Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 6 of 6
Full-Text Articles in Law
Constitutional Moral Hazard And Campus Speech, Jamal Greene
Constitutional Moral Hazard And Campus Speech, Jamal Greene
Faculty Scholarship
One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …
Irb Licensing, Philip A. Hamburger
Irb Licensing, Philip A. Hamburger
Faculty Scholarship
This chapter examines conflicting norms in the government's licensing of speech and the press on “human-subjects research” through institutional review boards (IRBs). It begins by discussing licensing and why the prohibition of it is so fundamental and prroceeds by providing an overview of the structure of institutional review board licensing. It then highlights the unconstitutionality of IRB laws, arguing that the use of IRBs violates the principles of academic freedom. It asserts that licensing of speech or the press was a method of controlling the press employed by the Inquisition and the Star Chamber, and the First Amendment unequivocally barred …
The Dogs That Did Not Bark: The Silence Of The Legal Academy During World War Ii, Sarah H. Ludington
The Dogs That Did Not Bark: The Silence Of The Legal Academy During World War Ii, Sarah H. Ludington
Faculty Scholarship
During World War II, the legal academy was virtually uncritical of the government’s conduct of the war, despite some obvious domestic abuses of civil rights, such as the internment of Japanese-Americans. This silence has largely been ignored in the literature about the history of legal education. This Article argues that there are many strands of causation for this silence. On an obvious level, World War II was a popular war fought against a fascist threat, and left-leaning academics generally supported the war. On a less obvious level, law school enrollment plummeted during the war, and the numbers of full-time law …
From The Classroom To The Courtroom: Intelligent Design And The Constitution, Jay D. Wexler
From The Classroom To The Courtroom: Intelligent Design And The Constitution, Jay D. Wexler
Faculty Scholarship
Although the Supreme Court of the United States has never developed a single clear test for determining what kinds of state action violate the Establishment Clause of the First Amendment, schools that attempt to teach or introduce intelligent design as a purportedly scientific alternative to evolution likely fall afoul of the First Amendment's commands. Under the Court's most relevant precedent, Edwards v. Aguillard, teaching intelligent design violates the Establishment Clause because, among other things, there is an enormous disconnect between the purpose of teaching intelligent design and its effect. Moreover, public school teachers do not possess any First Amendment right …
Getting Permission, Philip A. Hamburger
Getting Permission, Philip A. Hamburger
Faculty Scholarship
Institutional Review Boards ("IRBs") are the instruments of a system of licensing – a system under which scholars, students, and other researchers must get permission to do research on human subjects. Although the system was established as a means of regulating research, it regulates research by licensing speech and the press. It is, in fact, so sweeping a system of licensing speech and the press that it is reminiscent of the seventeenth century, when Galileo Galilei had to submit to licensing and John Milton protested against it. Accordingly, it is necessary to examine the constitutionality of IRB licensing and, more …
The Sedition Of Free Speech, Lee C. Bollinger
The Sedition Of Free Speech, Lee C. Bollinger
Faculty Scholarship
Several years ago, a story appeared in The New York Times which provided a graphic illustration of how the Soviet government manipulates the news about itself. Each year on May Day, the Times reported, the Soviet leadership poses for a photograph while standing atop the Lenin tomb in Red Square. In the year of the Times story, however, the photograph had undergone a number of noticeable alterations as it appeared in the various government-run media outlets. One official had been removed altogether, another had been positioned a bit closer to Brezhnev, some who had not in fact been present were …