The Search for an Egalitarian First Amendment

Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation – generating widespread accusations that the Court has created a new Lochner. This introduction to the Columbia Law Review\u27s Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a more egalitarian First Amendment look like today? After describing the phenomenon of First Amendment Lochnerism, we trace its origins to the collapse of the early twentieth-century progressive model of civil libertarianism, which offered a relatively statist, collectivist, and labor-oriented vision of civil liberties law. The recent eruption of First Amendment Lochnerism is also bound up with transformations in the economic and regulatory environment associated with the advent of informational capitalism and the information state. First Amendment Lochernism may reflect contemporary judicial politics, but it has deep roots. To figure out how to respond to the egalitarian anxieties besetting the First Amendment, it is natural to consult normative theories of free speech. Yet on account of their depoliticization and abstraction, the canonical theories prove indeterminate when confronted by these anxieties. Instead, it is a series of midlevel conceptual and jurisprudential moves that most often do the work of resisting First Amendment Lochnerism. This grammar of free speech egalitarianism, we suggest, enables the creative elaboration of a few basic motifs concerning the scope and severity of judicial enforcement, the identification and reconciliation of competing speech interests, and the quality and accessibility of the overall expressive system. If First Amendment Lochnerism is to be countered in any concerted fashion, the roadmap for reform will be found within this grammar; where it gives out, a new language may become necessary

Working Themselves Impure: A Life Cycle Theory of Legal Theories

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure. This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values – the usual focus of criticism – for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second- and third-order social, political, and ideological effects that the adulterated theory\u27s persistence may foster down the line

Working Themselves Impure: A Life Cycle Theory of Legal Theories

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure. This Article identifies and diagnoses this evolutionary phenomenon. We de velop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and costbenefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant firstorder valuesthe usual focus of criti cismfor those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second and thirdorder social, political, and ideological effects that the adulterated theory\u27s persistence may foster down the line

Velocity Fluctuations in Dynamical Fracture: the Role of Microcracks

We address the velocity fluctuations of fastly moving cracks in stressed materials. One possible mechanism for such fluctuations is the interaction of the main crack with micro cracks (irrespective whether these are existing material defects or they form during the crack evolution). We analyze carefully the dynamics (in 2 space dimensions) of one macro and one micro crack, and demonstrate that their interaction results in a {\em large} and {\em rapid} velocity fluctuation, in qualitative correspondence with typical velocity fluctuations observed in experiments. In developing the theory of the dynamical interaction we invoke an approximation that affords a reduction in mathematical complexity to a simple set of ordinary differential equations for the positions of the cracks tips; we propose that this kind of approximation has a range of usefulness that exceeds the present context.Comment: 7 pages, 7 figure

Microscopic Selection of Fluid Fingering Pattern

We study the issue of the selection of viscous fingering patterns in the limit of small surface tension. Through detailed simulations of anisotropic fingering, we demonstrate conclusively that no selection independent of the small-scale cutoff (macroscopic selection) occurs in this system. Rather, the small-scale cutoff completely controls the pattern, even on short time scales, in accord with the theory of microscopic solvability. We demonstrate that ordered patterns are dynamically selected only for not too small surface tensions. For extremely small surface tensions, the system exhibits chaotic behavior and no regular pattern is realized.Comment: 6 pages, 5 figure

The Jurisdiction of the D.C. Circuit

The U.S. Court of Appeals for the D.C. Circuit is unique among federal courts, well known for an unusual caseload that is disproportionally weighted toward administrative law. What explains that unusual caseload? This Article explores that question. We identify several factors that “push” some types of cases away from the Circuit and several factors that “pull” other cases to it. We give particular focus to the jurisdictional provisions of federal statutes, which reveal congressional intent about the types of actions over which the D.C. Circuit should have special jurisdiction. Through a comprehensive examination of the U.S. Code, we identify several trends. First, the Congress is more likely to give the D.C. Circuit exclusive jurisdiction over the review of administrative rulemaking than over the review of agency decisions imposing a penalty. Second, the Congress is more likely to give the D.C. Circuit exclusive jurisdiction over the review of independent agency actions than over the review of executive agency actions. Finally, the Congress tends to grant the D.C. Circuit exclusive jurisdiction over matters that are likely to have a national effect. In sum, we explore what makes this court unique, from its history to its modern docket and jurisdiction

The Jurisdiction of the D.C. Circuit

The U.S. Court of Appeals for the D.C. Circuit is unique among federal courts, well known for an unusual caseload that is disproportionally weighted toward administrative law. What explains that unusual caseload? This Article explores that question. We identify several factors that “push” some types of cases away from the Circuit and several factors that “pull” other cases to it. We give particular focus to the jurisdictional provisions of federal statutes, which reveal congressional intent about the types of actions over which the D.C. Circuit should have special jurisdiction. Through a comprehensive examination of the U.S. Code, we identify several trends. First, the Congress is more likely to give the D.C. Circuit exclusive jurisdiction over the review of administrative rulemaking than over the review of agency decisions imposing a penalty. Second, the Congress is more likely to give the D.C. Circuit exclusive jurisdiction over the review of independent agency actions than over the review of executive agency actions. Finally, the Congress tends to grant the D.C. Circuit exclusive jurisdiction over matters that are likely to have a national effect. In sum, we explore what makes this court unique, from its history to its modern docket and jurisdiction