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Full-Text Articles in Law
The Conspiracy Origin Of The First Amendment, Steven R. Morrison
The Conspiracy Origin Of The First Amendment, Steven R. Morrison
Steven R Morrison
Scholars and jurists have misunderstood the import of three seminal 1919 First Amendment cases—Schenck v. United States, Frohwerk v. United States, and Abrams v. United States—as primarily free speech cases. They are better understood as free assembly cases. This is important for two reasons. First, individuals’ speech has the intended First Amendment effect only when speakers combine into groups. Second, the 1919 cases were the beginning of substantive First Amendment law, and so have resulted in a First Amendment jurisprudence that favors individual rights over group rights. This is a constitutional and normative mistake. Combined with the first reason, the …
The System Of Modern Criminal Conspiracy, Steven R. Morrison
The System Of Modern Criminal Conspiracy, Steven R. Morrison
Steven R Morrison
Something has changed in the modern system of American criminal conspiracy law compared to its prior iterations. This article explores that change, arguing that the system of modern criminal conspiracy now gives to the government such great discretion to charge and prove a conspiracy that unpopular ideas and the speech that expresses them have become ready subjects of prosecution. At its center, this article defines the system of modern conspiracy law, which is one of uniformity rather than dynamism. Where dynamic systems of law contain distinct components that perform different tasks (proving actus reus and mens rea, for example), the …
Requiring Proof Of Conspiratorial Dangerousness, Steven R. Morrison
Requiring Proof Of Conspiratorial Dangerousness, Steven R. Morrison
Steven R Morrison
It is overwhelmingly assumed that criminal conspiracies pose a “distinct evil” that justifies criminalizing them and providing prosecution-friendly rules of evidence in their proof. Professor Neal Kumar Katyal’s defense of conspiracy law rests on this assumption, but Professor Abraham S. Goldstein’s seminal critique notes that it has never been empirically shown to be true. This article argues that to impose criminal liability, prosecutors ought to be required to prove a conspiracy’s dangerousness. In doing so, it also provides insight into conspiracy law that Katyal and Goldstein leave unilluminated. Their opinions on conspiracy’s dangerousness diverge because they assume different group data …