This Article argues, however, that the most important problem underlying this case confusion is inherent in the widely utilized constitutional standard of strict scrutiny. Strict scrutiny typically requires a compelling governmental interest, ―narrow tailoring,‖ and some causal relation between the regulation and the compelling interest. The crucial point, though, is that, as this Article documents, each of these elements lends itself to a surprising degree of arbitrariness, judicial subjectivity, uncontrollable complexity, and sheer impracticality. The Article works through these problems, both in the context of electoral lies and much more broadly, and considers two significant possible reforms of standard versions of the judicial strict scrutiny test.

Part I examines the history of federal probation, focusing on the issue of judicial delegation of authority to probation officers within the context of Article III. Part II expands upon this examination by exploring the current disagreement among the circuits with regard to the amount of discretionary authority that they permit courts to delegate to probation officers. Part II also examines probation officers‘ need for flexibility when dealing with offenders. Part III presents an example of how some states have dealt with the delegation controversy and discusses how that model might be helpful in finding a resolution on the federal level. Finally, Part IV presents a workable solution to the problem, directed both at the probation conditions specifically mentioned in the case law and more generally at the overarching necessity for probation officer discretion to respond to offenders under supervision. This Note concludes by emphasizing the need for uniformity in the level of delegation across circuits in order to achieve consistency in sentencing and efficiency within the federal courts.

This Article situates the Commerce Clause and taxing power arguments that form the basis of the ACA litigation within the broader contexts of semisubstantive review and enactment cost manipulation, arguing that the application of these structural theories is an ordinary and effectual means of raising the political cost of libertarian infringements. The Article then considers three possible distinctions between the ACA case and the ordinary case of semisubstantive review and concludes that the only viable descriptive distinction is that the ACA case involves nonfundamental rather than fundamental liberty interests—the freedom of health and the freedom of contract. The Article argues that this distinction should not make a normative difference. If anything, the case for structural invalidation should be stronger when nonfundamental liberty interests are at stake because those are, by definition, the interests that the American legal system leaves to structural protection. If the Supreme Court invalidates the ACA on structural grounds, it can argue that it is merely safeguarding the safeguards of liberty.

With so many recent cases of suicide, school officials, legislators, teachers, and parents are struggling to curb cyberbullying among students without infringing their First Amendment rights. This Note addresses the uncertain legal boundaries that public school officials face in regulating online student speech and recommends anticyberbullying rules that schools constitutionally may apply to prevent and reduce both on- and off-campus cyberbullying.

This Note suggests that in establishing these rules, schools should maintain the distinction between on- and off-campus cyberbullying, by regulating on-campus cyberbullying in most circumstances and giving full First Amendment protection to exclusively off-campus cyberbullying in all circumstances. This approach leaves open ample avenues for schools to regulate the most common form of cyberbullying—that is, off-campus cyberbullying connected with on-campus in-person bullying. In dealing with this increasingly prevalent form of bullying, schools should be able to reach the off-campus element by regulating bullying as a whole. In doing so, schools will be able to create a safer school environment for cyberbullying victims without infringing on protected student speech rights.