Digital Commons Network^™

Pronouns On The Clock: The Eleventh Circuit’S Broad Limitation Of Teacher Speech In Wood V. Florida Department Of Education, Carter E. Pannell

Mercer Law Review

Few settings test the limits of free speech more sharply than public schools, where questions of personal identity, government authority, and constitutional rights often intersect. Because the government has an interest in regulating what its employees do and say, First Amendment protections afforded to government employees are diluted in comparison to those afforded to private citizens. A contemporary example of this tension is the question of whether the government may regulate a public-school teacher’s use of pronouns or titles in their own classroom.

In 2023, Florida enacted a statute forbidding teachers from using pronouns or titles that differ from the …

On Shaky Ground: America’S Public Lands Face An Uncertain Future, John Leshy

Colorado Environmental Law Journal

No abstract provided.

Hear Me Out: What Is Our Obligation To Listen?, Thomas Healy

The Journal of Contemporary Legal Issues

Most scholarly discussions about “cancel culture” focus on the extent to which imposing economic or social sanctions on speakers violates the principle of free speech. In this essay, I consider a related question, which is whether deliberately avoiding, ignoring, or blocking speakers one disagrees with is antithetical to free speech. Although it might seem strange to suggest that a principle concerned with the right to speak entails an obligation to listen, I argue that genuine “good faith” listening is necessary to further the goals free speech is designed to serve. However, I also argue that this obligation is imperfect, or …

Chacahoula 2025, Volume 92, Alayna Pellegrin

Chacahoula

The 2025 issue of Chacahoula includes December 2024 and May 2025 graduating classes, as well as stunning photography student life on the banks of Bayou Desiard. With features covering students, faculty, and staff, this year's time capsule preserves an academic year in the life of the University of Louisiana at Monroe.

Race, The Academy, And The Constitution Of The War On Drugs, Jeffrey Bellin, Bennett Capers

Vanderbilt Law School Faculty Publications

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only in- creased since the war was declared in 1971. David Pozen's new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a "right" to use drugs with surprising, if fleeting, suc- cess. Pozen asks what might have been, exploring why the courts backtracked and effectively re- moved the Constitution as a meaningful obstacle to drug prohibitions. …

Race, The Academy, And The Constitution Of The War On Drugs, Bennett Capers, Jeffrey Bellin

Faculty Publications

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions.

This Review …

Race, The Academy, And The Constitution Of The War On Drugs, I. Bennett Capers, Jeffrey Bellin

Faculty Scholarship

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions. 

This Review …

Free The Market: How We Can Save Capitalism From The Capitalists, Mark A. Lemley

UC Law Journal

The free market works because no one person or company is making the decisions. In a competitive market, businesspeople make the wrong decisions all the time, just as central planners do. But the consequences of those decisions don’t infect the market as a whole. Businesses that guess wrong lose money or go out of business. But as long as there is a competitor out there who guesses right, the market provides people what they want.

But it turns out that the very last thing capitalists want is a free market. Capitalism may thrive under conditions of robust market competition, but …

Direct Democracy: Ohio Style, Steven H. Steinglass, Ernest M. Oleksy

Cleveland State Law Review

This Article is an expansion of comments by Steven H. Steinglass at a Symposium on Democracy sponsored by the Cleveland State Law Review and held on October 27, 2023. The Symposium looked broadly at threats to democracy, but the panel on which he participated focused more narrowly on the Ohio Constitution and Democracy. The Article reviews the history of direct democracy in Ohio with an emphasis on the constitutional initiative. Part I of this Article discusses the historical origins of direct democracy in Ohio and the iconic Ohio Constitutional Convention of 1912 that proposed Ohio’s direct democracy amendment. Particular …

Gonzales V. Raich: An Opening For Rational Drug Law Reform, Martin D. Carcieri

Tennessee Journal of Law and Policy

No abstract provided.

Aba-Mandated Instruction On Racism And Recent State Legislation Banning Such Instruction In University Classrooms: “Jim Crow” Redux, Bernard K. Freamon

Law Faculty Scholarship

No abstract provided.

Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler

IP Theory

The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First …

Aba-Mandated Instruction On Racism And Recent State Legislation Banning Such Instruction In University Classrooms: “Jim Crow” Redux, Bernard K. Freamon

Roger Williams University Law Review

No abstract provided.

States Have Long Tried To Ban Ideas From The Classroom: The Current Road Brings A Fresh Evil, Leonard Niehoff

Other Publications

Efforts by state and local officials to ban ideas and books from public school classrooms are nothing new. Recent attempts to do so, however, have a uniquely pernicious characteristic. The current wave of bans doesn’t just seek to censor thoughts or words; it seeks to censor identity.

The Fraternity Of Legal Style, Alexa Z. Chew

Faculty Publications

This article reports the findings of an empirical study of writing experts mentioned in popular legal style books. The study shows that these experts are overwhelmingly men. This study complements the many other studies showing that gender and racial bias exists throughout the legal profession, but it focuses on one area that has not yet been examined: bias in books that give writing advice to lawyers. I call these books “legal style books.” The area of legal writing advice books is admittedly niche. However, it is worth studying because writing is central to lawyering.

Chevron'S Ghost Rides Again, Thomas W. Merrill

Faculty Scholarship

Professor Gary Lawson has offered a remarkable account of the fate of the Chevron doctrine during a recent year in the Supreme Court, from August 2021 to June 2022. When one examines lower court decisions, petitions seeking review of those decisions, briefs filed by the parties, and transcripts of oral arguments, Chevron made frequent appearances during the year. But when one reads the published opinions of the Court, one finds virtually no reference to Chevron. Based on the published opinions of the Court, it was as if the Chevron decision did not exist.

The status of Chevron as a …

Social Control Through The Reconstitution Of Man, Leroy L. Lamborn

Florida Law Review

No abstract provided.

Beyond Individual Privacy: A New Theory Of Family Rights, Jane Rutherford

Florida Law Review

No abstract provided.

Algorithm V. Algorithm, Cary Coglianese, Alicia Lai

Duke Law Journal

Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias. A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making. The human brain operates algorithmically through complex neural networks. And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes. Yet these human algorithms undeniably fail and are far from transparent. On an individual level, human decision-making suffers from memory limitations, fatigue, …

The Complex Dualisms Of Corporations And Democracy, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

These are perilous times for American democracy. Among the threats, many point to the power of corporations. This article examines that threat by considering a series of dualisms characterizing the relationship between corporations and democracy. This begins with a look at the anti- as well as the pro-democratic impacts of the earliest corporations and the paradoxes with respect to democracy created during the evolution of corporate law. The article then looks at internal corporate governance (so-called “corporate” or “shareholder democracy”) to show how, on the one hand, it contains features addressing some of the greatest current threats to American democracy, …

Privacy Pretexts, Rory Van Loo

Faculty Scholarship

Data privacy’s ethos lies in protecting the individual from institutions. Increasingly, however, institutions are deploying privacy arguments in ways that harm individuals. Platforms like Amazon, Facebook, and Google wall off information from competitors in the name of privacy. Financial institutions under investigation justify withholding files from the Consumer Financial Protection Bureau by saying they must protect sensitive customer data. In these and other ways, the private sector is exploiting privacy to avoid competition and accountability. This Article highlights the breadth of privacy pretexts and uncovers their moral structure. Like most pretexts, there is an element of truth to the claims. …

Defining Reasonableness: A Substantive And Procedural Overview Of Police Use Of Force, Bradley Prewitt

Lincoln Memorial University Law Review Archive

No abstract provided.

Good With Words: Speaking And Presenting, Patrick Barry

Books

Suppose you were good with words. Suppose when you decided to speak, the message you delivered—and the way you delivered it—successfully connected with your intended audience. What would that mean for your career prospects? What would that mean for your comfort level in social situations? And perhaps most importantly, what would that mean for your satisfaction with the personal relationships you value the most?

This book is designed to help you find out. Based on an award-winning course and workshop series at the University of Michigan taken by students training to enter a wide range of fields—law, business, medicine, social …

Fairness, Copyright, And Video Games: Hate The Game, Not The Player, Shani Shisha

Fordham Intellectual Property, Media and Entertainment Law Journal

Creative communities often rely on social norms to regulate the production of creative content. Yet while an emerging body of literature has focused on isolated accounts of social norms operating in discrete, small-scale creative industries, no research to date has explored the social norms that pervade the world’s largest content microcosm—the sprawling video game community.

Now a veritable global phenomenon, the video game industry has recently grown to eclipse the music and motion picture industries. But despite its meteoric rise, the video game industry has provoked little attention from copyright scholars. This Article is the first to explore the shifting …

Growth & Change: Journals Stand For More Than Base Prestige, Connor B. Mcdermott

Lewis & Clark Law Review

No abstract provided.

The Yin And Yang Of Corporations And Democracy, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

These are perilous times for American democracy. Among the threats, many point to the power of corporations. This article examines that threat by considering a series of dualisms characterizing the relationship between corporations and democracy.

This begins with a look at the anti- as well as the pro-democratic impacts of the earliest corporations and the paradoxes with respect to democracy created during the evolution of corporate law. The article then looks at internal corporate governance (so-called “corporate” or “shareholder democracy”) to show how, on the one hand, it contains features addressing some of the greatest current threats to American democracy, …

How Can We Achieve Accountability In Policing? The (Not-So-Secret) Ingredients To Effective Police Reform, Michael D. White, Henry F. Fradella, Michaela Flippin

Lewis & Clark Law Review

The summer of 2020 was marked by a series of high-profile police killings of citizens, highlighting excessive force as the most pernicious form of racial injustice in American policing. The persistence of the excessive use of force problem over decades raises serious questions regarding what we know about police accountability, and has led some to argue for defunding or even abolishing the police. However, the roadmap to effective police accountability is tangible and known. In this Article, we delineate eight guiding principles and eight strate-

Restoring The Balance Of Copyright: Antitrust, Misuse, And Other Possible Paths To Challenge Inequitable Licensing Practices, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Libraries’ purposes of ensuring access to and preservation of information have been compromised as licensing increasingly replaces ownership. This article outlines various novel legal strategies that libraries could use to restore copyright’s intended balance, including antitrust, preemption, misuse, and unconscionability.

Section 1983 & Qualified Immunity: Qualifying The Death Of Due Process And America's Most Vulnerable Classes Since 1871. Can It Be Fixed?, Gabrielle Pelura

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Janus And The Future Of Collective Bargaining: Rhetorically Predicting A First Amendment Right To Negotiation, Thomas J. Freeman, Aaron Mckain, Destynie J.L. Sewell

William & Mary Business Law Review

The importance of the U.S. Supreme Court ruling in Janus v. American Federation of State, County, and Municipal Employees has been widely recognized for its effect on reducing the power and influence of public unions. A close reading of the majority opinion provides a clue that compulsory collective bargaining itself may be settling into the court’s crosshairs. Collective bargaining is an important tool, by which labor can reduce the often-inherent power imbalance it has with ownership and management. Yet as this Article outlines, the interests of individual workers can often be at odds with those other workers workers, particularly those …