Controversy has erupted across the country concerning sexually explicit books that are available to children in bookstores, schools, and libraries. Many have called for tough enforcement of obscenity laws, with some saying librarians and schoolteachers who distribute certain books to children should face jail time. Using four controversial books as examples, this Article takes today’s book wars as an opportunity to achieve two things. First, the Article explains the narrow circumstances in which the First Amendment permits the government to block the distribution of books to children due to concerns about the books’ prurient appeal. The Article’s second aim is broader and concerns an issue that has stymied courts in obscenity cases involving children and adults alike for nearly fifty years. In 1973, the Supreme Court held that the First Amendment places sexually explicit expressive works beyond the reach of obscenity restrictions if a reasonable person would say those works possess “serious literary, artistic, political, or scientific value.” When it comes to literary and artistic value, many have assumed the inquiry depends chiefly upon appraisals of aesthetic merit. But the lack of non-controversial criteria for making those appraisals can make that approach deeply problematic. This Article contends that, under the best reading of the First Amendment and the Court’s precedents, classifying a work’s value as literary, artistic, political, or scientific in nature is constitutionally irrelevant and assessments of aesthetic merit are unnecessary. Instead, the serious-value inquiry simply asks whether the author used the work to speak about one or more matters of public concern and whether the author spoke about those matters merely to create a pretext for publishing patently offensive, pruriently appealing content.

The 2020 race to represent Iowa’s Second Congressional District in the U.S. House of Representatives proved to be one of the closest federal elections in modern American history. When the race went to a recount, I had the honor of serving on the recount board for Johnson County, the second-largest county in the district. In Part I of this Essay, I briefly explain how we performed the recount. I particularly focus on the role that tabulating machines played in our work, a matter that proved to be contentious districtwide between the two campaigns’ leaders and on which the press’s reporting was sometimes inaccurate. In Part II, I turn to Iowa laws that require recount boards to disregard votes that appear on ballots bearing certain types of markings, as well as laws that limit the types of ballot markings that recount boards may count as valid votes. Using examples from ballots we encountered in Johnson County, I argue that some of these laws should be amended and others should be abandoned altogether.

The Supreme Court has never squarely addressed the First Amendment status of student-on-student verbal harassment at public institutions of higher education. Does the First Amendment permit public colleges and universities to discipline students on the grounds that their speech has created a hostile learning environment for others on campus? If so, what is the analysis underlying that constitutional judgment and what are the requisite hallmarks of such an environment? Does it matter whether a student’s speech created the hostile environment on its own or whether it wielded that power only by virtue of its combination with the speech of other students? Does it matter whether the speech was directed to those for whom it created the hostile environment or whether the speech was merely overheard? This Article addresses those questions. To frame the First Amendment discussion, the Article first provides a statute-centered description of harassment and hostile learning environments; the description is a familiar one but is nevertheless often mischaracterized. The Article then argues that, if the Court’s Speech Clause jurisprudence were insistently originalist in nature, we could confidently say that the First Amendment gives public colleges and universities broad latitude to discipline students for speech that, in administrators’ judgment, is antithetical to important institutional values. But the Court today rejects key analytic touchstones that an originalist methodology would likely favor. Using the modern Court’s preferred framework, the Article then advances arguments that rely heavily upon both tradition and modern free-speech values. In some circumstances, student speech that creates hostile learning environments for classmates should be deemed categorically excluded from the First Amendment’s protection. In other circumstances, however, the First Amendment should be deemed to shield students from discipline unless they make their harassing statements with a mens rea akin to defamation law’s actual malice.

The National Rifle Association ("N.R.A.") is urging states to declare in their constitutions that the right to keep and bear arms is fundamental and that any restraint on that right is invalid unless it meets the stringent demands of strict scrutiny. Three states have already embraced the N.RA.'s proposal and Iowa is one-third of the way toward becoming the fourth. In this brief Essay, I make two overarching arguments. First, contrary to the apparent aims of the N.R.A. and its legislative partners, the proposed strict-scrutiny amendments leave courts with significant latitude to define the scope of the fundamental constitutional right to which the strict-scrutiny standard attaches. Second, courts can reasonably conclude that the right protected by these amendments is narrow in scope, encompassing little or no more than what federal courts today strongly protect under the Second Amendment. Far from securing the sweeping reform that many may desire and others may fear, therefore, the N.R.A.'s proposal may ultimately prove merely to ensure that, at the state level, the fundamental gun rights that receive powerful judicial protection cannot be reduced below the federal floor that the United States Supreme Court has already clearly established.

Commissioned by the American Judges Association, this paper briefly summarizes the U.S. Supreme Court's most significant rulings in civil cases during the October 2018 Term.

Editorialists, political leaders, scholars, and others sometimes accuse the U.S. Supreme Court’s members of hypocrisy, especially when they believe that divisions among the Justices are the product of partisan loyalties rather than good-faith differences in impartial legal judgment. Due to these hypocrisy charges’ delegitimizing potential, they pose a serious threat to the Court’s legal and moral authority. In legal circles and elsewhere, however, one finds a remarkable lack of clarity about what hypocrisy is, the forms it can take, and the moral precepts that define its boundaries. As a result, participants in public discourse about the Court can easily find themselves talking past one another. To be assured that the Justices are not hypocrites with respect to their commitment to impartiality, for example, is it sufficient to be persuaded that the Justices are not trying to deceive us when they say they do not regard themselves as mere politicians in robes, or is more required?In this Article, I first offer a conceptual framework for thinking about hypocrisy of all sorts. I argue that hypocrisy appears in three principal forms—Faking Hypocrisy, Concealing Hypocrisy, and Gerrymandering Hypocrisy—and I identify the anti-equality thread that runs through all of them. I then show how this three-part framework can deepen our thinking about the work of the Court. With respect to the Justices’ pledge to be impartial, for example, I argue that there are circumstances in which (as many commonly assume) the Justices can be guilty of hypocrisy only if they are schemers bent on duping the American public into believing they are unbiased. In other circumstances, however, the Justices can be guilty of hypocrisy even if they sincerely believe they are doing what the law requires.

Review of: Creating the Land of Lincoln: The History and Constitutions of Illinois, 1778-1870 by Frank Cicero Jr.

Commissioned for publication in the American Judges Association's Court Review, this paper provides an overview of the most broadly significant rulings by the U.S. Supreme Court in civil cases during the 2017-2018 Term.

On the conventional account of American voter behavior, voters assess policy options in a range of areas, they develop preferences among those options, and then they bring those preferences to bear when casting their ballots on Election Day. In this symposium contribution, I begin by pointing out ways in which this conventional belief in a policy-driven electorate undergirds important constitutional doctrines in the areas of voting, speech, and federalism. I then examine the substantial body of evidence indicating that electoral behavior often has little to do with voters' autonomous evaluation of policy options, and has much to do with the belief- and behavior-shaping power of voters' social identifications, particularly those of a politically partisan variety. I close by reflecting on ways in which those of us who teach and write about the law might respond to this continually growing body of empirical work.

Commissioned by the American Judges Association, this article provides an overview of the most significant civil cases decided by the Supreme Court during the October 2016 Term.

Commissioned by the American Judges Association, this article provides an overview of the most significant civil cases decided by the Supreme Court during the October 2015 term.

In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point for empirical studies of the Court) or from a failure to take seriously the importance of attending to cases’ details. Whatever the difficulties’ sources, the study’s uniform indictment of the Court’s current conservatives is manifestly flawed. More broadly, the study and its largely uncritical public reception -- as well as the authors' initial response to this critique of their work -- offer important cautionary lessons not only for those who study in-group bias, but also for all who conduct or rely upon empirical analyses of the justices’ ideological voting patterns.

On January 25, 2014, the University of Iowa College of Law and the Iowa Law Review lost one of their most loyal champions and most distinguished alumni. Professor Randy Bezanson died that Saturday, following a battle with cancer that spanned many more years than his doctors had initially believed possible. I count myself among the countless who are better for having known him.Randy's time at the Iowa College of Law began thirty years earlier than mine. Holding an undergraduate degree in business from Northwestern University, Randy returned to his home state for law school, enrolling at Iowa in the fall of 1968. Thinking that he would specialize in mergers, he emphasized courses in business and taxation.1 Constitutional law-the field to which he later would devote such a large proportion of his professional energy-was not yet chief among his passions, nor did he yet expect to spend his career in legal education.2 He nevertheless built the kind of record that would open many doors. He served as Editor in Chief of the Iowa Law Review, for example, an experience that he later regarded as central to his legal education. A paper that he wrote for Professor Arthur Bonfield was published in the Drake Law Review,3 marking the first entry in what would become an enviably rich bibliography. In the spring of 1971, he graduated first in his class.Randy leftIowa City to take two prestigious clerkships in Washington, D.C., first with Judge Roger Robb on the United States Court of Appeals for the District of Columbia Circuit and then with Justice Harry Blackmun on the United States Supreme Court. It was during his time in Washington-as he immersed himself in constitutional controversies and listened to other clerks talk about their own professional ambitions-that Randy began to think seriously about a career in teaching.4 A number of law schools took an interest in him, but his alma mater had the good sense to intervene: Dean Larry Blades telephoned, saying that he had been instructed to make sure Randy didn't go anywhere else.5 Randy returned to the Iowa College of Law as a faculty member in 1973, just two years after receiving his degree.Given the breadth of Randy's talents, it is not surprising that from time to time he would be lured to leadership positions outside the classroom. From 1976 to 1977, he worked as an assistant to then-University President Willard Sandy Boyd, for whom the College of Law's present building would later be named. President Boyd called Randy to service again in 1979, naming him Vice President for Finance and University Services, a position that Randy happily held until 1984. The Washington and Lee University School of Law came calling soon thereafter, hiring Randy to serve as Dean beginning in 1988. Randy treasured his time in Lexington and remained a faithful promoter of WL he served on my Promotion and Tenure Committee; he read and commented on nearly all of my drafts; with our mutual friend Shelly Kurtz, he counseled me on a host of career matters; I quickly joined the small group of Randy, Shelly, Arthur, and a few others who ventured out of the building for lunch at least once or twice a week, until Randy's health made the faculty lounge a more sensible daily choice; we spoke frequently about constitutional law, a subject we both taught; and he strongly encouraged me to say yes when the Iowa Law Review invited me in 2001 to become its faculty advisor. …

Commissioned by the American Judges Association, this article provides an overview of the most significant civil cases decided by the U.S. Supreme Court during the 2013-14 Term.

In its ruling last Term in McCutcheon v. FEC, the Court struck down federal campaign-finance laws that limited the aggregate amount of money that Shaun McCutcheon and other would-be campaign donors could give to variety of political committees and to individuals running for Congress in states and districts other than their Chief Justice Roberts began his opinion for the plurality by declaring that [t]here is no right more basic in our democracy than the right to participate in electing our political leaders. Retired justice John Paul Stevens has argued that the Court's ruling in McCutcheon is a grossly incorrect decision because (among other things) the case was about picking other people's congressmen, not your own. In this essay for the University of Chicago Law Review Dialogue, I argue two things. First, I contend that Stevens's criticism of McCutcheon's opening line is at odds with the understanding of American federalism that Stevens championed while on the Court and is far more compatible with conception of federalism that he explicitly rejected. Second, even looking at matters through the federalism lens that Stevens now endorses, such that one regards McCutcheon as trying to influence the selection of other people's representatives, I argue that any effort to restrict McCutcheon's and other long-armed donors' campaign spending on those grounds would face an uphill First Amendment climb.

The Supreme Court’s 2012-2013 Term likely will be remembered best for the Justices’ landmark ruling in United States v. Windsor, striking down Section 3 of the Defense of Marriage Act, and for the jurisdictional ruling in Hollingsworth v. Perry that helped to reopen the door for same-sex marriages in California. Many will also long remember Shelby County v. Holder, invalidating Section 4 of the Voting Rights Act and thereby freeing a number of states and localities from the pre-clearance requirements under which they had operated for decades. Crowded behind those headline-dominating decisions are a host of other broadly consequential rulings, on issues ranging from racial preferences in higher education, to ratcheting up the requirements for voter registration, to seeking standing in federal court on the basis of anticipated injuries. Commissioned by the American Judges Association for an audience of state and federal judges and for readers with an interest in the work those judges do, this paper briefly reviews the Court’s most noteworthy civil decisions of the Term.