Law Commons^™

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Publications

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot …

Government Speech In Transition, Helen Norton

Publications

This symposium essay explores the legacy of the Supreme Court’s decision in Johanns v. Livestock Mktg. Ass’n. There the Court offered its clearest articulation to date of its emerging government speech doctrine. After characterizing contested expression as the government’s, the Court then held such government speech to be exempt from free speech clause scrutiny. In so doing, the Court solved at least one substantial problem, but created others that remain unresolved today. On one hand, Johanns marked the Court’s long overdue recognition of the ubiquity and importance of government speech, appropriately exempting the government’s own expressive choices from free …

Lies And The Constitution, Helen Norton

Publications

Although the Supreme Court declared almost forty years ago that “there is no constitutional value in false statements of fact,” the Court in United States v Alvarez ruled that the First Amendment protects at least some -- and perhaps many -- intentional lies from government prohibition. In Alvarez, a divided Court struck down the Stolen Valor Act, a federal statute that made it a crime for any person to state falsely that he or she had received a military decoration or medal. In three separate opinions, all of the Justices agreed that the First Amendment permits the government to …

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Publications

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.

Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux

Publications

No abstract provided.

Tenth Amendment Challenges After Bond V. United States, Scott G. Thompson, Christopher Klimmek

Publications

In its recent decision in Bond v. United States, the Supreme Court explained that because the Tenth Amendment "secures the freedom of the individual," private parties who otherwise satisfy Article III's standing requirements and other prudential requirements may challenge federal laws as violating the Tenth Amendment. In so doing, the Court reversed the majority of circuit courts that have addressed the issue and removed a significant categorical bar to individual Tenth Amendment challenges. This Article explains Bond's holding and explores its implications for future Tenth Amendment challenges by private parties.

Although Bond contains some expansive language regarding the role …

Bridging The Great Divide--A Response To Linda Greenhouse And Reva B. Siegel's Before (And After) Roe V. Wade: New Questions About Backlash, Lolita Buckner Inniss

Publications

This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into …

Partiality And Disclosure In Supreme Court Opinions, Robert F. Nagel

Publications

This Essay begins by identifying the various kinds of partiality the Justices of the Supreme Court can have in the cases they decide. Although there is widespread recognition of the influence these biases might have, for the most part the Justices continue to write opinions as if they (and other judges) were entirely disinterested. This practice is often thought to be justified as a source of judicial legitimacy, but there are a number of reasons to doubt that a pretense of impersonality is actually important for maintaining respect for the Court. Consequently, the possibility has to be considered that the …

Limiting Principles And Empowering Practices In American Indian Religious Freedoms, Kristen A. Carpenter

Publications

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was …