Law Commons^™

The New First Amendment And Its Impact On The Second, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Constitutional Law--First Amendment--No Constitutional Right To Vote For Donald Duck: The Supreme Court Upholds The Constitutionality Of Write-In Voting Bans In Burdick V. Takushi, Jeanne M. Kaiser

Faculty Scholarship

This Note examines the Supreme Court decision in Burkick v. Takushi in detail and questions the Court's conclusion that the voters' interest in casting write-in votes is so slight that write-in bans are presumptively valid. The Note concludes that the Burdick decision is both inconsistent with the Court's previous ballot access jurisprudence, and restricts the electoral process at a time when voters are clamoring for more diverse choices in the voting booth. Section I of this Note briefly reviews a number of cases that considered the constitutionality of legislation governing candidate access to election ballots. The ballot access cases are …

Silence And The Word, Paul Campos

Publications

No abstract provided.

How To Do Things With The First Amendment, Pierre Schlag

Publications

No abstract provided.

Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography As Speech And Product, Marianne Wesson

Publications

No abstract provided.

The Right To Religion-Based Exemptions In Early America: The Case Of Conscientious Objectors To Conscription, Ellis M. West

Political Science Faculty Publications

One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon v. Smith, which raised the basic issue of whether the free exercise clause of the First Amendment guarantees a right to religion-based exemptions, i.e., whether it gives persons and groups a prima facie right to be exempt from having to obey valid laws when they have religious reasons for noncompliance. More specifically, in Smith, two Native Americans claimed that their prosecution for using an illegal drug, peyote, was precluded by the free exercise clause …

Advocacy And Scholarship, Paul F. Campos

Publications

The apex of American legal thought is embodied in two types of writings: the federal appellate opinion and the law review article. In this Article, the author criticizes the whole enterprise of doctrinal constitutional law scholarship, using a recent U.S. Supreme Court case and a Harvard Law Review article as quintessential examples of the dominant genre. In a rhetorical tour de force, the author argues that most of modern constitutional scholarship is really advocacy in the guise of scholarship. Such an approach to legal scholarship may have some merit as a strategic move towards a political end; however, it has …

Lee V. Weisman: A New Age For Establishment Clause Jurisprudence?, Elizabeth Brandt

Articles

No abstract provided.

Is The New York Times "Actual Malice" Standard Really Necessary? A Comparative Perspective, Geoffrey Bennett, Russell L. Weaver

Journal Articles

In New York Times Co. v. Sullivan, the United States Supreme Court extended First Amendment guarantees to defamation actions. Many greeted the Court's decision with joy. After the decision, many years elapsed during which "there were virtually no recoveries by public officials in libel actions."

The most important component of the New York Times decision was its "actual malice" standard. This standard provided that, in order to recover against a media defendant, a public official must demonstrate that the defendant acted with "malice." In other words, the official must show that the defendant knew that the defamatory statement was false …

Constitutional Identity, George P. Fletcher

Faculty Scholarship

The aim of this Article is to introduce and clarify a new way of thinking about decisions in close cases, particularly those that address basic issues of constitutional law. When constitutional language fails to offer an unequivocal directive for decision, the recourse of the judge is not always to look "outward" toward overarching principles of political morality. In an illuminating array of cases, the acceptable way to resolve the disputes and to explain the results is to turn "inward" and reflect upon the legal culture in which the dispute is embedded. The way to understand this subcategory of decisions is …