Jed Rubenfeld

The Freedom of Imagination: Copyright’s Constitutionality

II. THE SUPPOSED JUSTIFICATIONS OF COPYRIGHT’S FIRST AMENDMENT IMMUNITY ............................................................ 12 A. Powers as Trumps.......................................................................... 12 B. Ideas and Fair Use......................................................................... 13 1. The Idea of Expression ............................................................ 13 2. Free Speech and Fair Use....................................................... 16 C. Law and Economics ....................................................................... 21 D. The Property Intuition.................................................................... 24 1. Liability for Speaking .............................................................. 25 2. Private Power over Public Speech .......................................... 27

The Anti-Antidiscrimination Agenda

People are pretty sure there is something going on in constitutional law these days, but they don’t know what it is. Since about 1995, the Supreme Court has issued groundbreaking decisions on so many subjects—for example, the commerce power, affirmative action, the Eleventh Amendment, Section 5 of the Fourteenth Amendment, and expressive association—that observers are beginning to step back from the various doctrinal debates to see if a bigger picture is emerging. One recent symposium asked whether constitutional law was undergoing a “ sea change,” as opposed to minor modifications in disparate areas. 1 Those who sympathize with the Court’s decisions have seen a new “ textualism” at work; 2 critics have claimed, on the contrary, that a new “ judicial activism,” especially in the area of federalism, can be seen below the recent tectonic shifts. 3

Laying It on the Line: A Dialogue on Line Item Vetoes and Separation of Powers

In this Dialogue, constitutional pundits Confident and Doubtful debate the Line Item Veto Act of 1996. They wrangle about the application of the Article I, § 7 process to the Act, the relevance of the legislative bargaining process to its constitutionality, and the merits of formalism and functionalism. As Confident becomes No-Longer-SoConfident, Doubtful proposes a way to reconcile the seemingly irreconcilable “formalist” and “functionalist” Supreme Court decisions. Marshalling the constitutional text for support, Doubtful argues that the Court should take a checks and balances approach to congressional delegations of power to the executive, while maintaining a rigorous separation of powers review of Article I powers.