Digital Commons Network^™

Our Conflicting Judgements About Pornography, Kent Greenfield

Kent Greenfield

No abstract provided.

How Much Does A Belief Cost?: Revisiting The Marketplace Of Ideas, Gregory Brazeal

Gregory Brazeal

Justice Oliver Wendell Holmes, Jr. is often credited with creating the metaphor of “the marketplace of ideas,” though he did not use the exact phrase and his argument for free speech was not based on distinctively economic reasoning. Truly economic investigations of the marketplace of ideas have progressed in step with developments and trends in the law and economics literature. These investigations have tended to be one-sided, with writers focusing primarily either on the production of ideas (for example, Posner) or their consumption (for example, behavioral law and economics), without considering in depth how producers and consumers interact. This may …

Affirmative Action As Government Speech, William M. Carter Jr.

Articles

This article seeks to transform how we think about “affirmative action.” The Supreme Court’s affirmative action jurisprudence appears to be a seamless whole, but closer examination reveals important differences. Government race-consciousness sometimes grants a benefit to members of a minority group for remedial or diversifying purposes. But the government may also undertake remedial or diversifying race-conscious action without it resulting in unequal treatment or disadvantage to non-minorities. Under the Court’s current equal protection doctrine, both categories of cases are treated as presumptively unconstitutional. Race-consciousness itself has become a constitutional harm, regardless of tangible effects.

Prior scholarship has suggested that the …

Changing The People: Legal Regulation And American Democracy, Tabatha Abu El-Haj

Tabatha Abu El-Haj

The world in which we live, a world in which law pervades the practice of democratic politics – from advance regulation of public assemblies to detailed rules governing elections – is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today. Exposing this history challenges two core assumptions driving the work …