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- First Amendment (2)
- SCOTUS (2)
- Scrutiny (2)
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- Fifth Amendment; Self-Incrimination Clause; the Fifth Amendment privilege; the privilege; invoking the Fifth; taking the Fifth; corporate officers; corporate custodian; collective entity; collective entity rule; artificial entity; corporation; Bill of Rights and corporations (1)
Articles 1 - 4 of 4
Full-Text Articles in Law
A Tale Of Two Formalisms: How Law And Economics Mirrors Originalism And Textualism, Neil H. Buchanan, Michael C. Dorf
A Tale Of Two Formalisms: How Law And Economics Mirrors Originalism And Textualism, Neil H. Buchanan, Michael C. Dorf
UF Law Faculty Publications
Two leading schools of thought among U.S. conservative legal elites — Law and Economics (L&E) and Originalism and Textualism (O&T) — both purport to use their formalist structures to guide analysis in ways that are objective, substantially determinate, and apolitical. Because they rest on very different theoretical underpinnings, L&E and O&T should only randomly reach similar policy or legal conclusions. After all, L&E implements neoclassical economics, a theory of utility maximization, whereas O&T is a theory of semantics. Yet as practiced, L&E and O&T rarely result in conflict. What explains the missing intra-conservative clash? Despite their respective pretenses to objectivity, …
Scrutiny-Determination Avoidance In First Amendment Cases: Laudable Minimalism Or Condemnable Evasion?, Clay Calvert
Scrutiny-Determination Avoidance In First Amendment Cases: Laudable Minimalism Or Condemnable Evasion?, Clay Calvert
UF Law Faculty Publications
This Article examines the United States Supreme Court’s practice in First Amendment cases of not resolving the precise level of scrutiny that applies to measure a statute’s validity. Rather than opting for one of two tiers of scrutiny — one more rigorous than the other—the Court sometimes dodges the issue. It does this by concluding that a statute would not pass muster under the more lenient standard, thereby rendering it unnecessary to decide which test was, in fact, more appropriate. The Court thus adopts an “assuming-without-deciding” logic in such cases, simply supposing the lesser standard applies without definitively holding as …
Curing The First Amendment Scrutiny Muddle Through A Breyer-Based Blend Up? Toward A Less Categorical, More Values-Oriented Approach For Selecting Standards Of Judicial Review, Clay Calvert
UF Law Faculty Publications
This Article argues that the United States Supreme Court should significantly alter its current categorical approach for discerning standards of judicial review in free-speech cases. The present system should become nondeterminative and be augmented with a modified version of Justice Stephen Breyer’s long-preferred proportionality framework. Specifically, the Article’s proposed tack fuses facets of today’s policy, which largely pivots on distinguishing content-based laws from content-neutral laws and letting that categorization determine scrutiny, with a more nuanced, values-and-interests methodology. A values-and-interests formula would allow the Court to climb up or down the traditional ladder of scrutiny rungs – strict, intermediate or rational …
Long Overdue: Fifth Amendment Protection For Corporate Officers, Tracey Maclin
Long Overdue: Fifth Amendment Protection For Corporate Officers, Tracey Maclin
UF Law Faculty Publications
The Supreme Court has extended to corporations many of the same constitutional rights that were originally intended to protect people. One notable exception, however, is the Fifth Amendment’s prohibition on compulsory self-incrimination. “Corporations may not take the Fifth.” There is a long line of cases dating back to the start of the twentieth century stating – but never directly holding – that corporations are not protected by the self-incrimination clause. But the fact that a corporation cannot invoke the Fifth does not explain why a person who works for a corporation cannot. As a matter of text, the Fifth Amendment …