Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 4 of 4
Full-Text Articles in Law
Constitutional Moral Hazard And Campus Speech, Jamal Greene
Constitutional Moral Hazard And Campus Speech, Jamal Greene
Faculty Scholarship
One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …
Six Conservatives In Search Of The First Amendment: The Revealing Case Of Nude Dancing, Vincent A. Blasi
Six Conservatives In Search Of The First Amendment: The Revealing Case Of Nude Dancing, Vincent A. Blasi
Faculty Scholarship
The future of political freedom in the United States hardly turns on whether women have a First Amendment right to dance in the nude in bars and peep shows. The future of artistic freedom is perhaps implicated by this question, but only if the law's demand for general principle prohibits judges from treating expressive nudity in those environments as fundamentally different from expressive nudity in ballet performances, museum exhibitions, and films. Barnes v. Glen Theatre, Inc. is an interesting and potentially important case not because of the significance of the specific issue it decided, but because it provoked a lively …
The First Amendment And The Ideal Of Civic Courage: The Brandeis Opinion In Whitney V. California, Vincent A. Blasi
The First Amendment And The Ideal Of Civic Courage: The Brandeis Opinion In Whitney V. California, Vincent A. Blasi
Faculty Scholarship
"[T]he working class and the employing class have nothing in common ....” So began the Preamble to the Constitution of the I.W.W., the Industrial Workers of the World. "Between these two classes a struggle must go on until the workers of the World organize as a class, take possession of the earth, and the machinery of production and abolish the wage system." Nicknamed the Wobblies, this group advocated a form of militant unionism built around the ideal of One Big Union embracing all industries. The I.W.W. enjoyed its strongest appeal among the miners, loggers, agricultural laborers, and construction workers of …
Silence As A Moral And Constitutional Right, Kent Greenawalt
Silence As A Moral And Constitutional Right, Kent Greenawalt
Faculty Scholarship
Like the Fourth Amendment ban on unreasonable searches and seizures, the privilege against self-incrimination stands as a barrier to the government's acquisition of information about criminal activities. The moral analogue in private relations to the Fourth Amendment right is quite straightforward. One person should not rummage about the private spaces of another seeking signs of bad behavior unless he has very powerful reasons. The Fourth Amendment similarly limits the government, generally permitting searches only upon probable cause. The private moral analogue to the Fifth Amendment's right of silence is harder to identify, its analysis is more complex and the judgments …