Innovating Preemption or Preempting Innovation?

Balancing Judicial Deference Under the State Secrets Privilege: A Comparative Statutory Approach

Data Privacy in Carceral Settings: The Digital Panopticon Returns to Its Roots

Racial Targets

The Promise and Perils of Tech Whistleblowing

Partisanship Creep

The Impossibility of Corporate Political Ideology: Upholding SEC Climate Disclosures Against Compelled Commercial Speech Challenges

By: Erin Murphy | April 14, 2024

To address the increasingly dire climate crisis, the SEC will require public companies to reveal their business’s environmental impact to the market through climate disclosures. Businesses and states challenged the required disclosures as compelled, politically motivated speech that risks putting First Amendment doctrine into further jeopardy. In the past five years, the U.S. Supreme Court has demonstrated an increased propensity to hear compelled speech cases and rule in favor of litigants claiming First Amendment protection from disclosing information that they disagree with or believe to be a politically charged topic. Dissenting liberal Justices have decried these practices as “weaponizing the First Amendment” to evade government regulation.

The threshold question—whether certain types of speech such as securities regulations implicate the First Amendment—is rarely addressed by the Court and has never been affirmatively decided. Historically, commercial speech (expression by a corporation about an economic transaction) receives lower levels of protection relative to political or individual speech. The Court has held that compelled commercial disclosures of a factual and uncontroversial nature required only rational basis review. The Court, however, has never ruled on protections for corporations when the compelled speech is potentially of a political, rather than purely factual, nature and has continually avoided this question with narrow holdings and carved out exceptions. A First Amendment challenge to climate disclosures would force them to confront it directly.

If the challenges to the SEC climate disclosures reach the Court, it will need to consider its precedents in both commercial and compelled speech cases and incorporate the most applicable First Amendment theory. This Note argues that the compelled speech doctrine is the appropriate First Amendment analysis in deciding whether a corporation can be forced to speak and add more speech to the marketplace. By relying upon compelled speech doctrine and addressing the unnatural fit between speaker rights and corporate law, this Note ultimately concludes that corporations do not have personal First Amendment rights, and, as a result, climate regulations should only be subject to rational basis review.

Silent Today, Conversant Tomorrow: Education Adequacy as a Political Question

By: Yeju Hwang | April 14, 2024

When the Supreme Court declined to recognize the right to education as one fundamental to liberty, and thus unprotected by the U.S. Constitution, state courts took on the mantle as the next best fora for those yearning for judicial review of inequities present in American public schools. The explicit inclusion of the right to education in each state’s constitution carried the torch of optimism into the late twentieth century. Despite half a century of litigation in the states, the condition of the nation’s public school system remains troubling and perhaps increasingly falls short of expectations. Less competitive on an international level, producing historic declines in knowledge, and exhibiting growing gaps between high- and low-performing students, public schools are crying out for help.

But in some states, these cries go largely ignored. Legislators overpromise and underdeliver, while some judges throw their hands up in deliberate defeat, excusing themselves of the judicial duty of interpreting their state’s constitution. Why? To state courts, the very nature of this litigation is a “political question.” This Note examines different approaches that state courts employ in education adequacy litigation, endorses the active participation model as the “best approach,” and uses the recent case William Penn School District v. Pennsylvania Department of Education as a lesson to showcase the internal absurdity underlying state judges’ use of the political question doctrine in this area. In evaluating how state courts use this device or reject it entirely, this Note argues against the propriety of the political question doctrine and points out the doubly offensive nature of its inconsistent use.

Preliminary Injunctions Prevail Through the Winter of Buckhannon

By: Kaitlan Donahue | April 14, 2024

The Civil Rights Attorney’s Fees Awards Act of 1976 allows courts to award attorneys’ fees to the “prevailing party” in any “action or proceeding” enforcing several civil rights-related statutes. Yet, this statute fails to define the term “prevailing party,” leaving the courts to define it over time. The Supreme Court’s piecemeal, vague definitions of “prevailing party” have only complicated the legal landscape and caused more uncertainty for potential plaintiffs and their prospective attorneys. Without the relief offered by recovery of attorneys’ fees, private litigants may be dissuaded from pursuing meritorious litigation due to overwhelming costs of representation, and attorneys may face a choice between accepting or denying an otherwise successful case solely due to a prospective client’s ability to pay. In Sole v. Wyner, the Supreme Court held that a plaintiff who is awarded a preliminary injunction is not considered a prevailing party if “the merits of the case are ultimately decided against her.” In deciding Sole, the Court declined to answer a separate but important question: Is a plaintiff a prevailing party if their case is mooted after obtaining a preliminary injunction?

Courts attempting to answer this question struggle to find tangible guidance from the Supreme Court following its decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, resulting in inconsistencies, overly complicated analyses, and in some cases, misguided rejection of prevailing party status. The legal analysis behind prevailing party status must be streamlined to preserve this critical and necessary litigation. This Note explores how, in the aftermath of Winter v. Natural Resources Defense Council, Inc., a plaintiff whose case is mooted after obtaining a preliminary injunction is a prevailing party within the framework of Buckhannon.

Nw. U. L. Rᴇᴠ.