[Pages 1-80]
COPYRIGHT AS A MODEL FOR FREE SPEECH LAW: WHAT COPYRIGHT HAS IN COMMON WITH ANTI-PORNOGRAPHY LAWS, CAMPAIGN FINANCE REFORM, AND TELECOMMUNICATIONS REGULATION
Rebecca Tushnet*

Abstract:  Copyright raises real and troubling free speech issues, and standard responses to those concerns are inadequate. This Article aims to put copyright in the context of other free speech doctrine. Acknowledging the link between copyright and free speech can help determine the proper contours of a copyright regime that both allows and limits property rights in expression, skewing the content of speech toward change.

[Pages 81-122]
PRECEDENT AND JUDICIAL POWER AFTER THE FOUNDING
Polly J. Price*

Abstract:  A recent decision by a panel of the Court of Appeals for the Eighth Circuit enlivened the controversy over court rules that prevent citation to unpublished opinions when it held that the Circuit’s non-citation rule violates Article III of the United States Constitution. This Article affirms the view that judicial power includes a doctrine of precedent, without relying solely upon an originalist interpretation of Article III. This approach identifies a consistent “core idea” of precedent that courts must consider how a similar case was decided in the past, even where there are varying ideas about the binding nature of that precedent. A long-standing tradition has viewed precedent as a necessary starting point for judicial decision. When a court departs from this core idea, it violates the essential function of the judiciary to treat like cases alike or explain the difference.

[Pages 123-172]
THE DORMANT FOREIGN AFFAIRS POWER: CONSTITUTIONAL IMPLICATIONS FOR STATE AND LOCAL INVESTMENT RESTRICTIONS IMPACTING FOREIGN COUNTRIES
Carol E. Head

Abstract:  State and local pension funds have billions of dollars invested in global markets, and often use these assets to pressure foreign nations to change their human rights policies. Social investing practices and other non-social investment decisions impacting foreign nations may be impermissible incursions into the federal government’s exclusive power over foreign policy under the Dormant Foreign Affairs Power, an implied constitutional restriction on state activity. This Note argues that in this era of global markets, a blanket prohibition against criticism of foreign nations does not allow states to fulfill their investment obligations. This Note calls for a flexible test to determine the constitutionality of state action—a test that considers the federal government’s need for uniformity in foreign policy with the need of state governments to be global economic actors.

[Pages 173-206]
SPEECH OR NOT: APPLYING ELECTION LAW STRICT SCRUTINY TO CAMPAIGN FINANCE REGULATIONS
Michael Marcucci

Abstract:  This Note will argue that even if money is not speech for First Amendment purposes, campaign contributions and expenditures are still crucial elements of the electoral process and ought to receive some constitutional protection. The United States Supreme Court has in its own election law jurisprudence the analytical tools required to strike a proper balance between the constitutional necessity of a free electoral system and the need to keep elections fair, open, honest and free from corruption. This Note will argue that under the Elections Clause and Qualifications Clause of the United States Constitution, Congress has neither plenary power to regulate campaign finances nor is Congress absolutely barred from enacting all but the most minimal restrictions. Rather, the Supreme Court should apply a balancing test to determine whether a particular campaign finance regulation violates the basic principles of the electoral system.

[Pages 207-256]
INTERPRETING THE FEDERAL TRADEMARK DILUTION ACT OF 1995: THE LOGIC OF THE ACTUAL DILUTION REQUIREMENT
Jonathan Mermin

Abstract:  The Federal Trademark Dilution Act of 1995 creates a cause of action for trademark dilution. In contrast to trademark infringement law, which requires a showing of consumer confusion about the source or affiliation of goods and services, dilution law protects the distinctive quality and selling power of the trademark itself, even if consumers are not confused. The Fourth Circuit Court of Appeals, emphasizing the statute’s requirement that the defendant’s trademark “causes dilution” of the distinctive quality of an established trademark, has required evidence of an actual diminution of the established trademark’s selling power. The Second Circuit Court of Appeals has read the statute to require just a likelihood of dilution, and has held that circumstantial evidence of probable dilution is enough to prove a violation. This Note argues that the Fourth Circuit’s interpretation is more consistent with the text of the statute and with the public interest in trademark law.