The war between Hamas and Israel has caused havoc in higher education. Amid student unrest, alumni pressure, congressional hearings, civil rights investigations, and student lawsuits, universities stand at a crossroads. The current situation, in which most private universities unevenly regulate student speech under ambiguous student codes, is not sustainable politically or legally. A tsunami of litigation and regulatory actions has already begun. One increasingly favored response is for private universities to more vigorously enforce existing codes or expand their scope. An alternative is for private universities to deregulate student expression and commit by contract to the First Amendment. This Article argues for the latter approach largely on pragmatic grounds. In essence, our argument is based upon the realities of university organizational behavior, which make it difficult for universities to enforce speech codes in a manner that complies with their statutory and contractual obligations. Ambiguous codes, informal process, and political homogeneity among decision-makers inevitably result in inconsistent regulation of speech. These problems can be mitigated by committing to the First Amendment, which would both clarify and constrain university speech regulations by incorporating a large body of caselaw, some of which bears directly on higher education. Such clarity would limit the scope of university discipline, provide a basis for legally required consistency, and be more readily amenable to external review by courts and federal regulators. Experience with the First Amendment in public universities suggests that such a commitment will not have deleterious consequences for campus life.

What is a burden on interstate commerce? That’s an important question under the Dormant Commerce Clause’s Pike balancing test. But it’s a question whose answer has proven elusive. This shouldn’t be a surprise. After all, states disagree about what counts as a burden or a benefit, and how much weight each has. And there aren’t any obvious constitutional principles we can point to for resolving those disagreements. Recently, some scholars have tried to ground dormant commerce doctrine in economic cost–benefit analysis. The supposed virtue of that approach is that it is neutral as to competing preferences. Thus, for the Court to subject state laws to a cost–benefit test would preserve a kind of judicial neutrality that a bald evaluative assessment would not. But cost–benefit analysis isn’t nearly as neutral as its proponents assume. Indeed, it involves a controversial, and arguably misguided, evaluative outlook that we should be hesitant to constitutionalize under the Commerce Clause. Still, I claim that there may be a limited role for Pike balancing, or something like it, in a narrow range of cases involving functional kinds with an uncontroversial telos such as trains and trucks. But even there, we should avoid the unhelpful abstraction of a “burden on interstate commerce.” Could Pike be defended as a proxy for other constitutional values? I argue that Pike fails even that test. Thus, it is far past time to retire Pike.

The compulsory music reproduction license codified at 17 U.S.C. § 115 allows anyone to obtain the right to record another version of, or “cover,” a previously published musical work. Invoking the compulsory license, however, comes at a dramatic cost. Under § 115(a)(2), the licensee cannot copyright any original musical material they compose for the cover without express permission from the underlying copyright owner, even if that material would otherwise be copyrightable. This limitation gravely harms jazz music, as jazz relies on dynamic recompositions of preexisting music. Jazz musicians depend on compulsory licenses to record the reinterpretative covers essential to the genre, but are barred from copyrighting the original, expressive solos and arrangements that they record as part of their covers. This prohibition on copyrightability means jazz musicians do not receive royalty compensation for composing their solos and arrangements when their recordings are performed, reproduced, distributed, or licensed. This also allows third parties—often major music publishing companies—to transcribe and sell jazz arrangements and solos without compensating their performers or composers. This Note addresses fundamental flaws in the compulsory licensing regime and proposes a novel statutory amendment allowing jazz musicians to “dream a little dream” of licensing.