A central concern in First Amendment jurisprudence is the proper scope of government authority to regulate speech on matters of national political concern. Such speech supposedly secures heightened protection via a "strict scrutiny" test long glossed as "fatal in fact." Strict scrutiny is thought to demand that measures be "‘narrowly tailored'" to address a "‘compelling government interest.'" Recent scholarship, however, has demonstrated that strict scrutiny is internally variegated. Under its rubric, courts employ different methodologies and varying degrees of stringency. Courts also subtly alter the verbal formulation of scrutiny even within the political speech domain. This Essay is a case study of how the heightened judicial scrutiny of political speeh regulation can vary even between cases decided by a single tribunal—the Roberts Court.

Response to: Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670 (2011)

Critics of the curtailment of the exclusionary rule worked by Herring v. United States have denounced the decision as Supreme Court activism posing as derivation from settled law. Professor Jennifer Laurin agrees that Herring breaks with exclusionary rule doctrine but disputes that it lacks any grounding in Court precedent. She says that Herring consummates a long courtship between the Leon good faith exception to the exclusionary rule and the Harlow standard for qualified immunity. Laurin premises her argument on an admittedly unorthodox depiction of qualified immunity that overstates the doctrine's protective scope. Ironically, one effect of this overstatement could be to enable a doctrinal distortion of precisely the type Laurin cautions against. For by positing a substantive equivalence between the Harlow rule and the significantly more protective Herring principle, Laurin invites judges to borrow from Herring to further restrict the availability of constitutional tort remedies. Part I of this Response highlights some potential problems posed by Laurin's heterodox characterization of the qualified immunity doctrine. Part II defends the conventional description of the doctrine as more accurate and normatively desirable. Part III shifts gears and amplifies Laurin's warnings about the transsubstantive application of constitutional tort doctrine.

Response to: Gideon Parchomovsky & Michael Mattioli, Partial Patents, 111 Colum. L. Rev. 207 (2011).

Over the past decade or more, a rising sense of dissatisfaction with patent law has begun to creep across the patent community. A number of factors no doubt have contributed to this sense of dissatisfaction, among them the perception that patents are too often being enforced by "trolls" (if you don't like them) or "nonpracticing entities" (if you want to remain neutral). Professor Parchomovsky and Mr. Mattioli propose a solution in which they create two new forms of patent protection that they call "quasi-patents" and "semi-patents"—or generically, "partial patents." Partial patents are designed to be cheaper to obtain than existing alternatives, but an owner of a quasi-patent would be able to enforce that patent only against direct competitors, whereas in the case of a semi-patent, an inventor would have heavier burdens of disclosure. 

Response to: Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670 (2011).

Constitutional borrowing is not always practiced in a way that is consistent with constitutional commitments or rule of law values. Critics may be troubled when courts use doctrine in one area of law to legitimize a move in another area that they consider objectionable. They might also have structural concerns if the law is reshaped over time through the cumulative effects of borrowing. In a fascinating new Essay, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, Professor Jennifer Laurin provides a case study in what she sees as borrowing's drawbacks. 

As al-Kidd suggests, even when the Court has looked to the substantive law at issue in post-9/11 terrorism cases, it has treaded lightly. In Hamdi, for example, both of the Court's holdings were exceedingly narrow, with the plurality carefully circumscribing its holding that the Authorization for Use of Military Force (AUMF) authorized Hamdi's detention, and stressing that, although "some evidence" was an insufficient evidentiary burden to impose upon the government, the actual mechanics of resolving Hamdi's claims could—and should—be worked out by the lower courts.

Reduced to its simplest, the crux of Justice Jackson's enigmatic dissent in Korematsu was that the federal courts-and the Supreme Court in particular-should avoid deciding wartime cases turning on claims of exigency. In Justice Jackson's view, such disputes presented the judiciary with two equally unappealing alternatives: either uphold the government's conduct, and thereby risk the consequences of lending legal imprimatur to an effectively unreviewable claim of military necessity (which is what ended up happening in Korematsu itself), or invalidate the contested act, and risk being ignored by the executive-perhaps at substantial expense to the Court's power and legitimacy going forward. Given these options, Justice Jackson seems to have concluded that the only winning move was not to play.