The text of the First Amendment explicitly protects two foundational social institutions: religion and the press. Since 2021, however, the Supreme Court has increasingly granted one of these two institutions – religion – a status of heightened constitutional privilege. In contrast, current law treats the other First Amendment institution – the press – as wholly unexceptional. However, the press is defined – from newspapers to television and bloggers in pajamas to professional journalists – it receives no greater constitutional protections than any other speaker. The Court has essentially read the Press Clause out of the Constitution, voiding its specific textual commitment, despite the absence of any countervailing constitutional provision parallel to the Establishment Clause. Until religion law’s recent exceptional turn, the law’s treatment of religion and the press were in some sense parallel. Recently, they have diverged, as press law has not kept pace with changes in religion law. In this chapter, I argue that the press should be treated at least as constitutionally exceptional as religion, and I explore what such press exceptionalism might mean in practice.

If the press can claim rights different from those guaranteed to every speaker, it must be because we understand the Press Clause to serve constitutional values different from the freedom of speech clause and because these values require distinct forms of rights for their protection. In this short chapter, I explore four distinct constitutional values that at various times have been claimed to be uniquely served by the press: 1) the value of public discourse, 2) the Meiklejohnian value of distributing information, 3) the checking value, and 4) the value of the public sphere. Each of these values yields a different constitutional definition of the “press,” and each might imply a different array of rights that ought to accrue to the press. Although these values are distinct, the press may simultaneously serve one or more of them.

Social media and the internet are the most important changes in communication since the development of the printing press. They democratize the ability to reach a mass audience, but they can also quickly spread harmful information and threaten the viability of traditional media that are essential for newsgathering. Courts have thus far largely approached these media by applying existing doctrines of freedom of the press and freedom of speech. But these doctrines are often, though not always, inadequate to deal with the issues posed by social media and the internet. It is important to identify those areas where traditional doctrines are inadequate and to begin to develop new First Amendment and statutory approaches.

In this chapter we ask if people have rights to their social identities – in particular, their gender identities. We cash out what such gender identity rights entail by discussing the appropriate level of constitutional scrutiny to apply to laws that target transgender people.

This chapter considers the status of a constitutional “right to grow old” under the US Constitution. Understood as a “positive” right – ensuring a certain minimum quality of life to people as they face the challenges of aging – such a right may seem unavailing given the austerity in respect to such rights that many lawyers associate with the US constitutional tradition. This chapter shows this view to be premature, at least. Unlike the kinds of positive rights overtly rejected in prior cases, such as rights to certain forms of social welfare or to racial equality, a right to grow old contemplates social support for all of us, and not simply for a politically disfavored class. Moreover, many of the conventional objections to positive rights, grounded in the difficulty of disciplining them, can be overcome or mitigated through strategies that have proven effective in many courts around the world: proportionality review, polycentric constitutionalism, a “minimum core” approach, progressive realization, and remedial flexibility.

At some point, the necessary interpretation of vague, abstract, and nonspecific provisions in constitutions, including the United States Constitution, places appellate courts, including the United States Supreme Court, in a jurisprudential position very similar to the one they occupy when engaged in traditional common law analysis and lawmaking. Working out the specific doctrinal meaning of constitutional phrases such as “free speech,” “establishment of religion,” and “equal protection” is a jurisprudential task not unlike working out the specific doctrinal meaning of “duty,” “breach,” or “causation” in the common law of negligence.

This means that as a practical judicial matter, the development of constitutional law is often very similar in nature to traditional common law lawmaking. Thus, a court such as the United States Supreme Court can accurately be thought of as often operating like a common law court, despite the relative paucity of federal common law.

This chapter takes advantage of this insight to apply the nature of the paradigm shift from formalism to instrumentalism, and its many consequences, to the area of constitutional law. More specifically, it offers an example of instrumentalist common law analysis applied to the constitutional law free speech doctrine of prior restraint.

Federalism is a distinctive form of constitutional rule but one that has largely been neglected by both political and constitutional theory. Existing accounts of federalism tend to focus almost exclusively upon its institutional manifestation. What is lacking is an account of the common conceptual underpinnings that unite these various institutional forms within the genus of one constitutional idea. In this chapter Stephen Tierney argues that the core idea of federalism can only be arrived at by way of constitutional theory. Constitutional theory explains both how and why law is used to manage political power. Federal constitutions manage and transform political power for a discrete purpose that is fundamentally distinguishable from other constitutional forms. This chapter contends that federalism must be addressed as a specific genus of constitutional government for the modern state which, in the act of constitutional union, gives foundational recognition and accommodation to the state’s constituent territorial pluralism. The purpose of the federal constitution is to maintain the foundational relationship between pluralism and union through the creation and reconciliation of different orders of government. This marks a significant fork in the road between federal and unitary constitutionalism, not just in institutional terms but at the most fundamental level of constitutional identity and legitimacy.

Personalized pricing is a form of pricing where different customers are charged different prices for the same product depending on their ability to pay, based on the information that the trader holds of a potential customer. Pricing plays a relevant role in the decision-making process by the consumers, and a firm’s performance can be determined by the ability of the business entities to execute a pricing strategy accordingly. Further, pricing also determines the quality, value, and willingness to buy. Usually the willingness of a consumer depends on transparency and fairness.

Technological developments have enabled online sellers to personalize prices of the goods and services.

While statelessness remains a global phenomenon, it is a global issue with an Asian epicentre. This chapter situates the book within the context and multi-disciplinary scholarship on statelessness in Asia by reviewing the causes, conditions and/or challenges of statelessness. It recognizes statelessness in this region as a phenomenon beyond forced migration and highlights the arbitrary and discriminatory use of state power in producing and sustaining statelessness. The chapter reviews the ‘state of statelessness’ in Asia, including applicable international, regional and national legal frameworks. It also maps some of the core themes that emerge from the contributors’ examination of the causes and conditions of statelessness in Asia. These include: the relationship between ethnic, religious, cultural and linguistic diversity and statelessness; the legacies of colonialism; contemporary politics surrounding nation-building, border regimes and mobilities; as well as intersecting vulnerabilities. The chapter concludes with some preliminary thoughts on frameworks of analysis and future research agendas, including challenges and prospects for reform.

This chapter describes two areas of legal theory that consider when means-based adjustments to legal rules may not be desirable. Under one perspective, means-based adjustments designed for redistributive purposes should be reserved for the tax system alone, since introducing means-based adjustments to other legal rules would entail greater efficiency costs. A second literature considers the desirability of a legal system that is impartial, nondiscriminatory, and general in its application. Subjecting taxpayers to different legal rules based on means could also undermine these important criteria. This chapter considers how means-based adjustments to the tax compliance rules should be evaluated from each of these perspectives, and why they would be justified even in cases where means-based adjustments to other legal rules would not be.