Law Commons^™

And The Wall Comes Tumbling Down: How The Supreme Court Is Striking The Wrong Balance Between Majority And Minority Rights In Church And State Cases, Alan Garfield

Alan E Garfield

To Swear Or Not To Swear: Using Foul Language During A Supreme Court Oral Argument, Alan Garfield

Alan E Garfield

This essay considers the provocative question of whether it is strategically wise for a lawyer to use foul language during a Supreme Court oral argument. This issue doesn’t come up often. But it does when a lawyer claims his client’s First Amendment rights were violated when the government punished him for using foul language. If the lawyer doesn’t use his client’s offensive words, he risks conceding that these words are so horrid they warrant suppression. But if he does use the words, he risks alienating justices who find the words unseemly. The essay uses the “fleeting expletives” case that was …

“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield

Alan E Garfield

One might have expected that the Supreme Court’s recent decision in the violent video game case, Brown v. Entertainment Merchants Ass’n, would have been a thoughtful balancing of society’s competing interests in protecting freedom of speech and protecting children from harm. After all, the Supreme Court had held decades earlier that the government could deny minors access to soft-porn, or what the Court called “girlie magazines.” So one could have assumed the Court would seriously consider California’s claim that minors also needed sheltering from the grittier world of violent video game rapes, beheadings, and ethnic cleansings. Yet, as Justice Scalia’s …

Calibrating Copyright Statutory Damages To Promote Speech, Alan Garfield

Alan E Garfield

Copyright and the First Amendment exist in tension. The Supreme Court acknowledges this tension but says that copyright law resolves it with two built-in free speech safeguards: (1) by protecting only the expression of ideas and not the ideas themselves (the idea/expression dichotomy); and (2) by allowing the use of expression under certain circumstances (the fair use doctrine). The problem is that these doctrines are notoriously vague, so users often cannot know ex ante whether their uses will be immune from liability. This unpredictably might be tolerable if users could be confident that, if they were subject to liability, any …

Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield

Alan E Garfield

One of the nation’s more profound and volatile ideological divides is between fundamentalist religious adherents and secular members of society. This divide has been particularly salient in recent years as issues challenging traditional religious morality – abortion, gay marriage, and stem-cell research – have been exploited as wedge issues for political gain. In this Article, I join the efforts of other scholars to find a way to bridge the gap between religious and secular Americans. By focusing on one particularly contentious front in the religious-secular wars – the teaching of intelligent design – I am able to identify a value …

What Should We Celebrate On Constitution Day?, Alan Garfield

Alan E Garfield

Congress recently created a new national observance, Constitution Day, to be marked each year on September 17th. This observance presents a valuable opportunity for the vastly diverse American populace to celebrate its shared values. But what, exactly, should Americans celebrate about the Constitution? The Constitution’s text is hardly perfect, and judicial interpretations of the Constitution are themselves problematic. To identify what Americans should celebrate on Constitution Day, this article sets out to identify the Constitution’s core meaning for Americans. To do so, it first draws lessons from two contemporary Establishment Clause disputes (one over the teaching of intelligent design and …

Protecting Children From Speech, Alan E. Garfield

Alan E Garfield

Public concern about minor access to inappropriate speech (violent, sexual, vice advertising) has led to an onslaught of regulatory responses in recent years. Courts have wrestled with the constitutionality of these regulations but their decisions have provided little clarity as to what legislators may or may not do. In this Article, I guide legislators and judges through the thicket of child-protection censorship. I cut through the mass of precedent, empirical studies, and scholarship to distill the child-protection/free speech conflict into a series of comprehensible questions. By identifying the key questions underlying the conflict, I draw attention to the core constitutional …

A Positive Rights Interpretation Of The Establishment Clause, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Mischief Of Cohen V. Cowles Media Co., Alan E. Garfield

Alan E Garfield

For a short, sloppily reasoned 5-4 decision that textbook editors have largely consigned to note status, Cohen v. Cowles Media Co. has had a remarkably insidious influence on First Amendment law. The problem is not so much the decision’s holding. The Supreme Court’s conclusion that newspapers could be liable for breaching a promise of anonymity to a source might actually further speech interests. The problem instead is in Cohen’s reasoning. It is the way in which the Supreme Court so cavalierly dismissed the argument that the First Amendment precluded punishing media defendants for the publication of truthful information. The Court …

Contractarians, Communitarians And Agnostics, Alan E. Garfield

Alan E Garfield

This is a review of the Special Issue on the Corporate Stakeholder Debate: The Classical Theory and Its Critics, 43 AM. J. COMP. L. 150 (1995). While I find all of the contributions to the symposium thoughtful and provocative, I ultimately found the arguments weakened by their lack of empirical support. For so many of the questions posed in the symposium, the empirical data needed to furnish answers was either absent or conflicting. This deficiency left the articles seeming artificial: elegant theories floating without an anchor. I finished the symposium neither a converted contractarian nor communitarian, but an agnostic – …

Paramount: The Mixed Merits Of Mush, Alan E. Garfield

Alan E Garfield

The Article critiques the Delaware Supreme Court’s 1990 decision, Paramount Communications, Inc. v. Time Inc. It argues that Paramount left no clear standards in its wake. While the decision seemed to lean in favor of more managerial discretion in the takeover context, it was not clear how far it leaned, or how closely tied the court’s reasoning was to the peculiar facts of the case. While other commentators critiqued Paramount for its management bias, this article instead focuses on the decision’s murkiness. It considers the merits of moving takeover jurisprudence away from the clearer standards that had been evolving in …

Helping The Casualties Of Creative Destruction: Corporate Takeovers And The Politics Of Worker Dislocation, Alan E. Garfield

Alan E Garfield

This Article’s thesis is that society’s responses to takeover dislocation have been misguided. For a variety of reasons, society has sought to ease takeover dislocation by discouraging takeovers, a process which has only served to protect corporate executives (by entrenching them in power) and not the lower-level employees who need protection most. The Article contends that takeover-related dislocation is no different from other forms of dislocation. It suggests that if policymakers are truly concerned about such dislocation, they should focus less on regulating takeovers and more on addressing issues of worker dislocation directly, such as by giving workers more power …

State Competence To Regulate Corporate Takeovers: Lessons From State Takeover Statutes, Alan E. Garfield

Alan E Garfield

This Article reveals two very different lessons about state competence to regulate corporate takeovers. The first lesson is that some states are enacting anti-takeover legislation for the protectionist purpose of sheltering large local employers. The Article contends that the appropriate response to this legislation is for courts to invalidate it under the Commerce Clause. The second lesson is that some states, most notably Delaware, are enacting anti-takeover legislation to protect a state’s corporate chartering industry. In this instance, federal preemptive intervention is necessary to ensure that state law does not unduly favor management interests at shareholder expense.