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Doma And Diffusion Theory: Ending Animus Legislation Through A Rational Basis Approach, David J. Herzig

Law Faculty Publications

Same-sex couple rights are the topic of much discussion and debate. There are court challenges to the constitutionality of the Defense of Marriage Act (“DOMA”) as well as proposed marriage statutes. The message and the structure for the recognition of same-sex rights need to be modified. This Article proposes applying, for the first time in the area, modern sociology theory, specifically Diffusion Theory, to change how the message is delivered. Using Diffusion Theory to change the message frame will change judicial decisions. By using the backdrop of the Florida adoption statute, a comparison between the successful challenges to the Florida …

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Lawrence Rosenthal

Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.

This article offers a challenge to the purposivist account. It begins, …