Rethinking the Government Speech Doctrine, Post-Trump

The Supreme Court has held that when the government speaks, it faces few constitutional constraints, including adherence to viewpoint neutrality. The Court has indicated that if voters dislike the content of governmental speech, they should express this displeasure through democratic process. Yet the inadequacy of this logic has been exposed by the Trump presidency, which reflected extraordinary willingness to defy norms and conventions of the presidency, including the expectation that the office would not be abused to advance partisan goals or attack political enemies. Since many of Trump\u27s statements had the precise aim of influencing popular self-determination, his presidency shows a weakness of the government speech doctrine\u27s reliance on electoral accountability: it offers no constitutional mechanism for addressing government speech that distorts democratic process itself This Article addresses this lacuna in the government speech doctrine by demonstrating how norms of democratic accountability should discipline the government speech doctrine. It first reconstructs the liberal origins of the government speech doctrine and demonstrates these origins elicit the tension between constitutional and democratic authority. The principles ofpopular autonomy that inform the government speech doctrine are premised upon cultivating responsible and independent reasoning by voters. These norms are the same that justify traditional application of viewpoint neutrality as a mechanism for protecting political reasoning in First Amendment doctrine. The government speech doctrine is novel because it extends this logic offree speech not to constrain the government through constitutional oversight but to suggest it should be subject to democratic rather than constitutional control. A sensitive approach to this balance in general and the government speech doctrine in particular vindicates constitutional scrutiny of government speech when it threatens reasoned and balanced political discourse. The Article then explores one class of government speech characteristic of Trumpist governance that shows the urgency of revising the theory and practice of the government speech doctrine: partisan speech that deviates from neutral governance. The responsible individual reasoning and collective electoral accountability that underlie the government speech doctrine suggest its appropriate future development: government speech invites constitutional scrutiny when it threatens to distort or prejudice, rather than cultivate and clarify, citizens\u27 reasoning. The Supreme Court, rather than rigidly exempting state speech from constitutional scrutiny, should adopt such a nuanced analysis in future application of the government speech doctrine

The Unspoken Institutional Battle over Anticorruption: \u3cem\u3eCitizens United\u3c/em\u3e, Honest Services, and the Legislative-Judicial Divide

Guided by two cases decided in 2010 (Citizens United and Skilling), this article investigates a pivotal but overlooked dispute between the Supreme Court and Congress over the acceptable contours of public corruption law. Each case narrowly relies on principles and precedents that appear only tangentially related to corruption. Yet in historical context, these cases emerge as only the latest judicial nullification of broad and flexible congressional anti-corruption legislation. Through parallel examination of campaign finance regulation and honest services law, this article suggests a subtle but striking pattern: when Congress has advanced expansive, flexible anti-corruption measures, the Supreme Court has tenaciously constrained such measures in favor of narrowly drawn bright-line rules.This article argues that the disagreement originates in the institutions’ differing postures towards anti-corruption. Certain congressional action has promoted civic-minded public conduct, and thus facilitated ‘deliberative’ examination of political motives. However, the Supreme Court has generally blocked broadly constructed anti-corruption measures because their enforcement threatens constitutionally protected individual rights. Thus the Court has left standing a ‘competitive’ anti-corruption regime which presumes a market-like political setting populated by self-interested actors.This unspoken divergence has shaped corruption law, and with it the nature of American politics. The Court’s intractability poses a dilemma for future anti-corruption reform. Policy-makers must either defer to the Court but relinquish the possibility of deliberative anti-corruption achieved through traditional regulatory and prosecutorial means, or force a reconsideration of individual rights in the context of anti-corruption enforcement

McDonnell and Anti-Corruption\u27s Last Stand

In McDonnell v. United States, the Supreme Court constrained the reach of federal anti-corruption law, declared the inevitability and even desirability of representatives aggrandizing favored constituents, and asserted patronage to be a hallmark of democracy. The unanimous decision is the latest and clearest indication that the Court will frustrate regulations that require officials to discharge their roles with disinterested neutrality. This article demonstrates the impact of the Court\u27s minimalist view of integrity through political philosophy and game theory. Given the Court\u27s hostility to regulatory prohibition of self-interested political behavior, the final bulwark of public-minded governance is the electorate, which must use the ballot box to reject corrupt representatives. Additionally, the Court\u27s position erects significant obstacles for reform of campaign finance and political institutions. The article concludes that implementing civic anti-corruption requires either jurisprudential innovation or novel approaches to enforcement. This article thereby integrates the history of modern anti-corruption law with the latest leading decision on the topic, weaves together the Court\u27s blackletter doctrine with its substantive politics, describes the impact of the law on democratic governance, and points the way forward for both scholarship and policy

Data-driven personalisation and the law - a primer: collective interests engaged by personalisation in markets, politics and law

Interdisciplinary Workshop on â��Data-Driven Personalisation in Markets, Politics and Law' on 28 June 2019Southampton Law School will be hosting an interdisciplinary workshop on the topic of â��Data-Driven Personalisation in Markets, Politics and Law' on Friday 28 June 2019, which will explore the pervasive and growing phenomenon of â��personalisationâ�� â�� from behavioural advertising in commerce and micro-targeting in politics, to personalised pricing and contracting and predictive policing and recruitment. This is a huge area which touches upon many legal disciplines as well as social science concerns and, of course, computer science and mathematics. Within law, it goes well beyond data protection law, raising questions for criminal law, consumer protection, competition and IP law, tort law, administrative law, human rights and anti-discrimination law, law and economics as well as legal and constitutional theory. Weâ��ve written a position paper, https://eprints.soton.ac.uk/428082/1/Data_Driven_Personalisation_and_the_Law_A_Primer.pdf which is designed to give focus and structure to a workshop that we expect will be strongly interdisciplinary, creative, thought-provoking and entertaining. We like to hear your thoughts! Call for papers! Should you be interested in disagreeing, elaborating, confirming, contradicting, dismissing or just reflecting on anything in the paper and present those ideas at the workshop, send us an abstract by Friday 5 April 2019 (Ms Clare Brady [email protected] ). We aim to publish an edited popular law/social science book with the most compelling contributions after the workshop.Prof Uta Kohl, Prof James Davey, Dr Jacob Eisler<br/

Climate change and the challenge to liberalism

In this editorial, we consider the ways in which liberal constitutionalism is challenged by and presents challenges to the climate crisis facing the world. Over recent decades, efforts to mitigate the climate crisis have generated a new set of norms for states and non-state actors, including regulatory norms (emission standards, carbon regulations), organising principles (common but differentiated responsibility) and fundamental norms (climate justice, intergenerational rights, human rights). However, like all norms, these remain contested. Particularly in light of their global reach, their specific behavioural implications and interpretations and the related obligations to act remain debatable and the overwhelming institutionalization of the neoliberal market economy makes clear and effective responses to climate change virtually impossible within liberal societies.<br/