Law Commons^™

The Supreme Court And The Pro-Business Paradox, Elizabeth Pollman

All Faculty Scholarship

One of the most notable trends of the Roberts Court is expanding corporate rights and narrowing liability or access to justice against corporate defendants. This Comment examines recent Supreme Court cases to highlight this “pro-business” pattern as well as its contradictory relationship with counter trends in corporate law and governance. From Citizens United to Americans for Prosperity, the Roberts Court’s jurisprudence could ironically lead to a situation in which it has protected corporate political spending based on a view of the corporation as an “association of citizens,” but allows constitutional scrutiny to block actual participants from getting information about …

The New Editors: Refining First Amendment Protections For Internet Platforms, Mailyn Fidler

Notre Dame Journal on Emerging Technologies

This Article envisions what it would look like to tailor the First Amendment editorial privilege to the multifaceted nature of the internet, just as courts have done with media in the offline world. It reviews the law of editorial judgment offline, where protections for editorial judgment are strong but not absolute, and its nascent application online. It then analyzes whether the diversity of internet platforms and their functions alter how the Constitution should be applied in this new setting. First Amendment editorial privilege, as applied to internet platforms, is often treated by courts and platforms themselves as monolithic and equally …

United States Food Law Update: Shrouded By Election-Year Politics, State Initiatives And Private Lawsuits Fill In The Gaps Created By Congressional And Agency Ossification, A. Bryan Endres, Lisa R. Schlessinger, Rachel Armstrong

Journal of Food Law & Policy

Observers of food law in the 2012 presidential election year witnessed a dramatic slowing of federal initiatives-perhaps arising from a desire by both Congress and the administration to avoid upsetting critical constituent groups during a year seemingly dominated by campaigns and endless talking points. For example, Congress failed to take action on a unique compromise between what some had considered mortal enemies-the Humane Society of the United States and United Egg Producers-that would implement a federal animal welfare standard for laying hens in return for abandoning ballot measures in various states. Similarly, the FDA waited until the early days of …

First Amendment Knowledge And Competence In United States Residents, Cynthia J. Najdowski, Kimberly M. Bernstein

Psychology Faculty Scholarship

Lacking adequate knowledge about one's rights could inhibit the likelihood of exercising one's rights or lead one to unwittingly violate laws that place legitimate limits on these rights. Thus, the present research examines First Amendment knowledge as well as competence to apply this knowledge in relevant circumstances. Results revealed that one-quarter of participants failed a test of objective knowledge on First Amendment rights. Furthermore, participants' belief in their ability varied depending on their level of knowledge, in line with the Dunning–Kruger effect. Participants also failed to transfer their limited objective knowledge to “real-world” situations, exhibiting impaired First Amendment competence. These …

Free Speech In The Internet Era: Reviewing Policies Seeking To Modify Section 230 Of The Communications Decency Act Of 1996, Jacob Cordeiro

Senior Honors Projects

Section 230 of the Communications Decency Act (CDA), has for over two decades provided “interactive computer services” a legal liability shield for defamatory or otherwise actionable user-generated content posted on their platforms and, for lawsuits stemming over unequal enforcement of their content policies provided enforcement efforts are taken in “good faith.” This law, passed in the early days of the Internet, incubated the Internet and social media, giving it the regulatory freedom it needed to grow into a platform where hundreds of millions of Americans can exchange ideas and engage in political and social discourse. Yet, for all the good …

Free-Speech Rights Versus Property And Privacy Rights: "Ag-Gag" Laws And The Limits Of Property Rights, Ian Drake

Department of Political Science and Law Faculty Scholarship and Creative Works

Beginning in the 1990s, private agricultural firms, research institutions, and their political allies began seeking governmental protection from undercover investigations conducted by animal rights activists. Some state governments responded by enacting statutes that regulate undercover investigatory behavior, creating statutory prohibitions on trespasses and on evidence gathering without permission and requiring undercover investigators to quickly turn over evidence of animal abuse or face civil and criminal fines and penalties (Lin 2015, 474). To date, three such state laws-popularly known as ag-gag laws, a term used by critics of the laws-have been successfully challenged based on claims that they violate First Amendment …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Theses

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Censorship Concerns In College Media: A Multiple Case Study Analysis On The Silencing Of Student Journalists, Haley Nicole Matlock

LSU Doctoral Dissertations

The aim of this qualitative study was to conduct a multiple case study that provides an analysis of censorship concerns at campus newspapers affiliated with public, four-year universities. Eighteen individuals from seven institutions participated in interviews. Interviewees consisted of former and current student journalists and advisers who worked at university publications where allegations of censorship have occurred within the last decade. The Student Press Law Center routinely investigates claims of censorship and provides pro bono legal counsel to student journalists (Zagier, 2011). While courts commonly sided with students in disagreements regarding free speech, Hazelwood v Kuhlmeier (1988) scaled back freedoms …

The Second Founding And The First Amendment, William M. Carter Jr.

Articles

Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution …

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …