Among the most prominent examples of government speech is a state’s choice to fly—or not to fly—the Confederate flag above or adjacent to its capitol. The recent vigorous public debates in South Carolina and elsewhere across the country reveal the potential power of governments’ expressive choices, including their power to inform, celebrate, cajole, wound, and disparage. Indeed, any government’s expressive choices expose a great deal about its values, principles, and priorities—which in turn generate important public conversations. For these reasons, the Supreme Court has held that political accountability (rather than the Free Speech Clause) remains our recourse when the government makes expressive choices with which we disagree: “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech.” [...]

In both Bond v. United States and Yates v. United States, the Supreme Court reversed federal criminal convictions. Neither defendant’s conduct was constitutionally protected; there were no procedural irregularities in either trial, no vagueness or overbreadth issues, and no police misconduct. Instead, each case involved prosecuting a small-time individual with a big-time statute: In Bond, the federal government used the Chemical Weapons Convention Implementation Act of 1998 against a “jilted wife.” In Yates, it unleashed the Sarbanes-Oxley Act of 2002 on a mischievous fisherman. Both proceedings raised concerns about overcriminalization that implicitly drove the Court’s analysis in a new direction. [...]

The Supreme Court recently granted certiorari in Montgomery v. Louisiana to determine whether the Court’s holding in Miller v. Alabama, that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders,” applies retroactively to cases on collateral review. That question is important in its own right, as we have previously discussed. But the Court also ordered argument on an additional, threshold question—one that, although perhaps less “sexy” than the merits question, may have profound implications for the scope of the Due Process Clause and retroactivity jurisprudence: Does the Supreme Court have jurisdiction over the case at all? That is, does Montgomery’s claim, which was nominally rejected on state law grounds by the Louisiana Supreme Court, even raise a federal question?

Several months ago, the world became obsessed with a dress. Depending on the angle from which you looked at it and, more importantly, how your eyes perceived certain colors, the dress appeared white and gold . . . or blue and black. Tens of millions of people viewed and debated it, and nearly everyone who saw it as white and gold (or blue and black) could not begin to imagine how someone else could perceive it in such a radically different way.

In a recent article, Litigation Isolationism, Pamela Bookman identifies a phenomenon that similarly changes hue depending on one’s perspective or disposition. Bookman argues that four doctrines (personal jurisdiction, forum non conveniens, abstention comity, and the presumption against extraterritoriality) conspire to make U.S. courts significantly less hospitable to transnational litigation. In Bookman’s assessment, such isolationism is counterproductive because the doctrines often fail to vindicate their stated goals of respecting the separation of powers, international comity, and defendants’ interests. The article is crisp and elegant. It synthesizes disparate areas of law to elucidate a broader development in civil litigation. And it makes an important contribution to a growing literature on how the United States, once a magnet for transnational litigation, has increasingly closed its doors to such cases. [...]