Law Commons^™

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

Animal Legal Defense Fund V. Otter: Industrial Food Production Simply Is Not A Private Matter, Lucy L. Holifield

Journal of Food Law & Policy

About half of the states have either passed or attempted to pass laws aimed at stifling criticism and exposure of factory farms throughout the country. This unwanted exposure is often the result of undercover reporters gaining access to the interior of meat-producing entities by seeking and obtaining employment. Their reports often expose filthy and dangerous conditions, substantial animal abuse, and the incorporation of unfit animal products into the public's food supply.

Clear As Mud: Constitutional Concerns With Clear Affirmative Consent, C. Ashley Saferight

Cleveland State Law Review

Rape and sexual assault laws and policies have shifted significantly in recent years, including the introduction of affirmative consent. Unfortunately, both proponents and critics tend to confuse the issues and falsely equate affirmative consent as a substantive social standard versus a procedural standard for adjudication and punishment. Although affirmative consent generally does not represent a significant change in consent law in the United States, statutes and policies requiring a further requirement that affirmative consent be clear and unambiguous (“clear affirmative consent”) are problematic and raise constitutional concerns. When clear affirmative consent policies are used as an adjudicative standard, they increase …

Keeping It Off The Record: Student Social Media Monitoring And The Need For Updated Student Records Laws, Alice Haston

Vanderbilt Journal of Entertainment & Technology Law

An increasing number of school districts work with private companies to monitor public social media and to notify administrators of alarming student information. Although these services help address challenging school safety issues, the Family Educational Rights and Privacy Act (FERPA) and state law offer little guidance on how districts should store student social media data. This Note encourages states to pass student records laws similar to recent California legislation and urges the Department of Education to clarify the relationship between student social media and education records under FERPA. New state and federal initiatives would help ensure that third parties may …

Government Nonendorsement, Nelson Tebbe

Nelson Tebbe

What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …

Qualified Immunity: 1983 Litigation In The Public Employment Context, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Fifty years after Miranda, courts still do not have clear guidance on the types oftechniques police may use during interrogation. While first-generation tactics (a.k.a. the third degree) are banned, second-generation tactics such as those found in the famous Reid Manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second- generation techniques, if any, are impermissible, and has made no mention of newly developed third-generation tactics that are much less reliant on manipulation. This Article divides second-generation techniques into four categories: impersonation, rationalization, fabrication, and negotiation. After concluding, based on …

Keeping Gideon's Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Lauren Sudeall, Brandon Buskey

Vanderbilt Law School Faculty Publications

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.

The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court's right to counsel jurisprudence in this area has remained stagnant. Critics of the …

Government Speech And The War On Terror, Helen Norton

Publications

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

City Court, Watertown New York, People V. Rogers, Lisa Bartolomeo

Touro Law Review

No abstract provided.

A Benign Prior Restraint Rule For Public School Classroom Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article is a contribution to a symposium on schools and free speech. It advances the claim that the First Amendment doctrines that apply to the classroom should adopt a benign prior restraint rule. In the case of teacher classroom speech, the Garcetti rule should apply where the government’s action in interfering with the speech constitutes a prior restraint—the First Amendment should not reach such interference. In cases where a teacher first speaks and then is later punished for that speech, however, basic notions of due process and the dangers of arbitrary governmental decision making are far more pressing, and …

Bias Crime Legislation: A Constitutional Rebuttal To Sticks And Stones . . ., Diana M. Torres

Akron Law Review

In a recent article, Susan Gellman of the Ohio bar provides perhaps the clearest and most persuasive arguments against these statutes both on constitutional and policy grounds. 5 This paper is, in many respects, a response to her arguments. It will first briefly discuss the need for bias crime legislation. It will then address the various forms of such statutes and respond to the constitutional objections of vagueness, overbreadth and infringement on free speech as set forth in Gellman's article. The paper will analogize the statutes to civil rights and anti-discrimination legislation and the principles behind sentencing discretion. Finally, the …

Teaching Free Speech From An Incomplete Fossil Record, Michael Kent Curtis

Akron Law Review

The second part of this symposium has been devoted to how we teach the Constitution. It has emphasized what gets left out. The reader will see a pattern. Paul Finkelman is a leading scholar on the law of slavery and the Constitution. Paul thinks – and I believe he is correct – that the immense influence of slavery on American constitutional law is too often neglected in our constitutional law courses. James Wilson has studied how political philosophers – Aristotle, Rousseau, James Harrington, and others – have understood the distribution of wealth as a central factor affecting how the constitution …

Jon & Kate Plus The State: Why Congress Should Protect Children In Reality Programming, Dayna B. Royal

Akron Law Review

One is forced to wonder whether any laws exist to protect minors whose personal lives are laid bare as their own parents thrust them into the paparazzi’s spotlight. This article addresses this question, considering the best legal regime for regulating employment of children in reality programming, and suggesting an alternative to the status quo. To that end, Part II begins by identifying the various harms reality programming causes, arguing that participating in reality programming is detrimental both to the individual children who participate and to society in general. Part III surveys the current legal landscape, addressing first the federal law …

Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin

Pepperdine Law Review

The article focuses on role of the U.S. courts in confronting religious laws in dispute resolution of various cases of domestic relations, contracts, and torts. Topics discussed include role of secular courts in maintaining constitutional balance between the free exercise and establishment clauses, constitutional challenges faced by religious adherents, and importance of legal pluralism in the U.S.

Outing Privacy, Scott Skinner-Thompson

Publications

The government regularly outs information concerning people's sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy - a right to limit the government's ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary's reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy's ability to …

The Government's Lies And The Constitution, Helen Norton

Publications

Governments lie. They do so for many different reasons to a wide range of audiences on a variety of topics. Although courts and commentators have extensively explored whether and when the First Amendment permits the government to regulate lies told by private speakers, relatively little attention has yet been paid to the constitutional implications of the government's intentional falsehoods. This Article helps fill that gap by exploring when, if ever, the Constitution prohibits our government from lying to us.

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political …

2007 National Lawyer’S Convention The Federalist Society And Its Federalism And Separation Of Powers Practice Groups Present A Panel Debate On Federalism: Religion, Early America And The Fourteenth Amendment, John Eastman, Marci Hamilton, William H. Pryor Jr.

University of Massachusetts Law Review

Transcript of the Federalist Society and its Federalism and Separation of Powers Practice Groups panel debate at the 2007 National Lawyers Convention including panelists Dean John Eastman of Chapman University School of Law, Professor Marci Hamilton of the Benjamin N. Cardozo School of Law, and moderated by Hon. William H. Pryor Jr. of the U.S. Court of Appeals, Eleventh Circuit.

Qualified Immunity: 1983 Litigation In The Public Employment Context, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, Courtroom Television Network, Llc V. New York, Courtney Weinberger

Touro Law Review

No abstract provided.

Whistleblowing And Free Speech: Garcetti's Early Progeny And Shrinking Constitutional Rights Of Public Employees, J. Michael Mcguinness

Touro Law Review

No abstract provided.

Evaluating Candidacy Restrictions: The Implications Of New York's Modified Approach, Brian Hodgkinson

Touro Law Review

No abstract provided.

Government Nonendorsement, Nelson Tebbe

Cornell Law Faculty Publications

What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …

Rankings, Reductionism, And Responsibility, Frank Pasquale

Frank A. Pasquale

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …

Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole

Touro Law Review

Analogous to the Dreyfus affair, America's reaction to the events of September 11, 2001, subverted the rule of law to impose penalties on those it viewed as a threat. There are lessons to be learned from both the Dreyfus affair and America's reaction to September 11, 2001.

Lindros V. Governing Board Of Torrance Unified School District , Patrick Callahan

Pepperdine Law Review

No abstract provided.

Breaking Terror's Bank Without Breaking The Law: A Comment On The Usa Patriot Act And The United States Financial War On Terrorism , Carrie L. Folendorf

Journal of the National Association of Administrative Law Judiciary

This comment will discuss the effect of abandoning our Constitution in times of crisis by discussing how Executive Order 13,224 and the USA PATRIOT Act infringe upon our fundamental First Amendment freedoms of association, and how they violate the Due Process Clause of the Fifth Amendment by withholding notice and the opportunity to be heard. Part II will outline legislation which demonstrates how the United States has historically dealt with freezing the assets of designated terrorists, and will include a discussion of the provisions in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the USA PATRIOT Act …

Fair Play: The Tension Between An Athletic Association's Regulatory Power And Free Speech Rights Of Member Schools - The Practical Implications Of Tennessee V. Brentwood, Aaron Echols

Journal of the National Association of Administrative Law Judiciary

This case note focuses on the development of free speech rights and how those free speech rights co-exist with the rights of administrative bodies to regulate the speech and behavior of members. In particular, this case note examines the tension between the free speech rights of member schools trying to advertise the benefits of attending their school and the regulatory interests of an athletic association seeking to ensure fair athletic competition and academic priority over athletics.

Sexual Privacy In The Internet Age: How Substantive Due Process Protects Online Obscenity, Jennifer M. Kinsley

Vanderbilt Journal of Entertainment & Technology Law

Obscenity is one of the narrow categories of speech that has historically lacked First Amendment free-speech protection, and courts and scholars alike have wrestled with the indefinable and often unworkable nature of the obscenity test. The advent of the Internet has both intensified and yet potentially resolved these problems. Recent Supreme Court cases, such as Lawrence v. Texas, suggest that sexually explicit expression that falls outside the scope of the First Amendment may nevertheless be entitled to privacy protection under Fourteenth Amendment substantive due process. Yet Lawrence's potential applicability to online obscenity has created tension in lower-court decisions and produced …

The Curious Life Of In Loco Parentis At American Universities, Philip Lee

Faculty Publications

In this article I trace the legal history, through court opinions, of in loco parentis (Latin for “in the place of the parent”) as applied to the relationship between American universities and their students. I demonstrate that until the 1960s, the in loco parentis doctrine allowed universities to exercise great discretion in developing the “character” of their students without respect to their students’ constitutional rights. The demise of this doctrine forced courts, and universities themselves, to redefine the relationship of universities with their students in important ways.