Law Commons^™

Government Speech And Political Courage, Helen Norton

Publications

This short essay addresses Walker v. Texas Div., Sons of Confederate Veterans, Inc., in which a divided Court upheld Texas's rejection of the Sons of Confederate Veterans' request for a specialty license plate that featured the Confederate flag. Although it agrees with the majority that specialty license plates can -- and often do -- reflect the government's own expression that the government should remain free to control without running afoul of the First Amendment, it argues that the Walker Court missed an important opportunity to refine its government speech doctrine. Not only has the Court yet to settle on a …

Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe

Publications

How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in the Constitution’s own Article V. This is so, they claim, because provisions adopted by supermajority vote are more likely to be substantively good. The original Constitution was ratified in just that way, they say, and subsequent changes should be implemented similarly. McGinnis and Rappaport also contend that this substantive goodness is preserved best by a mode of originalist interpretation. In this Review, we press two main arguments. …

Corporate Political Contributions As Bad Faith, Joseph K. Leahy

University of Colorado Law Review

A shareholder who objects to a corporate political contribution can file a derivative lawsuit to challenge that contribution as a breach of management's duty of loyalty to the corporation. Such a lawsuit will face long odds, however, if it is founded upon a traditional theory for breach of the duty of loyalty, like waste or self-dealing. Yet, there is a better theory for a shareholder to employ when filing suit to challenge a corporate political contribution: bad faith.

Bad faith is a better basis for challenging a corporate political contribution than either waste or self-dealing because bad faith is a …

A Few Thoughts On Free Speech Constitutionalism, Helen Norton

Publications

No abstract provided.

The Government's Lies And The Constitution, Helen Norton

Publications

Governments lie. They do so for many different reasons to a wide range of audiences on a variety of topics. Although courts and commentators have extensively explored whether and when the First Amendment permits the government to regulate lies told by private speakers, relatively little attention has yet been paid to the constitutional implications of the government's intentional falsehoods. This Article helps fill that gap by exploring when, if ever, the Constitution prohibits our government from lying to us.

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political …