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Abstract: Professor Hamburger's Response to my main contribution to this Symposium usefully highlights the differences between our perspectives on the constitutionality of Institutional Review Board ("IRB") regulations. He identifies two crucial points of substantive disagreement: (1) whether IRB regulations restrict speech or conduct; and (2) whether these regulations merely constitute funding conditions or instead directly impose legal obligations. In addition, Hamburger describes an important difference in our styles of legal analysis: whereas he focuses on what the law should be, I am much more interested in trying to figure out what the law actually is in several difficult and uncertain areas of constitutional law relevant to this inquiry. But rather than advance his position, Hamburger's Response actually serves to underscore the implausibility of his claim that IRB regulations impose facially unconstitutional restrictions on speech. This brief Reply will address, in turn, the two substantive points as well as this crucial difference in our mode of analysis.
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