Law Commons^™

The President's Faithful Execution Duty, Harold H. Bruff

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No abstract provided.

How Presidents Interpret The Constitution, Harold H. Bruff

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No abstract provided.

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

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Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …

Government Speech And Political Courage, Helen Norton

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This short essay addresses Walker v. Texas Div., Sons of Confederate Veterans, Inc., in which a divided Court upheld Texas's rejection of the Sons of Confederate Veterans' request for a specialty license plate that featured the Confederate flag. Although it agrees with the majority that specialty license plates can -- and often do -- reflect the government's own expression that the government should remain free to control without running afoul of the First Amendment, it argues that the Walker Court missed an important opportunity to refine its government speech doctrine. Not only has the Court yet to settle on a …

Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe

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How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in the Constitution’s own Article V. This is so, they claim, because provisions adopted by supermajority vote are more likely to be substantively good. The original Constitution was ratified in just that way, they say, and subsequent changes should be implemented similarly. McGinnis and Rappaport also contend that this substantive goodness is preserved best by a mode of originalist interpretation. In this Review, we press two main arguments. …

The Government's Lies And The Constitution, Helen Norton

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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 …

A Few Thoughts On Free Speech Constitutionalism, Helen Norton

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No abstract provided.

Pragmatic Liberalism: The Outlook Of The Dead, Justin Desautels-Stein

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At the turn of the twentieth century, the legal profession was rocked in a storm of reform. Among the sparks of change was the view that "law in the books" had drifted too far from the "law in action." This popular slogan reflected the broader postwar suspicion that the legal profession needed to be more realistic, more effective, and more in touch with the social needs of the time. A hundred years later, we face a similarly urgent demand for change. Across the blogs and journals stretches a thread of anxieties about the lack of fit between legal education and …

Constitutional Concern, Membership, And Race, Sarah Krakoff

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American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which …

American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin

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In an effort to reexamine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have historically been used to subdue nonstate actors and informal markets that threatened the hegemony of the state and formal market. To this end, the Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth-century criminal policy. Enacted in 1970, RICO provides criminal sanctions for individuals engaged in unacceptable organized activities and …

Real Masks And Real Name Policies: Applying Anti-Mask Case Law To Anonymous Online Speech, Margot E. Kaminski

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The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed …

Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen

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This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose …

Bridging The Great Divide--A Response To Linda Greenhouse And Reva B. Siegel's Before (And After) Roe V. Wade: New Questions About Backlash, Lolita Buckner Inniss

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This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into …

Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff

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Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians "racial or political?" If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories "tribe" and "tribal member" are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. …

Renegotiating The Social Contract, Jennifer S. Hendricks

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This review of The Supportive State: Families, Government and America’s Political Ideals highlights Maxine Eichner’s important theoretical contributions to both liberal political theory and feminist theory, applauding her success in reforming liberalism to account for dependency, vulnerability, and families. The review then considers some implications of Eichner’s proposals and their likely reception among feminists. It concludes that The Supportive State is a sound and inspiring response to recent calls that feminist theory move from being strictly a school of criticism to developing a theory of governance.

Book Review, Derek Kiernan-Johnson

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No abstract provided.

Climate Change And Institutional Competence, Mark Squillace

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No abstract provided.

Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag

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In Nudge, Cass Sunstein and Richard Thaler describe how public and private institutions can improve on individual choices by nudging individuals into making selections that are right for them. Rejecting the Econ-101 caricature of the rational utility maximizer as inaccurate, Sunstein and Thaler apply the insights of behavioral economics to show how institutions can improve the delivery of services. Moving beyond attempts to remedy individual cognitive errors, Sunstein and Thaler also argue for "libertarian paternalism" - which they herald as the "Third Way." This Review assesses their claims critically, finding their development of "nudge" and "choice architecture" to be …

A Distributive Theory Of Criminal Law, Aya Gruber

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In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment-retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in …

The Courts Under President Obama, Scott A. Moss

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No abstract provided.

"We Reserve The Right To Refuse Service To Anyone.", Jennifer S. Hendricks

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This essay is based on remarks at the 2008 teaching conference of the Society of American Law Teachers, on the theme Teaching for Social Change When You're Not Preaching to the Choir. It reflects on my experience as a liberal/progressive teaching constitutional law in a conservative southern state. It also explores the importance of not just training students in the skills of a junior lawyer but also preparing them for their long-term obligations as citizens and members of the bar.

Formalism And Realism In Ruins (Mapping The Logics Of Collapse), Pierre Schlag

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After laying out a conventional account of the formalism vs. realism debates, this Article argues that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented--that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law's empire. We live thus amidst the ruins of formalism and realism. The disputes between these two great determinations of American law continue today, but usually in more localized or circumscribed forms. We see …

Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson

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This article explains that under international law nations are not permitted to use force to impose democracy on other nations and that such an approach is also impracticable and undesirable from a policy perspective.

The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White

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No abstract provided.

Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton

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This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

Foreword, Richard B. Collins

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No abstract provided.

National Identity And Liberalism In International Law: Three Models, Justin Desautels-Stein

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No abstract provided.

Rites And Rights In Afghanistan: The Hazara And The 2004 Constitution, Justin Desautels-Stein

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No abstract provided.

Executive Power And The Public Lands, Harold H. Bruff

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No abstract provided.

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen Norton

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Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers' views are not mistakenly attributed to the government. Consider, for example, Virginia's efforts to ban the Sons of Confederate Veterans' display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of "hate" or "heritage," Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier "VIRGINIA." The Fourth Circuit was unpersuaded, holding that the …