Law Commons^™

‘‘Appearance Of Corruption’’: Linking Public Opinion And Campaign Finance Reform, Douglas M. Spencer, Alexander G. Theodoridis

Publications

At present, campaign finance regulations may only be justified if their primary purpose is to prevent quid pro quo corruption or the appearance of corruption. References to the ‘‘appearance of corruption’’ are ubiquitous in campaign finance decisions, yet courts have provided very little guidance about what the phrase means. In this article, we report findings from a broadly representative national survey in which we (1) directly ask respondents to identify behaviors that appear politically corrupt, and (2) indirectly measure perceptions of corruption using a novel paired-choice conjoint experiment asking respondents to choose which of two randomly generated candidates are more …

Making Litigating Citizenship More Fair, Ming H. Chen

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No abstract provided.

Narrowly Tailoring The Covid-19 Response, Craig Konnoth

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No abstract provided.

Do Abolitionism And Constitutionalism Mix?, Aya Gruber

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No abstract provided.

Powerful Speakers And Their Listeners, Helen Norton

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In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have …

Recording As Heckling, Scott Skinner-Thompson

Publications

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, …

The Statutory Separation Of Powers, Sharon B. Jacobs

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Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis …

A Constitution For The Age Of Demagogues: Using The Twenty-Fifth Amendment To Remove An Unfit President, Paul F. Campos

Publications

This Article argues that, properly understood, the 25th Amendment is designed to allow the executive and legislative branches, working together, to remove a president from office when it becomes evident that the person elevated to that office by the electoral process is manifestly unsuited for what can, without exaggeration, be described as the most important job in the world.

It argues further that the first two years of Donald Trump’s presidency have provided a great deal of evidence for the proposition that President Trump has in fact demonstrated the requisite level of fundamental unfitness for the office that would justify …

Pregnancy And The First Amendment, Helen Norton

Publications

Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear.

If the government funds your clinic’s program, the U.S. Supreme Court has held that it does not violate the First Amendment’s Free Speech Clause when it forbids your health-care provider from offering you information about available abortion services. Nor does the government violate the Free Speech Clause, the Court has held, when …

Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer

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No abstract provided.

The First Queer Right, Scott Skinner-Thompson

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Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.”

Decades before the Supreme Court would …

Government Lies And The Press Clause, Helen Norton

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This essay considers a particular universe of potentially dangerous governmental falsehoods: the government's lies and misrepresentations about and to the press.

Government's efforts to regulate private speakers' lies clearly implicate the First Amendment, as many (but not all) of our own lies are protected by the Free Speech Clause. But because the government does not have First Amendment rights of its own when it speaks, the constitutional limits, if any, on the government's own lies are considerably less clear.

In earlier work I have explored in some detail the Free Speech and Due Process Clauses as possible constraints on certain …

Robotic Speakers And Human Listeners, Helen Norton

Publications

In their new book, Robotica, Ron Collins and David Skover assert that we protect speech not so much because of its value to speakers but instead because of its affirmative value to listeners. If we assume that the First Amendment is largely, if not entirely, about serving listeners’ interests—in other words, that it’s listeners all the way down—what would a listener-centered approach to robotic speech require? This short symposium essay briefly discusses the complicated and sometimes even dark side of robotic speech from a listener-centered perspective.

Excavating The Forgotten Suspension Clause, Helen Norton

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No abstract provided.

Preclusion Law As A Model For National Injunctions, Suzette M. Malveaux

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No abstract provided.

Panel 1: Robotic Speech And The First Amendment, Bruce E. H. Johnson, Helen Norton, David Skover

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Moderator: Professor Gregory Silverman.

Book discussed: Ronald L. Collins & David M. Skover, Robotica: Speech Rights and Artificial Intelligence (Cambridge Univ. Press 2018).

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

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Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel

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The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years.

At …

Equal Protection Under The Carceral State, Aya Gruber

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McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

The Government's Manufacture Of Doubt, Helen Norton

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“The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments themselves sometimes seek to manufacture …

Privacy's Double Standards, Scott Skinner-Thompson

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Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort …

Government Speech And The War On Terror, Helen Norton

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The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

Authorship, Disrupted: Ai Authors In Copyright And First Amendment Law, Margot E. Kaminski

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Technology is often characterized as an outside force, with essential qualities, acting on the law. But the law, through both doctrine and theory, constructs the meaning of the technology it encounters. A particular feature of a particular technology disrupts the law only because the law has been structured in a way that makes that feature relevant. The law, in other words, plays a significant role in shaping its own disruption. This Essay is a study of how a particular technology, artificial intelligence, is framed by both copyright law and the First Amendment. How the algorithmic author is framed by these …

Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux

Publications

This essay is a response to Professor Samuel Bray’s article proposing a blanket prohibition against injunctions that enjoin a defendant’s conduct with respect to nonparties. He argues that national injunctions are illegitimate under Article III and traditional equity and result in a number of difficulties.

This Response argues, from a normative lens, that Bray’s proposed ban on national injunctions should be rejected. Such a bright-line rule against national injunctions is too blunt an instrument to address the complexity of our tripartite system of government, our pluralistic society and our democracy. Although national injunctions may be imperfect and crude forms of …

Privacy And The Right To Record, Margot E. Kaminski

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Many U.S. laws protect privacy by governing recording. Recently, however, courts have recognized a First Amendment “right to record.” This Article addresses how courts should handle privacy laws in light of the developing First Amendment right to record.

The privacy harms addressed by recording laws are situated harms. Recording changes the way people behave in physical spaces by altering the nature of those spaces. Thus, recording laws can be placed within a long line of First Amendment case law that recognizes a valid government interest in managing the qualities of rivalrous physical space, so as not to allow one person’s …

An Expressive Theory Of Privacy Intrusions, Craig Konnoth

Publications

The harms of privacy intrusions are numerous. They include discrimination, reputational harm, and chilling effects on speech, thought, and behavior. However, scholarship has yet to fully recognize a kind of privacy harm that this article terms "expressive."

Depending on where the search is taking place and who the actors involved are--a teacher in a school, the police on the street, a food inspector in a restaurant--victims and observers might infer different messages from the search. The search marks the importance of certain societal values such as law enforcement or food safety. It can also send messages about certain groups by …

Cognitive Competence In Executive-Branch Decision Making, Anna Spain Bradley

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The decisions Presidents and those operating under their authority take determine the course of our nation and the trajectory of our lives. Consequently, understanding who has the power and authority to decide has captured both the attention of legal scholars across a variety of fields for many years and the immediate worry of the public since the 2016 Presidential election. Prevailing interventions look for ways that law can offer procedural and institutional reforms that aim to maintain separation of powers and avoid an authoritarian regime. Yet, these views commonly overlook a fundamental factor and a more human one: the individuals …

Performative Privacy, Scott Skinner-Thompson

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Broadly speaking, privacy doctrine suggests that the right to privacy is non-existent once one enters the public realm. Although some scholars contend that privacy ought to exist in public, “public privacy” has been defended largely with reference to other, ancillary values privacy may serve. For instance, public privacy may be necessary to make the freedom of association meaningful in practice.

This Article identifies a new dimension of public privacy, supplementing extant justifications for the right, by arguing that many efforts to maintain privacy while in “public” are properly conceptualized as forms of performative, expressive resistance against an ever-pervasive surveillance society. …

Checking The Government’S Deception Through Public Employee Speech, Helen Norton

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No abstract provided.

The Wages Of Genetic Entitlement: The Good, The Bad, And The Ugly In The Rape Survivor Child Custody Act, Jennifer S. Hendricks

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This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to …