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Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman
Liberalism Triumphant? Ideology And The En Banc Process In The Ninth Circuit Court Of Appeals, Arthur D. Hellman
Articles
There are two things that everyone knows about the Ninth Circuit Court of Appeals: it is very large, and it is very liberal. But common knowledge is sometimes wrong. Is that the case here?
About the first point – the Ninth Circuit’s size – there can be no dispute. The Ninth Circuit Court of Appeals has 29 authorized judgeships, almost twice as many as the second-largest court. But what about the second point – the liberalism? Knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”
Until now, no one has empirically tested whether …
Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton
Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton
Publications
Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.
The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …
The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman
The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman
Articles
In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …
We’Ve Come A Long Way (Baby)! Or Have We? Evolving Intellectual Freedom Issues In The Us And Florida, L. Bryan Cooper, A.D. Beman-Cavallaro
We’Ve Come A Long Way (Baby)! Or Have We? Evolving Intellectual Freedom Issues In The Us And Florida, L. Bryan Cooper, A.D. Beman-Cavallaro
Works of the FIU Libraries
This paper analyzes a shifting landscape of intellectual freedom (IF) in and outside Florida for children, adolescents, teens and adults. National ideals stand in tension with local and state developments, as new threats are visible in historical, legal, and technological context. Examples include doctrinal shifts, legislative bills, electronic surveillance and recent attempts to censor books, classroom texts, and reading lists.
Privacy rights for minors in Florida are increasingly unstable. New assertions of parental rights are part of a larger conservative animus. Proponents of IF can identify a lessening of ideals and standards that began after doctrinal fruition in the 1960s …
Bookends: Justice Stevens And Justice Scalia, Gregory P. Magarian
Bookends: Justice Stevens And Justice Scalia, Gregory P. Magarian
Scholarship@WashULaw
The great importance Justice John Paul Stevens attaches to his bonds with former colleagues has long shone through his words and actions. Anyone who knows Justice Stevens knows of his deep admiration for his former boss, Justice Wiley Rutledge, whose deep ties to Washington University Justice Stevens emphasized in his recent remarks here.' During the year I had the privilege of serving as one of Justice Stevens' law clerks, retired Chief Justice Warren Burger passed away. A few days after Chief Justice Burger's death, Justice Stevens announced a decision from the bench. He revised his explanation of the majority's reasoning …
Did A Switch In Time Save Nine?, Daniel E. Ho, Kevin M. Quinn
Did A Switch In Time Save Nine?, Daniel E. Ho, Kevin M. Quinn
Faculty Articles
Franklin Delano Roosevelt’s court-packing plan of 1937 and the “switch in time that saved nine” animate central questions of law, politics, and history. Did Supreme Court Justice Roberts abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts’s transformation was gradual and anticipated or abrupt and unexpected. Using newly collected data of votes from the 1931–1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts’s transformation. Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term. The …
The Possibility Of A Secular First Amendment, Chad Flanders
The Possibility Of A Secular First Amendment, Chad Flanders
All Faculty Scholarship
In a series of articles and now in their new book, Religious Freedom and the Constitution, Lawrence Sager and Christopher Eisgruber (E&S) defend an interpretation of the religion clauses of the First Amendment which, they write, "denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions." While not a book review in the traditional sense, my essay takes E&S's defense of a secular First Amendment as a starting point and asks, how did we get to the point where an interpretation of the First Amendment which denies that religion is …
Review Essay: Liberalism And The Supreme Court, Donald P. Kommers
Review Essay: Liberalism And The Supreme Court, Donald P. Kommers
Journal Articles
In Liberalism and American Constitutional Law, Rogers M. Smith of Yale University takes stock of the American liberal tradition and its impact on the Supreme Court's constitutional jurisprudence. It argues that the tradition's political vision lacks philosophical coherence and that our constitutional law, by reflecting this incoherence, has failed to provide the legal community with a public philosophy suited to the needs of American society in the late twentieth century.His goal is to demonstrate the superiority of "rational liberty," both as a philosophical theory and practical guide to constitutional policymaking, over three major competing versions of liberal constitutionalism. To wit: …