Law Commons^™

The Off-Label Use Of Pom Wonderful: Using Section 43(A) To Eliminate Misleading Off-Label Drug Promotion, Christopher A. Hurley

Washington and Lee Law Review

No abstract provided.

Hogan V. Gawker: A Leg-Drop On The First Amendment, Aubrey Morin

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Contemplating Masterpiece Cakeshop, Terri R. Day, Danielle Weatherby

Washington and Lee Law Review Online

Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will consider whether a baker’s religious objection to same-sex marriage justifies his violation of Colorado’s public accommodation law in refusing to bake a cake for a same-sex wedding. At the centerpiece of Masterpiece Cakeshop is a clash between the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause or, more precisely, the principles of equality in commercial life as grounded in Colorado’s public accommodation law. In exploring the purpose inherent in regulating private conduct through public accommodation laws, this Essay suggests that …

Grand Theory Or Discrete Proposal? Religious Accommodations And Health Related Harms, James M. Oleske Jr.

Washington and Lee Law Review Online

More than a quarter-century has passed since the Supreme Court decided in Employment Division v. Smith that religious accommodations are primarily a matter of legislative grace, not constitutional right. In that time, barrels of ink have been spilled over the merits of the Smith decision. But comparatively little attention has been given to the issue of how legislatures and other political actors should exercise their discretion to grant or deny specific religious accommodations. In their article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, Professor Hillel …

The “Ample Alternative Channels” Flaw In First Amendment Doctrine, Enrique Armijo

Washington and Lee Law Review

In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the speaker could have …

To Accommodate Or Not To Accommodate: (When) Should The State Regulate Religion To Protect The Rights Of Children And Third Parties?, Hillel Y. Levin, Allan J. Jacobs, Kavita Shah Arora

Washington and Lee Law Review

When should we accommodate religious practices? When should we demand that religious groups instead conform to social or legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion.

Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, courts, scholars, ethicists, and medical practitioners have not offered a consistent way to analyze such cases, so the law is inconsistent. This Article suggests, first, that the lack of consistency is a …

Speech And The Truth-Seeking Value, Brian C. Murchison

Scholarly Articles

Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities—survival, progress, and character—without insisting on truth in …

Overcriminalizing Speech, Michal Buchhandler-Raphael

Scholarly Articles

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

Frank Miller’S Sin City College Football: A Game To Die For And Other Lessons About The Right Of Publicity And Video Games, Jordan M. Blanke

Washington and Lee Law Review

The challenge of finding a workable solution for applying the right of publicity is a formidable one because it implicates not only a delicate balance between First Amendment rights and the rights of publicity, but also the complications of varying state laws. The best of the tests developed by the courts so far—the transformative use test—was borrowed from copyright law and itself reflects a careful balance between First Amendment and copyright interests. Additionally, because of dramatic progress in technology, it is likely that in the near future this balancing will often involve not only the rights of publicity and the …

“Groove Is In The Hart”: A Workable Solution For Applying The Right Of Publicity To Video Games, R. Garrett Rice

Washington and Lee Law Review

No abstract provided.

Comment On “Groove Is In The Hart”: A Workable Solution For Applying The Right Of Publicity To Video Games, Christopher B. Seaman

Washington and Lee Law Review

No abstract provided.

The Lawless Rule Of The Norm In The Government Religious Speech Cases, Kyle Langvardt

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

What You Sign Up For: Public University Restrictions On “Professional” Student Speech After Tatro V. University Of Minnesota, William Bush

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

“Kill The Sea Turtles” And Other Things You Can’T Make The Government Say , Scott W. Gaylord

Washington and Lee Law Review

In Pleasant Grove City v. Summum, the Supreme Court confirmed that there is no heckler’s veto under the government speech doctrine. When speaking, the government has the right to speak for itself and to select the views that it wants to express. But the Court acknowledged that sometimes it is difficult to determine whether the government is actually speaking. Specialty license plates have proven to be one of those difficult situations, raising novel and important First Amendment issues. Six circuits have reached four separate conclusions regarding the status of messages on specialty license plates. Three circuits have held that specialty …

The First Amendment: Religious Freedom For All, Including Muslims, Asma Uddin

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

Scholarly Articles

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are "questions of law or fact common to the class." Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are "central" to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla

Scholarly Articles

None available.

Criminal Procedure And The Racial Profiling Issue For Professor Gates And Sergeant Crowley, L. Darnell Weeden

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

First Amendment Martyr, First Amendment Opportunist: Commentary On Larry Flynt's Role In The Free Speech Debate, Rodney A. Smolla

Scholarly Articles

Not available.

Reflections On Breach Of Confidence From The U.S. Experience, Brian C. Murchison

Scholarly Articles

Not available.

Speech Regulation: Why An Injunction Should Be Permissible Under Workplace Discrimination But Is Problematic Under Defamation, Sarah Shyr

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Theology In Public Reason And Legal Discourse: A Case For The Preferential Option For The Poor, Russell Powell

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Words "Which By Their Very Utterance Inflict Injury": Evolving Treatment Of Inherently Dangerous Speech In Free Speech Law And Theory, Rodney A. Smolla

Scholarly Articles

Not available.

The First Amendment, Journalists, And Sources: A Curious Study In "Reverse Federalism", Rodney A. Smolla

Scholarly Articles

Not available.

The Fact-Conjecture Framework In U.S. Libel Law: Four Problems, Brian C. Murchison

Scholarly Articles

A requirement of U.S. defamation law is that an actionable statement be factual in nature, but courts since Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), have had considerable difficulty in distinguishing factual from non-factual statements and in articulating the value of non-factual public discourse in all its diversity. This Article reviews four topics - intent, context, conjecture, and hyperbole - that have been particularly troublesome to courts. It argues for a fresh appraisal of Justice Brennan's dissenting opinion in Milkovich and brings into the conversation the works of several current political theorists on the contributions of passionate political …

The Van Orden And Mccreary County Cases: Closing The Gaps Remaining Between The Established Lines Of Ten Commandments Jurisprudence, Matthew J. Morrison

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Revisiting The American Action For Public Disclosure Of Facts, Brian C. Murchison

Scholarly Articles

None available.

Lawyer Advertising And The Dignity Of The Profession, Rodney A. Smolla

Scholarly Articles

None available.

The Cabining Of Rosenberger: Locke V. Davey And The Broad Nondiscrimination Principle That Never Was, Alan M. Trammell

Scholarly Articles

In Rosenberger (1995), the Supreme Court decided that the University of Virginia could not exclude religious organizations from an activities fund that subsidized student organizations. Nine years later, the Court in Locke v. Davey held that Washington could exclude students of devotional theology from a generally available scholarship program; there was, in the Court’s words, “play in the joints” between what the Establishment Clause forbids and what the Free Exercise Clause requires. The cases seemed to contradict one another.

This Note explores whether Rosenberger announced a broad principle of nondiscrimination with respect to religion and whether Davey reneged on that …

Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla

Scholarly Articles

Not available.