Step into any conversation about campaign finance regulation in 2016, and you’re likely to encounter the view that while the Supreme Court is well on its way to dismantling most of the legal framework that has governed money in elections for nearly forty years, disclosure requirements remain on secure constitutional footing. For many advocates of campaign finance regulation, this is a rare source of comfort in a landscape that is otherwise relentlessly bleak. But it is a decidedly second-best alternative to more robust modes of regulation. I hope in this short piece to strike a cautionary note: to suggest that, for too long, advocates of campaign finance regulation have both taken disclosure for granted and failed to take disclosure sufficiently seriously. This is understandable; until recently, disclosure questions nearly always arose in the context of challenges to other campaign finance regulations, and disclosure has invariably been treated, by both courts and advocates, as something of an afterthought. But in a dramatically shrunken regulatory landscape, there is an increasingly urgent need to develop a stronger and more fully realized set of arguments for the constitutionality of disclosure—not only with an eye to potentially expanding existing disclosure requirements, but also in order to strengthen the constitutional foundations of the existing disclosure regime.

Recently, some have argued that universities “are in a double bind.” They are required under Title VI to ensure that their campuses do not create a hostile environment for women and minorities. On the other hand, they face liability for violating students’ First Amendment rights if they act to punish students whose speech led to a hostile environment. In this essay, I argue that addressing hostile environment discrimination fits within the school’s authority to restrict speech under its pedagogical responsibility to prevent disruptions. Regardless of whether there is a noisy uproar or the threat of violence, by definition, hostile environment discrimination interferes with the right of students to access the educational program because it creates exclusion. This is a disruption in the most fundamental sense of Tinker v. Des Moines Independent Community School District, and a university must have the authority to provide redress.

Proposed Rule 37(e) of the Federal Rules of Civil Procedure is the latest effort to respond to the tendency of large data producers to over-preserve electronic information as a protection against the common law of spoliation sanctions and procedural rules regarding electronic discovery. The proposed rule’s failure to properly differentiate a breach of the duty to preserve from bad faith, however, threatens to negate its otherwise promising reforms.