Exploring New Approaches to Unsettled Legal Questions

Author: Andrew Debbins

Everywhere at Once: The Tinker Framework and Off-Campus, Online Speech

by Avery Medjuck*

May a school restrict a student’s online speech without violating the First Amendment? In this Contribution, Avery Medjuck (’18) explains how the omnipresence of digital communication challenges the Tinker framework for determining when a school administrator can lawfully restrict speech. This Contribution argues that only a test that considers the intent of the student speaker can adequately balance students’ free speech rights against administrators’ need to protect the school environment.

Caveat Utilitor: A Tort Regime for Outer Space

by Jason A. Driscoll*

Is damage to a lunar mining facility actionable under the Outer Space Treaty when the facility is built on the surface of the Moon and made entirely from lunar rock? In this Contribution, Jason A. Driscoll (’18) analyzes a wrinkle in the law of outer space, contemplating whether the current outer space tort regime protects damage to property crafted entirely from materials mined in outer space. The Contribution argues that the current regime does not protect and cannot account for the unprecedented, though possible, practice of manufacturing objects in outer space using extraterrestrial materials.

Rights on ICE: A Determination Delayed is Due Process Denied

by Sharon Turret*

How long may Immigration and Customs Enforcement detain a noncitizen before he or she must go before a judge? In this Contribution, Sharon Turret (’18) analyzes the Due Process Clause issues with a “reasonableness” test for length of detention and the need for a bright-line rule. This Contribution argues that the Due Process Clause requires a bright-line rule that the length of detention be presumed unreasonable after six months. That very bright-line rule is now before the Supreme Court in Jennings v. Rodriguez.

Truly Threatening: Intent Requirements for First Amendment Protection

by Ben Lazarus*

How should the law determine whether a true threat was made with intent sufficient to not merit First Amendment protection? In this Contribution, Ben Lazarus (’18) analyzes the different approaches circuit courts have taken to answer this question. This Contribution argues that an objective test for what constitutes a threat is most in line with the Supreme Court’s precedents and reasoning when confronting threatening speech.

The Importance of Privacy in Shared Spaces

by Rachel Lerner*

Does the Fourth Amendment protect a tenant’s privacy in a shared storage unit? Can law enforcement search the whole space if her cotenant consents? In this Contribution, Rachel Lerner (’18) analyzes whether a tenant has a reasonable expectation of privacy in the space and whether it is reasonable for police to search the space upon a third-party’s consent. The Contribution argues that the Fourth Amendment protects a shared storage unit either as curtilage under Dunn or under the Katz test, and law enforcement cannot reasonably search a well-demarcated section of the unit if another cotenant consents.

The Prudence of Finality: Equitable Mootness and Involuntary Creditors

by Cyrus B. Kornfeld*

Incentivizing Chapter 11: Why A Non-Debtor Discharge Is Within the Authority of the Bankruptcy Courts and in the Best Interest of Creditors

by Chelsea Ireland*

The Doctrinal Significance of Message Attribution in Compelled Speech Cases

by Jesse Klinger*

If a baker has a religious objection to same-sex marriage, would a law that doesn’t allow him to refuse to sell to a same-sex couple for their wedding violate his First Amendment rights? In this Contribution, Jesse Klinger tackles the problem of whether public accommodations laws — laws that prohibit discrimination in the provision of goods and services — impermissibly compel a person to speak. The Contribution examines the Supreme Court’s compelled speech precedents and argues that message attribution is the key issue. In particular, because public accommodations laws are content-neutral, a speaker’s First Amendment rights are violated only if one would attribute a particular message to the provider of the goods or services in question.

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