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Today’s law school graduates face two disturbing trends in the professional world. Each is well known, but neither is openly discussed in the law school setting. First, lawyers suffer from chronic professional dissatisfaction. Approximately one out of every four lawyers is dissatisfied with her job. Second, this dissatisfaction exacts an extraordinarily high price on lawyers, the legal profession, and society as a whole. Most startling, however, is the fact that the widespread dissatisfaction and the associated mental health-related problems prevalent in the legal profession actually begin in law school.

The Supreme Court’s decision in Pearson v. Callahan ended an eight-year experiment in the adjudication of qualified immunity claims. That experiment began with Saucier v. Katz, in which the Court held that lower courts mustdecide whether a government officer violated a plaintiff’s constitutional rights before addressing the question of whether the government officer was entitled to immunity. The Court’s rationale for requiring lower courts to first address the merits was the need to clarify constitutional law for the benefit of both government actors (who could then better conform their behavior to constitutional standards) and future plaintiffs (who could then overcome the defense of qualified immunity and recover damages for their injuries). But Pearson overturned Saucier’s mandate, holding that merits-first adjudication, while often appropriate, “should no longer be regarded as mandatory.” The Court cited a number of reasons for its decision, including the detriment to judicial efficiency; the reality that principles articulated may be of little value, particularly if a higher court is about to pass on the same question or if the question involves state law; the difficulty of making law on uncertain facts when qualified immunity is asserted at the pleading stage; the concern that the government will be unable to appeal an unfavorable decision on the merits if it prevails on qualified immunity; and contravention of the longstanding principle of constitutional avoidance.

The U.S. newspaper industry specifically and traditional media industries generally are in transition. In response to declining audiences and advertising revenue, many traditional media firms have laid off journalists and cut back on news. With their financial difficulties, some traditional media firms have called for greater leniency under the federal antitrust laws. Newspaper owners and journalists have called for greater antitrust immunity for joint advertising, joint fees for readership and accessing content online, and joint reporting. Others have called on the Federal Communications Commission (“FCC”) to loosen further its Cross-Ownership Rules. Some politicians have suggested that the federal antitrust agencies give these traditional media firms “more leeway to merge or consolidate.” The Federal Trade Commission (FTC) in recent hearings inquired as to whether antitrust immunity is necessary for newspapers’ collaboration and under what circumstances, if any, antitrust immunity for certain joint conduct could be justified.

In this debate, Professors Rosenthal and Malcolm debate the standard of scrutiny that the Supreme Court should apply to restrictions on the Second Amendment in the wake of its recent decision, McDonald v. City of Chicago. Professor Rosenthal begins Part I by noting the importance of gun-control laws to police; he considers a lower standard of scrutiny necessary to allow law enforcement officials to protect the community. Turning to the practical consequences of Chicago and Washington, D.C.’s recent gun-control laws, which make owning a gun nearly impossible in those cities, Professor Malcolm argues for a standard of strict scrutiny for all gun-control laws in Part II. Finally, in Part III, Professor Rosenthal replies.

The recent U.S. Supreme Court decision in Salazar v. Buono, a case involving a Latin cross placed on federal land in the Mojave Desert by the Veterans of Foreign Wars, approaches what many would assume to be the central issue in the case from an oblique. Does the Mojave Desert cross, sitting atop Sunrise Peak in a federal park preserve, violate the Establishment Clause of the First Amendment? Neither Justice Kennedy’s plurality opinion nor any of the concurring or dissenting opinions in Salazar answers that question. Salazar’s complicated web of facts and procedural history precluded the Court from resolving the most compelling issue in the Salazar litigation. Instead, most of the opinions in Salazar circle the merits of the constitutionality of the Mojave Desert cross in language ostensibly directed at the remedy—the land transfer statute enacted to preserve the cross—but arguably aimed at the cross itself. On a charitable view, the plurality, concurring, and dissenting opinions simply make the best of the facts and law given the tortured path of the case through the lower courts. But it is not folly to speculate that a different path would have presented cleaner issues for decision and resolution, and would have given some closure to the litigants involved. Perhaps most important, a decision on the merits of the constitutionality of the Mojave Desert cross could have clarified the trajectory of the Supreme Court’s Establishment Clause doctrine for future cases.

Commentators often complain that Establishment Clause jurisprudence is incoherent and unprincipled. That accusation usually seems overwrought—perhaps we should not expect so much consistency from a Court that decides only the cases that come before it, holds multiple values, operates with continually changing personnel, and gives significant but unquantifiable weight to precedent. Yet of the areas of Establishment Clause litigation, this complaint carries the most force in the context of passive-display cases—cases where the government passively displays a religious symbol, like a cross or a crèche, a Ten Commandments monument, or an illuminated Bible. Here the critics have a point.

The striking image of a white cross on stark rock, silhouetted against the desert sky, now symbolizes not only Christianity and, arguably, World War I military sacrifice, but also the equally dramatic, prolonged saga of the Salazar v. Buono litigation. The photos invoke the most recent Supreme Court battle in the legal and cultural war to define religion’s role in the public square. Competing approaches stress either preserving history or avoiding government endorsement of religion; this brief article analyzes a potential new synthesis suggested by Buono. The original cross war memorial was erected in 1934 by a local group of WWI veterans in the Mojave Desert, an isolated area of federally-owned land which, 60 years later, became a National Preserve. When Frank Buono brought an Establishment Clause suit over the display of the large cross on federal land, the district court held that it conveyed the appearance of a government endorsement of Christianity, and thus enjoined its display. While the decision was pending before the district court, and in the aftermath of 9/11, Congress designated the cross a National Memorial. Next, rather than remove the cross, while the first Ninth Circuit appeal was pending, Congress passed a land swap bill to transfer the underlying property to the Veterans of Foreign Wars (VFW), so long as the property continued to be used as a war memorial. The Ninth Circuit affirmed, without resolving the issue of whether the land transfer would itself be constitutional or cure the Establishment Clause violation. When Buono returned to the district court to stop the land transfer, that court found Congress’s strategy to be an invalid attempt to circumvent the 2002 injunction and permanently enjoined the land transfer (the “2005 injunction”). The Ninth Circuit again affirmed.

After oral argument, Salazar v. Buono looked like it might be a dud. As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only Justice Antonin Scalia appeared inclined to reach the Establishment Clause question” that gave rise to the legal controversy. But, in the intervening months, the case has gotten more and more interesting. First, most members of the Court did—in at least some way—reach the substantive merits in the decision; ironically, only Justices Scalia and Clarence Thomas would have disposed of the case on standing grounds. And second, in a twist no one saw coming, the Latin cross at the heart of the dispute disappeared just a few days after the Court announced its decision. As a result, a case that seemed doomed to founder on its awkward procedural posture has, at least fleetingly, brought the Establishment Clause back into the national spotlight. Given the complexity of the procedural questions, however, it is probably worthwhile to revisit the case’s history before moving on to the more intriguing substantive questions the Court’s opinions present.

“I just killed my two kids. . . . I drowned them. . . . They are 2 and 4. . . . I just shot myself. . . . with a gun. . . . Please hurry.” That was the dying declaration of 21-year-old Julia Murray on February 16, 2010, preserved for all of posterity on a 911 emergency telephone recording and available to anyone and everyone in Florida—from journalists and police to even voyeurs and perverts—under that state’s open records laws. Murray and one of her three children are gone (the second child survived the drowning attempt), but her words remain. Should the public have a right to hear them? In 2010, multiple events magnified public focus on the escalating tension between family members’ privacy rights with respect to the death-scene images and dying words of their loved ones, on the one hand, and the public’s right to access those documents, on the other.

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances? Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the law would likely be constitutional? These questions are not new, but my answers to them are and add to the existing literature in several ways. First, I offer a possible resolution to a recent debate among legal scholars regarding what has been called the nonidentity problem and its relation to the right to procreate. Second, using that resolution, I provide a novel constitutional argument that at least begins to justify limiting the right to procreate.