment cases in the sample. By contrast, our simulated juries would have dismissed less than 20% of the very same cases. Both our quantitative and qualitative findings shed light on the source of this divergence. The difference in assessment is not due to demographic differences between judges and the mock jurors, nor is it caused by shifting judicial assessments over time. Our qualitative results indicate laypeople tend to view the fact patterns in a much more holistic manner than judges, which is consistent with guidance established by the Supreme Court. In addition, our quantitative analysis suggests courts may be selectively discounting the severity or pervasiveness of cases alleging intersectional harassment based on more than one protected characteristic. Going forward, we recommend that courts exercise far greater caution in evaluating harassment claims on summary judgment. Courts should also allow intersectional claims to be pled as a single cause of action.

What We Are Owed

REBECCA E. WOLITZ

Historically, the United States has been the largest public funder of biomedical innovation in the world, yet public contributions to drug research and development (“R&D”) often fail to translate into affordable medications. The Inflation Reduction Act presents an opportunity to reconsider the relationship between public funding and public returns by requiring the consideration of federal funding as a factor in the Medicare Drug Price Negotiation Program (“MDPNP”). However, neither the statute nor agency guidance articulate clear normative principles for what the public is owed based on our contributions to drug R&D. This Article makes two key contributions. First, it offers an original scholarly analysis of the MDPNP’s “prior Federal financial support” factor, critically examining the program’s treatment of federal funding in fair drug pricing. Second, it valuates a range of fairness principles and argues that policymakers should adopt a principle of proportionality as the default for allocating benefits from public contributions to drug R&D. By establishing a default in favor of proportional fairness, this approach ensures that public returns are meaningfully aligned with public contributions, flexibility is maintained to protect biomedical innovation, public confidence in institutions can be bolstered, and what we—the public—are owed is better secured. This Article charts a path toward a more equitable and accountable recognition of public contributions to privatized medical innovations within existing agency authority.

A Citizenship Model of the Fourth Amendment

DANIELI EVANS

Fourth Amendment law is in disarray. In recent years, courts and scholars have questioned central aspects of Fourth Amendment doctrine—in particular, the reasonable expectations of privacy test that has governed since the 1960s. Scholars and judges have argued for abandoning this test and instead looking to private law (sub-constitutional rules governing private conduct, such as tort, property, and contract law) to determine Fourth Amendment protection.

At a moment when judges and scholars are questioning core aspects of Fourth Amendment doctrine, the time is ripe to reconsider the values Fourth Amendment law ought to serve. I advance a novel vision for Fourth Amendment law, centered not around privacy or private law, but around the value of democratic citizenship. I argue that the prevailing Fourth Amendment rules and proposed private law alternatives are both deficient in one important respect: they both fail to recognize and address the ways in which policing impacts democratic citizenship. A large body of social science research shows that coercive encounters with police tend to diminish people’s trust in government, sense of citizenship, and political participation. These citizenship harms, I argue, ought to be a central concern for Fourth Amendment law. This is necessary to realize the Fourteenth Amendment’s guarantee of full and equal citizenship.

Under a citizenship model, when deciding whether an action is an unreasonable search or seizure, courts would consider what the action conveys about the subject’s belonging and standing in the community. To evaluate this, courts would ask how the action comports with values associated with democratic citizenship, such as participation, autonomy, anti-subordination, and proportionality.

I Do Not to Un-Do: The Constitutionality of Voluntary Limits on Marital Exit

KARIN CARMIT YEFET

American divorce law in the twenty-first century stands on the brink of a troubling paradigmatic shift. States have begun to experiment anew with divorce-restrictive regimes, most prominently covenant marriage. This singular antidivorce mechanism—the first of its kind worldwide—establishes an optional marital framework in which exit is severely constrained. Despite a voluminous literature examining covenant marriage through sociological, theological, policy, and legal lenses, its constitutional validity has been all but ignored. This Article argues that marital freedom is an unenumerated fundamental right within the American constitutional edifice and explores the implications of that right for this novel divorce regime. It pioneers the constitutional analysis of exit barriers—whether imposed by covenant legislation or contractual stipulation—and finds them indefensible. It then confronts covenant marriage’s most radical innovation: the purported permissibility of voluntary limits on marital exit. Grounded in theories of inalienability, the Article establishes that the core right to divorce lies beyond the reach of waiver and concludes that this recognition calls into question the very legitimacy of the covenant marriage regime.

Pimps, Priors, and Propensity

BRYAN SCHWARTZ

Sex trafficking is the “fastest-growing business of organized crime” and “the third-largest criminal enterprise in the world,” with the number of cases in the United States steadily increasing over the last two decades. In fact, sex trafficking recently took center stage when rap singer and music producer Sean “Diddy” Combs was arrested and charged, in part, with sex trafficking. Relevant to this Article, the lawyers for both sides brought forth motions challenging the admissibly of character evidence under both Federal Rule of Evidence 404(b) and 413.

In the context of sex trafficking, this Article builds on the existing scholarship analyzing character evidence, particularly Rule 404(b). Notably, sex trafficking often follows a typical framework, which this Article lays out in three parts: Victim Selection, the Grooming Process, and the method of Operation. These parts also contribute to complex dynamics between the offender and the victim, which greatly impact the investigation and prosecution of these cases. Importantly, as this Article sets forth, courts do not appear to be uniformly aware of this framework,
particularly when evaluating character evidence. Thus, this Article sets forth a sex trafficking framework to be used by courts, lawyers, and lawmakers, which will result in improved consistency and predictability when evaluating the admissibility of character evidence.

Additionally, this Article also aims to start the controversial conversation of whether propensity evidence should be admissible in sex trafficking cases, such as by expanding Rules 413, 414, and 415 (“the propensity rules”). While additional contributions are necessary to answer this question, this Article lays the initial foundation by setting forth the scholarly debate surrounding propensity evidence, focusing on the important concerns that propensity evidence inherently possesses, balanced against recent studies relying on forensic psychology theory suggesting
its evidentiary value in sex trafficking cases.

“Chipping Away” at Chip Smith: Reforming Anti- Deadlock Instructions

SAMANTHA G. CRONE

A jury “hangs” or results in impasse or deadlock when the jury cannot reach a unanimous verdict. This results in the judge declaring a mistrial, where the double jeopardy bar is lifted in criminal trials, and the defendant may be retried. Oftentimes, jury deadlock results from a majority voting block who cannot sway a lone dissenter, also known as the “holdout juror.” When faced with the potential of deadlock, judges across the country routinely administer an impasse charge, commonly known as a “Dynamite Charge,” for its ability to blast a jury out of deadlock and into a unanimous verdict.

With the United States Supreme Court silent on the charge in recent years, some jurisdictions have abandoned the charge altogether or reformed the language of the charge administered to omit coercive language of “minority” and “majority” or “dissenting” jurors. Connecticut’s “Chip Smith” Charge has been consistently upheld by the Connecticut Supreme Court and is considered settled jurisprudence. Despite many criminal defendants arguing to end the practice of administering the charge, the court has declined to do so. Though the state’s courts have, in recent
years, altered the language of the model charge to include “balancing principles” to counteract the language targeting “dissenting” jurors, judicial discretion looms large in this area, and there are few checks on a trial judge’s ability to tell dissenting jurors to reconsider their view. Because the demise of Chip Smith is highly unlikely, this Comment argues instead that Connecticut should take a more middle ground approach and constrain judicial discretion in this area by limiting the number of times the charge may be read to a jury, eliminating the pressure placed on dissent,
and establishing a higher degree of judicial scrutiny when a trial judge strays from approved language. These changes will help protect a criminal defendant’s due process right to an uncoerced jury verdict.

What’s the Gig? Exploring the Scope of Employment Among Gig Economy Workers

IAN A. RUSSELL

Work is a universal human experience, but the nature of work and the relationships between workers and employers have changed dramatically in recent years, thanks in large part to the rise of the “gig economy.” Gig workers on platforms like Uber, Lyft, DoorDash, Grubhub, and many others enjoy a degree of flexibility and autonomy, but that same autonomy helps to shield their employers from legal liability when workers cause harm to others.

This Comment explores the doctrine of respondeat superior and specifically the “control test” in the context of the gig economy. Because gig work is not bound by specific time and space requirements in the same way as traditional employment, and because gig workers often have multiple “gigs” simultaneously, it is often difficult to determine whether a tort is committed within the scope of employment. This Comment proposes using the “scope of the gig” as the key to unlock vicarious liability: if the worker’s intent was, at least in part, to complete the gig, then the gig
employer can be held legally responsible for the harm caused.

What Does the Declaration of Independence Declare?

STEVEN WILF

What does the Declaration of Independence declare? The simplest answer is that it constituted the United States as an independent sovereign nation. This brief Essay will take a different approach, focusing less on establishing sovereignty and
more on its fashioning the bonds of association that stand independent of legal governance.

One goal of this Essay, on the eve of its 250th anniversary, is to reinvigorate the meaning of the Declaration of Independence. If the Declaration was less significant as a legal instrument declaring sovereignty, then we must be even more
determined in understanding its meaning. How does one read a document in a fresh fashion when it has been scrutinized for so many years? Over time, documents become dusty, overly familiar, and, perhaps worst of all, sacrosanct. No doubt this
is true of the Declaration of Independence—which is often paired with the Federalist Papers as canonized handmaids to the Constitution. This ever-so-brief Essay aims to constitute ourselves as a new, unexpected audience for the text.

This Essay sees the Declaration as an untidy pastiche, a bricolage that is directed to any number of contemporary listeners; with its multiple audiences, shifting rhetorical styles, and different genres, the Declaration of Independence must be seen as a multivocal text. It also argues that the Declaration’s crescendo lies at the end, not the famous lines at the beginning, of the document. All the seemingly unrelated grievances are wrapped around a fundamental shift where it is not a new state that is founded, but rather it is an assumption of mutual duties among Americans that leads to a new social order—if not a new regime—and that this has binding force, as does any legal promise.

Stress and Prosecutorial Discretion

JANE MITCHELL

Prosecutors wield enormous influence—and yet the factors guiding their choices remain largely unknown. Scholars have long considered the inner workings of prosecutorial discretion a “black box.”

This study seeks to remedy that gap by applying a discovery-based qualitative methodology to study prosecutorial discretion. Relying on fourteen in-depth interviews with prosecutors,* this study identifies an influence on prosecutorial discretion
previously unaccounted for in the literature: stress. Prosecutors’ stress responses directly impact their decision-making and performance, for better or for worse.

Prosecutors’ stress responses align with the principles of cognitive appraisal theory. According to this psychological theory, people “appraise” stressful situations as either “challenges” or “threats.” Each mental state triggers a distinctive set of
cognitive, emotional, and physical responses. Challenge states improve performance and thinking. Threat states impair performance and decision-making.

The interview data demonstrates that prosecutors face a relentless stream of stressors at work. The way prosecutors respond to those stressors carries profound implications for criminal justice. Prosecutors operating in challenge states benefit
from sharper decision-making and improved performance. Prosecutors in threat states, on the other hand, are more prone to negative bias, mistakes, abrasive behavior, and burnout. This has particular relevance for trial work, which prosecutors report being the most stressful part of their job: threat states predispose prosecutors to plead cases instead of going to trial.

While stress responses occur at an individual level, much can be done at an organizational level to promote challenge instead of threat. The Article concludes with structural recommendations for facilitating challenge states.

Probabilistic Tort Law: Extending the Loss-of-Chance Doctrine’s Partial-Damages Framework to All Tort Cases (and Beyond)

MICHAEL PRESSMAN

Tort law’s loss-of-chance doctrine (“LOCD”) is employed in many jurisdictions to resolve a problem arising in certain medical malpractice cases. In the paradigmatic case, the patient presents with a greater-than-50% chance of dying from a condition, the doctor’s negligence increases that chance, and the patient dies. Traditionally, the plaintiff would never recover because he cannot show by a preponderance that he would have survived absent the negligence. The LOCD, however, allows for partial damages reflecting the portion of the risk attributable to the negligence. As most commentators agree, the LOCD furthers both fairness and efficiency, and all jurisdictions should employ it.

But this Article argues that we should go much further. The rationales underlying the LOCD apply not only in the typical LOCD context, but in all tort cases. Accordingly, this Article advocates for two reforms: first, employing the LOCD not only in medical malpractice cases that call for its use, but also in cases raising relevantly similar issues in any other area of tort (most notably, in toxic torts and products liability); and second, employing LOCD-like partial damages to take into account underlying risk even in cases in which the underlying risk is not large enough to create the insurmountable hurdle. The first reform increases recoveries (awarding partial damages instead of no damages); the second decreases recoveries (awarding partial damages instead of full damages).

These proposals are important for three reasons: First: Both further both fairness and efficiency, and their practical effects are significant for parties affected by them. Second: Although the general rationale for the LOCD is clear, and despite commentators agreeing that it should be limited to typical LOCD cases, there is no plausible account of (or consensus on) why it should be limited to these cases—which is why many courts have rejected the LOCD. This Article solves this problem: Not only do we not need to limit the LOCD, but we should not. Accordingly, this Article provides a broad foundational account of the LOCD that, unlike past accounts, is plausible—thus also providing reasons for courts to employ it even in typical LOCD cases. Third: While the Article’s reforms constitute a crucial step for tort doctrine in taking chance seriously, they will also serve as a blueprint for analogous reforms in other areas of the law.

Requiring Written Bail Determinations

MICHAEL L. SMITH

Many states’ laws governing bail and pretrial release give the impression that courts think through a myriad of factors when deciding whether to set bail. But things often don’t work out this way in practice. Judicial officers setting bail carry out assembly-line-style, truncated hearings which often result in the imposition of bail in accordance with predetermined offense-based schedules. As a result, many defendants are ordered incarcerated pending further proceedings solely because they are unable to pay. Many of these defendants then plead guilty out of a desire to avoid remaining in jail pending trial.

This Article makes a straightforward proposal: written justifications should be required for all bail and pretrial release rulings that do not order defendants released on their own recognizance. By forcing courts to commit to writing the reasons behind their rulings, this reform pushes them to engage with the relevant laws governing bail and the circumstances of the defendants before them. It also increases the legitimacy of a system that badly needs it by creating a record of explanations for pretrial release determinations and acknowledging the need to spend time on these serious proceedings.

Critics are likely to paint this proposal as hopelessly impractical. Courts address millions of criminal cases each year, and requiring written rulings on pretrial release in many of them is a substantial burden. But this is not a problem with the proposal. Instead, this objection derives its force from a system that prosecutes more people than it possibly can while complying with minimal standards of due process and reasoned justifications. Requiring written bail determinations simply surfaces this defect. But, in doing so, the reform acts to oppose existing incentives that perpetuate overenforcement and oppressive prosecution. Alongside alternate reform measures, requiring written bail justifications is a step toward aligning pretrial release practices with the law on the books, and reducing the harms it causes to defendants, their families, and the rest of society.

How to Manage the Wolf in the Fold: A Government-Focused Approach to Regulatory Capture in the Platform Economy Comparing California with British Columbia

SUSAN BISOM-RAPP & URWANA COIQUAUD

Scholarly work on regulatory capture in the platform economy accounts for the political role and power wielded by app-based firms, which aim to reform the existing legal environment to favor their low-cost labor business models. This Article adds to the literature by shifting the focus to government actors, the role of narrative in communicating with the public, and institutional constraints which may hamper the government’s ability to provide a cogent rationale for opposing or implementing legal change. The Article’s central contribution is underscoring the government’s role in facilitating or preventing regulatory capture. To that end, it illuminates the state’s capacity for de-standardizing work—making work more precarious and insecure for workers—or preventing the degradation of workers and working conditions. The Article compares two North American jurisdictions considered pro-worker—California (US) and British Columbia (CA) – and examines government reactions to the regulatory challenges posed by app-based transportation and delivery firms.

The authors first introduce a typology of government functions and tools that can either stabilize or weaken labor standards. Two theoretical lenses then assist in interrogating government actions and regulatory outcomes: 1) discursive institutionalism, which highlights the role and power of ideas and institutions in public policy creation; and 2) decent work, the human rights concept emphasizing, among other things, the promotion of fair wages, safe and healthy working conditions, and the right to organize and bargain collectively. Despite confronting similar regulatory challenges, the study discerns significant differences in government actions, communication, and regulatory outcomes in California and British Columbia. Regarding app-based workers, the latter is moving towards recognizing decent work while the former drifts away from it. These findings underscore the government’s pivotal role in protecting or undermining decent work, an important insight as platform firms test the resilience of existing labor standards around the world.

A ‘Slippery Business’: The Fact-Law Distinction in Authorship & the Echo of Loper Bright

NADAV BATTAT

This Note explores whether authorship in copyright law constitutes a question of fact, law, or a mixed inquiry. In the wake of rapid developments in generative artificial intelligence and a sharp doctrinal shift in administrative law, this inquiry has become increasingly consequential. The classification determines not only who decides the issue—judge, jury, or agency—but also whether courts must defer to the Copyright Office’s determinations. In the post-Loper Bright v. Raimondo landscape, where Chevron deference has been eliminated, these questions take on new procedural and doctrinal weight.

The Note argues that authorship determinations should be treated as mixed questions of law and fact predominated by law. This framework allows courts to consider factual underpinnings concerning the degree of human contribution while reserving the ultimate question of law for judicial resolution. Such an approach promotes accuracy in adjudication, flexibility in application, and consistency in doctrine—ensuring that authorship, a foundational yet slippery concept, remains subject to coherent judicial oversight as generative technologies continue to reshape creative processes. Drawing on fair use, originality, and analogues from
patent law, this approach situates the authorship issue within a tradition of hybrid typologies in intellectual property.

Allen v. Perlmutter, a pending case involving the denial of copyright protection for an AI-assisted image, may serve as the progenitor of a new interpretive lineage. It forces courts to confront not only the factual complexity of human input and the unsettled legal boundaries of authorship in the age of AI, but also the threshold question of how authorship should be classified—as a question of fact, law, or both.

Jawbreaking and Counterboning

BLAKE E. REID

FCC Chairman Brendan Carr’s public campaign of unlawful threats against television broadcasters, culminating in the high-profile preemption and later return to air of late-night host Jimmy Kimmel, provides an important natural experiment for the law of jawboning. The Kimmel-Carr episode highlights the challenges of legal remedies against government officials over even the most flagrantly coercive, unlawful, and public jawbones. It also highlights the importance of intermediaries refusing to comply with unlawful demands—what this Essay calls jawbreaking.

Using the Kimmel-Carr episode as a case study, this Essay proposes moving beyond voluntary incentives for jawbreaking to impose a mandatory duty to jawbreak on speech intermediaries. The duty counteracts the risk of retaliation for intermediaries resisting unlawful threats with an equal or greater risk of future consequences for intermediaries knuckling under—such as the loss of a broadcast license. In turn, it proposes circumventing the political barriers that hamper most jawboning reforms by way of counterboning: bootstrapping the duty to jawbreak with warnings of future consequences under an extant statute such as the Communications Act. In doing so, it contemplates navigating the traps of jawboning law—including the jawboner’s (and the knuckler’s) dividend.

Finally, it considers the unexpected lessons of the Kimmel-Carr episode for debates over jawboning and Internet intermediaries. It highlights how the exceptional treatment of broadcasters under the Communications Act’s public interest standard and Internet intermediaries under Section 230 can leave both vulnerable to jawboning. And it considers what broadcast and Internet exceptionalism might have to teach each other about synthesizing jawbreaking.

Media Ownership, Newsroom Independence, and President Trump’s War on the Press

LILI LEVI

Media ownership is now both directly and indirectly at the center of the Trump Administration’s press-control strategy. With the deployment of censorship efforts and lawsuits aimed at press owners critical of the President, the regulatory activities of a Trump-aligned Federal Communications Commission (FCC), the grant of benefits to politically partisan, pro-Trump media owners, the defunding of public media, the adoption of multiple hurdles to independent newsgathering, and the involvement of the President in the joint venture to spin off an American TikTok, the Trump Administration has been systematically engaging in a multi-pronged scheme of press control by proxy, focused on ownership.

Today’s media ecosystem is complex, with news outlets reflecting a range of ownership patterns with varying characteristics, legal rules, and owner incentives. In theory, such a mix could generate a range of owner responses to government pressure. However, if the Administration strategically continues to tailor governmental sticks and carrots to the characteristics and vulnerabilities of the various forms of ownership—and particularly while permitting increased media consolidation—it is realistic to expect more capitulation than resistance from media owners in response.

Although there is no way to insulate the press completely from the threat of ownership-focused control, this Essay makes five recommendations to reduce the press function’s exposure to proxy censorship: (1) exacting scrutiny of proposed media mergers and acquisitions from the vantage point of their impact on concentration in the market for news production; (2) constraints on FCC Chairman Carr’s sweeping and politicized expansions of Commission intrusions into content; (3) rejection of proposed expansions of corporate boards’ fiduciary duties of oversight to news units; (4) a skeptical review of the statutory compliance of the new TikTok USDS Joint Venture LLC; and (5) development of funding models that would materially promote the work of journalistically-trained independent “evidence-based creators.”

Dignity and the Free Press

ERIN C. CARROLL

As American institutions wither and die, those who believe in their importance must reflect and rebuild. One institution worthy of sustained attention is the free press. Divorced from government by design, the press can benefit from efforts to reinvigorate and reinvent it in ways that institutions more directly under the federal government’s thumb cannot. To best undertake these efforts, we need a richer understanding of why a free press is vital. Articulating the values that underlie the need for this institution is necessary not only to build the most robust free press, but also to best exercise our freedoms as Americans.

The conventional wisdom about why the United States needs a free press has remained stagnant for a quarter-millennium: the press is a bulwark of democracy. Perhaps because democracy is such a fundamental national value, press advocates have failed to look beyond it. We have failed to see that democracy does not exist in isolation. Rather, it operates in concert with other values, and its strength rises and falls along with them. The press can be a bulwark of an array of democracy-aligned values. A key one of these is human dignity.

The press promotes human dignity foremost by serving as a generator and distributor of information. But more specifically, it advances dignity through editorial practices that prioritize fairness, accountability, and recognition of fellow humans. It also promotes dignity by producing news about those who might otherwise be overlooked.

In trying to create a formidable free press, it is important to consider precisely how the press advances dignity and how it can do so better. In expanding our understanding of the press’s benefits (actual and potential), we better ensure a future in which the press—a key creator of community narratives, social meaning, and publics—upholds collective values.

Chilling Ambiguity: Can Espionage Act Liability be Imposed for Reporting the News?

DAVID SCHULZ & BRIAN O’NEILL

The Espionage Act, 18 U.S.C. § 793(d)–(e), makes it a crime for anyone without prior authorization to disclose “information relating to the national defense” if there is “reason to believe” that disclosure could harm the United States or aid a foreign government. This loosely worded prohibition can be read to subject government whistleblowers to imprisonment for disclosing “information relating to the national defense” to a journalist without authorization; it can also be read to jail journalists for reporting such information. For more than fifty years, the Act was used only to prosecute traitors and spies as Congress intended, but after 9/11, its broad language was repeatedly invoked to prosecute government employees who leaked information to the press. No appellate court has yet addressed the First Amendment’s limits on the government’s ability to punish the public disclosure of accurate, newsworthy information the Executive branch had classified to protect
national security.

Answering this critical question has become an issue of immediate concern with the return of Donald Trump to the White House. The first-ever use of the Espionage Act to indict the publisher of a classified leak (and not just the leaker) was brought during Trump’s first term in office, when Espionage Act charges were filed against WikiLeaks founder Julian Assange. But that case was resolved with a plea during the Biden administration, so the Act’s constitutional limits remain undetermined even as the new Trump administration makes chilling the press a governing priority and regularly invokes national security as justification for presidential action.

Identifying the First Amendment limits to the Espionage Act is complicated because it will require a court to resolve a clash of two fundamental values—protecting freedom of expression and protecting national security. This Essay outlines an approach to resolving this clash, drawn from procedures and standards developed by courts to adjudicate conflicts between freedom of expression and other fundamental values—personal reputation and privacy. It first reviews the scope of the Espionage Act, the absence of judicial precedent defining the First Amendment’s limit on the Act’s reach, and the impact of this ambiguity on journalists and their sources. It then considers standards and procedures developed to conform the common law of defamation and privacy to the First Amendment’s commands that should inform how the First Amendment limits Espionage Act liability when information of public concern is leaked to the press. These include: 1) the muscular gate-keeping role given to judges to screen out meritless claims; 2) requiring those seeking to punish a speaker to prove either a culpable state of mind or actual, speech-caused injury; 3) applying standards intended to balance the competing interests predictably and provide clarity to guide behavior; and 4) requiring courts to independently ensure that record evidence convincingly supports any sanction imposed on speech.

This Essay contends that identifying the constitutional constraints needed to prevent the Espionage Act from becoming a retaliatory tool to punish disclosures of government misconduct and abuse will require procedural solutions as much as substantive ones. The answer need not depend on courts inventing a new doctrine. It can come from familiar First Amendment practice developed in defamation and privacy cases and from the judiciary’s established role in policing secrecy claims in other contexts.

Press Freedom’s History and Tradition

RONNELL ANDERSEN JONES & SONJA R. WEST

Backward-looking, history-and-tradition analysis is gaining greater prominence at the U.S. Supreme Court. While the Court has not yet explicitly applied its history-and-tradition framework to press freedom questions, the methodology’s dominance across other areas, coupled with some urgent concerns about the scope of newsgatherer protections and some Justices’ interest in reconsidering long-established precedent, suggest that this application could be imminent. In anticipation of that moment, we set out to empirically map the Court’s engagement with the history and tradition of press freedom in its rhetoric over time. Our goals were to explore, both quantitatively and qualitatively, how the Court’s Justices have discussed historical and traditional views on press freedom and whether the intensified history-and-tradition analysis that now dominates the Roberts Court’s constitutional decisions is mirrored in its discussions of the press. What we found was deeply counterintuitive. The trend data show that while the Court once routinely commented on the Founders’ support for the press and the nation’s long history of press freedom, these references are now waning. That is, even as history-and-tradition analysis has proliferated in the Roberts Court’s recent decisions, references to these concepts in mentions of the press have plummeted. This paradox suggests that the Roberts Court may be discarding its longstanding positive historical narrative of press freedom just as it is elevating history and tradition as tools of constitutional interpretation.

Combatting Cyberstalking with Copyright Law: An Alternate Route for Redress

Jaylein Piekarski

This Comment explores the growing phenomenon of “copycat cyberstalking,” a form of stalking in which individuals obsessively mimic another’s social media content—including posts, poses, outfits, captions, and digital aesthetics—to the point of emotional distress and reputational harm. Given the limitations and inconsistencies of existing cyberstalking laws, which often fail to address nuanced and non-physical forms of digital harassment, this Comment proposes an innovative legal remedy: the application of copyright law. Through a detailed analysis of the first-of-its-kind case based in copyright, Gifford v. Sheil, this Comment argues that content creators can frame instances of cyberstalking as copyright infringement by utilizing doctrines such as the substantial similarity test. By applying copyright standards to curated digital expression, victims can pursue legal recourse even when cyberstalking statutes fall short. Ultimately, this Comment advocates for the recognition of user-generated content as protectable creative work and highlights the potential for copyright law to fill critical enforcement gaps in the digital age.

Everything Old Is New Again: Attacks on New York Times v. Sullivan and the Weaponization of Libel Law

AMY KRISTIN SANDERS

Free press advocates have lamented the recent uptick in the number of lawsuits news organizations from the Wall Street Journal to CNN are facing for their critical coverage of government and political leaders. But history reminds us that these attacks are not new despite the First Amendment’s purported protection of freedom of expression. Even before the Constitution was ratified, printer John Peter Zenger faced seditious libel charges for criticism of Britain’s colonial leaders. During the Civil Rights Movement, segregationists turned to libel laws to discourage news coverage of their violent efforts to avoid integration. Not long after Watergate brought down President Nixon, conservative political groups launched high-profile attempts to bring the watchdog press to heel. This Essay analyzes these key lawsuits and the historical moment in which they arose in an effort to glean key litigation and advocacy strategies to help news organizations rebut current attempts to weaponize libel law and erode press freedom.

Trump Administration’s Attacks on the Press, Universities, and Law Firms: Five Key Commonalities

MARY-ROSE PAPANDREA

When Donald Trump returned to the Presidency in 2025, the heated rhetoric attacking the press, universities, and lawyers that dominated his first term in office turned to action. These aggressive attacks on our nation’s elite institutions have been remarkably successful. This Essay asks why. This Essay first offers some historical context for Trump’s attacks and outlines their general parameters. Although the current Trump administration attacks on the press, universities, and law firms are more brazen and more aggressive than any we have ever seen before, our own nation’s history laid the groundwork for them. In addition, in recent decades the public’s trust in universities, the press, and elites in general has dramatically decreased, blunting political outrage. The second Part of this Essay identifies five key factors leading to the remarkable success of the Trump attacks: (1) these institutions need money and are run like businesses; (2) legal challenges to the Trump administration’s actions face significant procedural obstacles and substantive uncertainty; (3) the Administration’s actions have a broad chilling effect on others; (4) the institutions under attack have a weak commitment to the freedom of speech, the freedom of the press, and academic freedom; and (5) the institutions are fractured and have failed to engage in effective collective action. In light of these weaknesses, saving our democratic institutions from the Trump administration’s attacks will be no easy feat.