Law Commons^™

The Inversion Of Rights And Power, Philip A. Hamburger

Faculty Scholarship

No constitutional test is more important than the compelling-government-interest test. It is the foundation of all analysis of constitutional rights. But can a government interest really defeat a constitutional right?

The courts repeatedly say that claims of constitutional rights must give way to government interests.The courts even sometimes say that a compelling government interest justifies the infringement of a right – as when the Supreme Court asks "whether some compelling state interest ... justifies the substantial infringement of appellant's First Amendment right." In support of such doctrine, it often is said that rights are "not absolute."

This sort of analysis …

A Reply To "Hollow Spaces", George A. Bermann, Jack J. Coe Jr., Christopher R. Drahozal, Catherine A. Rogers

Faculty Scholarship

This short essay responds to Chip Brower's thoughtful and meticulous critique of Tentative Draft No. 2 of the Restatement Third of the U.S. Law of International Commercial Arbitration. While we appreciate the concerns he raises, we disagree with the conclusions he draws both about the Restatement and the drafting process. We address here what we understand to be Professor Brower's major criticisms of the work.

Election Campaigns And Democracy: A Review Of James A. Gardner, What Are Campaigns For? The Role Of Persuasion In Electoral Law And Politics, Richard Briffault

Faculty Scholarship

What are election campaigns for? Not much, according to Professor James A. Gardner – or, at least, not nearly as much as the critics of American election campaigns would have us believe. In his new book, What Are Campaigns For? The Role of Persuasion in Electoral Law and Politics, Professor Gardner contends that instead of serving as settings for extended discussion or in depth reflection concerning political beliefs, the ideal election campaign does little more than make it more likely that the voter will cast a ballot consistent with the beliefs that he or she held before the start …