Law Commons^™

Dialectics Of The Right To Freedom Of Religion Or Belief, Peter G. Danchin

Faculty Scholarship

No abstract provided.

'Water Is Life!' (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade

Scholarly Works

Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy “dissent,” including blacklists, …

Brief Of Amici Curiae Legal Scholars In Support Of Equality In Support Of Respondents, Fulton V. City Of Philadelpha, Kyle Velte, David Cruz, Michael Higdon, Anthony Michael Kreis, Shirley Lin, Linda C. Mcclain

Faculty Scholarship

This Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents filed in Fulton v. City of Philadelphia addresses the propriety of an analogy to race discrimination in public accommodation cases involving sexual orientation discrimination. The race analogy in sexual orientation cases proceeds as follows: Advocates and judges widely agree that courts should, and would, reject a religious exemption claim by a public accommodation—such a foster care agency—seeking to turn away an African-American or interracial couple based on the public accommodation’s religious beliefs that Blacks are inferior to whites or that the races should not mix. …

Valuing The Freedom Of Speech And The Freedom To Compete In Defenses To Trademark And Related Claims In The United States, Jennifer E. Rothman

All Faculty Scholarship

This book chapter appears in the CAMBRIDGE HANDBOOK ON INTERNATIONAL AND COMPARATIVE TRADEMARK LAW, edited by Jane C. Ginsburg & Irene Calboli (Cambridge Univ. Press 2020). The Chapter provides an overview of the defenses to trademark infringement, dilution, and false endorsement claims that serve the goals of free expression and fair competition. In particular, the Chapter covers the defenses of genericism, functionality, descriptive and nominative fair use, the Rogers test, statutory exemptions to dilution claims, and the questions of whether and how an independent First Amendment defense applies in light of recent Supreme Court decisions.

In addition to providing a …

The Law Of The Eruv, Michael Lewyn

Scholarly Works

Describes case law governing municipal regulation of the eruv (an artificial enclosure designed to allow observant Jews to carry on the Jewish Sabbath). The article focuses on First Amendment case law, and concludes that a municipality may prohibit eruvin only pursuant to a regulation that is enforced against comparable secular signs.

Antitrust & Corruption: Overruling Noerr, Tim Wu

Faculty Scholarship

We live in a time when concerns about influence over the American political process by powerful private interests have reached an apogee, both on the left and the right. Among the laws originally intended to fight excessive private influence over republican institutions were the antitrust laws, whose sponsors were concerned not just with monopoly, but also its influence over legislatures and politicians. While no one would claim that the antitrust laws were meant to be comprehensive anti-corruption laws, there can be little question that they were passed with concerns about the political influence of powerful firms and industry cartels.

Since …

Monopolizing Free Speech, Greg Day

Scholarly Works

The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This is supposed to maximize social welfare since the market is believed to promote good ideas and condemn bad ones better than the state. Nevertheless, anxiety is mounting that large technology corporations exercise unreasonable power in the marketplace of ideas.

Because the ability of “big tech” to abridge speech …