Digital Commons Network^™

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

Publications

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …

Formalism And Realism In Ruins (Mapping The Logics Of Collapse), Pierre Schlag

Publications

After laying out a conventional account of the formalism vs. realism debates, this Article argues that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented--that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law's empire. We live thus amidst the ruins of formalism and realism. The disputes between these two great determinations of American law continue today, but usually in more localized or circumscribed forms. We see …

Created In Its Image: The Race Analogy, Gay Identity, And Gay Litigation In The 1950s-1970s, Craig J. Konnoth

Publications

Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially transformed by activist efforts during this period, and that this transformation fundamentally affected the nature of gay activism. Gay organizers in the 1950s and 1960s moved from avoiding identity-based claims to analogizing gays to African-Americans. By transforming themselves in the image of a successful black civil rights minority, activists attempted to win over skeptical courts in a period when equal …

Institutional Design, Fcc Reform, And The Hidden Side Of The Administrative State, Philip J. Weiser

Publications

Legal scholars have long recognized the importance of the modern administrative state, focusing intently both on the substance of regulatory law and the process of administrative law. Neither focus, however, recognizes the importance of institutional design and institutional processes as determinants of the nature and shape of administrative regulation. The era of neglect towards institutional analysis by both scholars and policymakers may well be on its last legs, as it is increasingly clear that the institutional processes used by regulatory agencies - including when to act by rulemaking as opposed to by adjudication, how to engage the public, and how …

The Internet's Public Domain: Access To Government Information On The Internet, Susan Nevelow Mart

Publications

This article surveys the types and amounts of information that have been removed from the Internet since September 11th. Information has been removed in the name of national security as well as for reasons of seeming political expediency. After discussing the bases of some of the rationales for removing the information, and the legal underpinnings of continued access, the article suggests several forms of advocacy that could be used to return the information to the public's domain.

House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson

Publications

In an attempt to erase Islamic-fundamentalist sentiments held by detainees apprehended in the course of the "war on terror," the United States government began teaching and preaching a more moderate version of the Qur'an and Islam to detainees in Iraq. One such detention program in Iraq was dubbed the House of Wisdom. But the wisdom of such a practice is highly suspect--both because it likely runs afoul of the Establishment Clause of the First Amendment and because it may be doing more harm than good to the American effort to defuse Islamic-extremism and anti-American sentiment. This Article examines the practice …

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Publications

It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five …

Sanctuary Policies & Immigration Federalism: A Dialectic Analysis, Pratheepan Gulasekaram, Rose Cuison Villazor

Publications

No abstract provided.

The Exceptional Nature Of Terrorism: The United States And Middle Eastern Legal Systems, Wadie E. Said

Publications

No abstract provided.

Big, Bad, Black And Gay: Overcoming The Shackles Of The Socially Constructed Black Masculine, Scott Skinner-Thompson

Publications

No abstract provided.

I Promise I Won't Say 'Herstory': New Conversations Among Feminists, Jannelle Ruswick, Alycia Sellie

Publications and Research

No abstract provided.

Tennessee V. Lane, Martha A. Field, Michael Ashley Stein

Faculty Publications

No abstract provided.

Why The United States Supreme Court Got Some [But Not A Lot] Of The Sixth Amendment Right To Counsel Analysis Right, Paul Marcus

Faculty Publications

No abstract provided.

Cedaw, Compliance, And Custom: Human Rights Enforcement In Sub-Saharan Africa, Angela M. Banks

Faculty Publications

No abstract provided.

Abstention Doctrine, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Specific Performance And The Thirteenth Amendment, Nathan B. Oman

Faculty Publications

No abstract provided.

"Duty-Defining Power" And The First Amendment's Civil Domain, Timothy Zick

Faculty Publications

In Rethinking Free Speech and Civil Liability,1 Daniel Solove and Neil Richards attempt something truly ambitious. The authors seek to map coherent boundaries for the First Amendment’s vast civil domain. Their project merits serious attention. Currently, different rules apply to civil liability for speech depending on whether the liability arises in tort, contract, or property. Solove and Richards claim that these boundaries are unworkable, under-theorized, and in some cases destined to collide. They develop a framework for mapping the First Amendment’s civil domain that is based upon a distinction regarding the type of power the state exercises in various civil …

Constitutional Displacement, Timothy Zick

Faculty Publications

This Article examines the intersection between territory and constitutional liberty. Territoriality, as defined by Robert Sack, is the attempt to affect, influence, or control people, phenomena, and relationships by delimiting and asserting control over a geographic area. Territoriality affects constitutional liberty in profound ways. These effects have been apparent in certain infamous historical episodes, including the territoriality of racial segregation, the geographic exclusion and internment of Japanese-Americans during World War II, early state migratory exclusions, and isolation of the sick and mentally ill. Today, governments are resorting to territorial restrictions in an increasing number of circumstances, including detention of enemy …

"The Living Oracles": Legal Interpretation And Mormon Thought, Nathan B. Oman

Faculty Publications

No abstract provided.

How Planned Parenthood V. Casey (Pretty Much) Settled The Abortion Wars, Neal Devins

Faculty Publications

More than twenty-one years after Robert Bork's failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this Essay, I will debunk those claims. First, I will explain how Casey's approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey- either by restoring the trimester test …

Preaching To The Court House And Judging In The Temple, Nathan B. Oman

Faculty Publications

No abstract provided.

The Rest Is Silence: Chevron Deference, Agency Jurisdiction, And Statutory Silences, Jonathan H. Adler, Nathan Alexander Sales

Faculty Publications

Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This Article argues that, in general, they should not. The authors begin by identifying and detailing the various different types of “jurisdictional questions” that may arise in statutory interpretation. The Article then surveys how courts have analyzed these different aspects of the jurisdiction problem, with a particular attention directed to statutory silences. The Court’s Chevron jurisprudence strongly suggests that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In …

Business, The Environment, And The Roberts Court: A Preliminary Assessment, Jonathan H. Adler

Faculty Publications

The Roberts Court has developed a reputation for being a "pro-business" court. This article, prepared for the 2009 Santa Clara Law Review symposium on "Big Business and the Roberts Court," seeks to offer a preliminary assessment of this claim with reference to the Roberts Court's decisions in environmental cases. Reviewing the environmental law decisions of the Roberts Court to date reveals no evidence of a "pro-business" bias. This does not disprove the claim that the Roberts Court is pro-business, but it may suggest the need to refine conventional descriptions of the Roberts Court. The lack of a pro-business orientation in …

First Parents: Reconceptualizing Newborn Adoption, James G. Dwyer

Faculty Publications

No abstract provided.

The More Things Change, The More They Stay The Same, Neal Devins

Faculty Publications

No abstract provided.

Constitutional Birthright: The State, Parentage, And The Rights Of Newborn Persons, James G. Dwyer

Faculty Publications

State parentage laws, dictating who a newborn child's first legal parents will be, have been the subject of constitutional challenges in several U.S. Supreme Court and many lower court decisions. All of those decisions, however, have focused on constitutional rights of adults (especially unwed biological fathers) who wish to become, or to avoid becoming, legal parents. Neither courts nor legal scholars have considered whether the children have any constitutional rights that constrain legislatures and courts in deciding which adults will be their legal parents. If a state enacted a parentage law that said, for example, that any child born to …

Universal De Novo Review, Chad M. Oldfather

Faculty Publications

This article takes up the question of why appellate courts always review questions of law pursuant to the de novo standard of review. Put another way, it examines the familiar idea that appellate courts owe no deference to the legal rulings of trial judges. They must instead engage in what I refer to as universal de novo review - a practice pursuant to which appellate courts faced with legal questions always enjoy the authority to engage in plenary review, and never have the responsibility (or even the option) to defer to their trial-level counterparts. Despite - or perhaps because of …

Family Law For The Underclass: Underscoring Law's Ideological Function, David Ray Papke

Faculty Publications

This article underscores the manner in which family law for the contemporary underclass assumes a distinctly ideological function. Marriage promotion programs not only urge members of the underclass to marry but also deplore their declining commitment to marriage as an institution. "Deadbeat dad" legislation suggests the failure of underclass fathers to pay child support regularly and on time is a major cause of poverty in American life. Adoption law facilitates the placement of underclass children in middle and upper-class families, insisting in the process that this must surely be best for the children. Overall, family law for the underclass suggests …

Did Congress Strip The Federal Circuit Courts Of The Power To Review Denials Of Motions To Reopen Immigration Proceedings?, Jessica E. Slavin

Faculty Publications

No abstract provided.

Does The Mobile-Sierra Doctrine Apply When A Contract Is Challenged By A Noncontracting Third Party?, Jay E. Grenig

Faculty Publications

No abstract provided.