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Articles 1 - 5 of 5
Full-Text Articles in Law
Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero
Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero
Journal Articles
This article examines the debate between those who favor greater protection for minorities vulnerable to hate speech and First Amendment absolutists who are skeptical of any burdens on pure speech. The author also provides another perspective on the debate by highlighting the "public/private figure" distinction as an area within First Amendment law that acknowledges differences in power, a construct anti-hate speech advocates should use to further their cause. Specifically, the author places the "public/private figure" division in a theoretical and historical context and then provides empirical support for the thesis that whites enjoy a more prominent societal role and greater …
Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero
Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero
Journal Articles
This Essay will focus on "racial profiling" not just in the way people think about the term - that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black" - but also in the context of "affirmative action - namely, using race as a factor in employment and educational decisions. More broadly, then, I want us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual" which moves us slightly away from more pejorative notions of the phrase that have …
Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman
Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman
Journal Articles
In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their "original packages," the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of "original package saloons," at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed …
Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley
Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley
Journal Articles
This article criticizes the cardinal rule of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings …
Virtue And The Constitution Of The United States, John M. Finnis
Virtue And The Constitution Of The United States, John M. Finnis
Journal Articles
In this Article, Finnis reflects on the following five questions: (1) Does the Constitution require or presuppose, or thwart or even forbid, a formative project of government inculcating in citizens the civic virtue necessary to promote and sustain a good society?; (2) To what extent can the institutions of civil society support or even supplant government in inculcating civic virtue?; (3) What is the content of the civic virtue that should be inculcated in circumstances of moral disagreement, and how does it relate to traditional moral virtue?; (4) Does it include respect for and appreciation of diversity?; (5) Should a …