Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 18 of 18

Full-Text Articles in Law

Free Speech, Rational Deliberation, And Some Truths About Lies, Alan K. Chen Nov 2020

Free Speech, Rational Deliberation, And Some Truths About Lies, Alan K. Chen

William & Mary Law Review

Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech—promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should be classified as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also …


Janus And The Future Of Collective Bargaining: Rhetorically Predicting A First Amendment Right To Negotiation, Thomas J. Freeman, Aaron Mckain, Destynie J.L. Sewell Jul 2020

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 …


Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen Jun 2020

Information Gathering Or Speech Creation: How To Think About A First Amendment Right To Record, Jared Mullen

William & Mary Bill of Rights Journal

No abstract provided.


Saving The Marketplace From Market Failure: Reorienting Marketplace Theory In The Era Of Ai Communicators, Jared Schroeder Jun 2020

Saving The Marketplace From Market Failure: Reorienting Marketplace Theory In The Era Of Ai Communicators, Jared Schroeder

William & Mary Bill of Rights Journal

Artificially Intelligent (AI) communicators represent a new type of actor within public discourse. These entities have played influential roles in recent elections in the U.S. and Europe. This Article examines expression rights for AI actors through the lenses provided by the foundational assumptions of the marketplace of ideas theory and existing free-expression-related rationales regarding non-human actors in the U.S. and European legal systems. The Article contends that the fundamental assumptions of the marketplace model must be revised to focus on the flow of information, the development of truth, rather than the more Enlightenment-oriented competition of ideas that leads to the …


The Bad News Of Good News Club: Obliterating The Wall Between Church & State, Kevin W. Connell Jun 2020

The Bad News Of Good News Club: Obliterating The Wall Between Church & State, Kevin W. Connell

William & Mary Bill of Rights Journal

No abstract provided.


Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens May 2020

Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens

William & Mary Bill of Rights Journal

No abstract provided.


Political And Non-Political Speech And Guns, Gregory P. Magarian May 2020

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.


The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill May 2020

The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill

William & Mary Bill of Rights Journal

No abstract provided.


The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat May 2020

The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat

William & Mary Bill of Rights Journal

No abstract provided.


Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball May 2020

Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball

William & Mary Bill of Rights Journal

This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as …


The Liberty Impact Of Gender, Kingsly Alec Mcconnell Mar 2020

The Liberty Impact Of Gender, Kingsly Alec Mcconnell

Washington Law Review

Can the federal government unilaterally change your gender? In October of 2018, the New York Times revealed that the Trump Administration’s Department of Health and Human Services was considering a new federal definition of “gender.” The policy would redefine gender as a “biological, immutable condition determined by genitalia at birth.” This policy places transsex people at a substantial risk of deprivation of property and speech rights, as gender implicates both property and expression. It also impedes the exercise of substantive due process rights and privileges and immunities. For example, inaccurate gender designations can hinder a transsex parent’s ability to raise …


Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon Jan 2020

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

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

No abstract provided.


The Effects Of Rejecting Mind-Body Dualism On U.S. Law, Matthew W. Lawrence Jan 2020

The Effects Of Rejecting Mind-Body Dualism On U.S. Law, Matthew W. Lawrence

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

While neuroscience continues to make it clearer that mental processes, effects, disorders, and states can be described through physical observation, the metaphysical notion of mind-body dualism still pervades the U.S. legal system. In this Article, I discuss many areas where mind-body dualism holds fast, and others where mind-body dualism has already been explicitly or impliedly rejected. I argue that in most areas, the dualist distinction would have little to no impact on the values the law already describes. However, I argue that rejecting dualism would have an impact on fundamental rights analyses. First Amendment free speech rights, fundamental rights, and …


Free-Speech Formalism And Social Injustice, Stephen M. Feldman Jan 2020

Free-Speech Formalism And Social Injustice, Stephen M. Feldman

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

The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the wealthy …


Stripped: Speech, Sex, Race, And Secondary Effects, Lisa Crooms-Robinson Jan 2020

Stripped: Speech, Sex, Race, And Secondary Effects, Lisa Crooms-Robinson

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

No abstract provided.


Introduction, Dania Matos Jan 2020

Introduction, Dania Matos

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

No abstract provided.


First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern Jan 2020

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …


Free Speech Idealism, Timothy Zick Jan 2020

Free Speech Idealism, Timothy Zick

Faculty Publications

No abstract provided.