Speaking Truth to Firepower: How the First Amendment Destabilizes the Second

Gregory P. Magarian

91 Texas L. Rev. 49

PDF Document

When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the right’s scope, limits, and content.  Following Heller, commentators routinely draw upon the First Amendment’s protections for expressive freedom to support their proposals for Second Amendment doctrine.  In this Article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment’s legal potency.  Professor Magarian first criticizes efforts to draw direct analogies between the First and Second Amendments, because the two amendments and their objects of protection diverge along critical descriptive, normative, and functional lines.  He then contends that longstanding debates about whether constitutional speech protections primarily serve collectivist or individualist purposes present a useful model for interpreting the Second Amendment.  The language of the Second Amendment’s preamble, which Heller all but erased from the text, compels a collectivist reading of the Second Amendment.  The individual right to keep and bear arms, contrary to the Heller Court’s fixation on individual self-defense, must serve some collective interest.  Many gun rights advocates have long urged that the Second Amendment serves a collective interest in deterring—and, if necessary, violently deposing—a tyrannical federal government.  That theory of Second Amendment insurrectionism marks another point of contact with the First Amendment, because constitutional expressive freedom serves the conceptually similar function of protecting public debate in order to enable dynamic political change.  Professor Magarian contends, however, that we should prefer debate to violence as a means of political change and that, in fact, the historical disparity in our legal culture’s attention to the First and Second Amendments reflects a long-settled choice of debate over insurrection.  Moreover, embracing Second Amendment insurrectionism would endanger our commitment to protecting dissident political speech under the First Amendment.  The Article concludes that our insights about the First Amendment leave little space for the Second Amendment to develop as a meaningful constraint on government action.

How Do We Redeem the Time?

Stephen M. Griffin

91 Texas L. Rev. 101

PDF Document

Professor Griffin reviews Jack M. Balkin’s most recent books, Living Originalism and Constitutional Redemption: Political Faith in an Unjust World.

Reconstruction and Resistance

Kermit Roosevelt

91 Texas L. Rev. 121

PDF Document

Professor Roosevelt reviews Jack M. Balkin’s most recent books, Living Originalism and Constitutional Redemption: Political Faith in an Unjust World.

Constitutional Redemption

Lawrence B. Solum

91 Texas L. Rev. 147

PDF Document

Professor Solum reviews Jack M. Balkin’s most recent books, Living Originalism and Constitutional Redemption: Political Faith in an Unjust World.

Resolving the Circuit Split on Defense Witness Immunity: How the Prosecutorial Misconduct Test Has Failed Defendants and What the Supreme Court Should Do About It

Nathaniel Lipanovich

91 Texas L. Rev. 175

PDF Document

In this Note, Nathaniel Lipanovich discusses the near impossibility of obtaining immunity for defense witnesses in federal criminal cases, and explores the need to expand defendants’ rights to obtain immunity for their witnesses.  He provides a statistical overview of the current state of defense witness immunity and identifies a split among the circuits.   Lipanovich offers an empirical overview of all the cases on the topic, details the approaches employed by the circuit courts, and suggests that the prosecutorial misconduct standard used in ten of the twelve circuits fails to provide adequate protection for the accused.  He then analyzes arguments on both sides of the matter before concluding that the Supreme Court, yet to rule on the issue, should expand a defendant’s right to obtain immunity for essential witnesses by adopting the Ninth Circuit’s Straub test for defense witness immunity.

Luddites No Longer: Adopting the Technology Tutorial at the Supreme Court

Karson Thompson

91 Texas L. Rev. 199

PDF Document

In this Note, Karson Thompson argues that the Supreme Court is ill-equipped to meet the challenges presented by rapidly changing technologies.  Thompson chronicles some of the Court’s recent technological troubles, and explains how the current system fails to bridge the Court’s technological gap.  He illuminates how the Court’s often Luddite existence damages the law as well as the Court itself.  Thompson’s proposed solution: the Supreme Court should implement a form of the “technology tutorial,” a highly malleable process used in patent litigation to educate generalist judges about complex technologies.  He argues that through the use of technology tutorials, the Justices could enhance their understanding of the technologies underlying many difficult cases, resulting in more accurate, defensible, and responsible decisions while simultaneously boosting the Court’s legitimacy.

Governments as Shadow Banks: The Looming Threat to Financial Stability

Viral V. Acharya
90 Texas L. Rev. 1745

PDF Document

Governments often have short-term horizons and are focused excessively on the level of current economic activity, disregarding whether financial-sector regulation designed to achieve it leads to long-term instability. Their short-term objective can be well served through policies governing competition and risk taking in the financial sector. By allowing excessive competition, providing downside guarantees, and encouraging risky lending for populist schemes, governments can create periods of intense economic activity fueled by credit booms. This way, governments effectively operate as “shadow banks” in the financial sector, a moral hazard that can have even more adverse consequences than risk-taking incentives of the financial sector. This government role appears to have been at the center of recent boom and bust cycles, especially in the housing sector in the United States through the presence of government-sponsored enterprises (Fannie Mae and Freddie Mac), and continues to pose a threat to financial stability.

Do Labrynthine Legal Limits on Leverage Lessen the Likelihood of Losses? An Analytical Framework

Andrew W. Lo & Thomas J. Brennan
90 Texas L. Rev. 1775

PDF Document

A common theme in the regulation of financial institutions and transactions is leverage constraints. Although such constraints are implemented in various ways—from minimum net capital rules to margin requirements to credit limits—the basic motivation is the same: to limit the potential losses of certain counterparties. However, the emergence of dynamic trading strategies, derivative securities, and other financial innovations poses new challenges to these constraints. We propose a simple analytical framework for specifying leverage constraints that addresses this challenge by explicitly linking the likelihood of financial loss to the behavior of the financial entity under supervision and prevailing market conditions. An immediate implication of this framework is that not all leverage is created equal, and any fixed numerical limit can lead to dramatically different loss probabilities over time and across assets and investment styles. This framework can also be used to investigate the macroprudential policy implications of microprudential regulations through the general-equilibrium impact of leverage constraints on market parameters such as volatility and tail probabilities.

The Emperor Has No Clothes: Confronting the D.C. Circuit’s Usurpation of SEC Rulemaking Authority

James D. Cox & Benjamin J.C. Baucom
90 Texas L. Rev. 1811

PDF Document

In The Emperor Has No Clothes: Confronting the D.C. Circuit’s Usurpation of SEC Rulemaking Authority, Professor James D. Cox of Duke University School of Law & Benjamin J.C. Baucom, recent law clerk to Justice Don R. Willett of the Supreme Court of Texas, argue “that the level of review invoked by the D.C. Circuit in Business Roundtable and its earlier decisions is dramatically inconsistent with the standard enacted by Congress.” They conclude “that the D.C. Circuit has assumed for itself a role opposed to the one Congress prescribed for courts reviewing SEC rules.”