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May 31, 2018

Cheers to Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable

Independent craft breweries contributed approximately $68 billion to the national economy last year. However, an arcane regulatory scheme governs the alcohol industry in general and the craft beer industry specifically, posing both obstacles and benefits to independent craft brewers. This Essay examines regulations that arguably infringe on free speech: namely, commercial speech regulations that prohibit alcohol manufacturers from purchasing advertising space from retailers. Such regulations were enacted to prohibit undue influence and anticompetitive behavior stemming from vertical and horizontal integration in the alcohol market. Although these regulations are necessary to prevent global corporate brewers from dominating the craft beer market at the expense of independent craft beer and consumer choice, evolving commercial speech doctrine threatens to invalidate them due to a trend towards increased protections for commercial speech. Without these regulations, and many others like them, nothing would restrain global corporate brands from engaging in illegal pay-to-play conduct to regain lost market share and force independent craft beer from the shelves and tap handles.

Editor's Note:Thank you to Paige Davidson and Jessica Gandara for powerful research assistance and insights.

November 19, 2014

Ties that Bind? The Questionable Consent Justification for Hosanna-Tabor

A response to Professor Christopher Lund's recent article on public laws and the Establishment Clause.

Editor's Note:A response to Professor Christopher Lund's recent article on public laws and the Establishment Clause.

March 19, 2014

Party-Based Corruption and McCutcheon v. FEC

Shaun McCutcheon contributed almost half a million dollars in
campaign finance money over the last three years but wanted to contribute
still more. In the 2011–2012 election cycle alone, he contributed to sixteen
federal candidates, all three national Republican Party committees, and
several other political action committees (PACs). Nonetheless, he wanted
to contribute money to at least a dozen more candidates and even more to
the Republican Party committees. The problem for McCutcheon is that the
additional $100,000 that he wished to donate would have exceeded the
federal aggregate contribution limit that capped the total amount an
individual could contribute during that federal election cycle at $117,000.
In a case popularly billed as the next Citizens United, McCutcheon
challenged this aggregate limit under the First Amendment,
and if
successful, he and other wealthy individuals will be free to donate almost
$4 million in campaign finance contributions each election cycle.

March 7, 2014

Silence Is Golden: Moments of Silence, Legislative Prayers, and the Establishment Clause

I’m wondering what you would think of the following: Suppose that as we began this session of the Court, the Chief Justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side.

The members of the Court who had stood responded amen, made the sign of the cross, and the Chief Justice then called your case.

Would that be permissible?

                                         Justice Elena Kagan



In Town of Greece v. Galloway, the Supreme Court is considering what may become a landmark decision on the constitutionality of prayers at town council meetings. At oral argument, Justice Kagan began by asking the question quoted above raising the hypothetical of whether an obviously Christian prayer (similar to the ones actually at issue in the case) would be allowed at the start of a Supreme Court session. The lawyer for the town fumbled the question (the answer is probably no), and for the next sixty minutes it seemed like the Justices would have preferred to be doing almost anything other than deciding this case. In fact, towards the end of the argument, Justice Kagan uttered the following sobering and depressing comments: “Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”