Law Commons^™

The Tolerant Society: A Response To Critics, Lee C. Bollinger

Faculty Scholarship

In writing The Tolerant Society I was, and yet remain, interested in the treatment of speech behavior in this country, a treatment notably more liberal than in other Western democracies. Liberality, however, is not its only surprising or distinguishing hallmark; so too is how the world is characterized under the free speech concept.

For some time, even after I began teaching in the first amendment area, the scope and nature of protection afforded speech seemed to me obviously right. But the more I thought about it, the more it seemed to me quite extraordinary. Existing free speech theory provided less …

How Useful Is Civil Rico In The Enforcement Of Criminal Law?, Gerard E. Lynch

Faculty Scholarship

The title of this paper asks what appears to be a simple and important question: Just how much does the availability of extensive private civil remedies for violation of the RICO statute add to the effort to ensure compliance with the norms of criminal law? These remarks address only civil RICO actions by private plaintiffs. The once-rare, but increasingly frequent, civil RICO actions brought by the United States present very different issues. This question is, of course, only a part of any assessment of the value of civil RICO. One may conclude that civil RICO is of little or no …

More Than "Slightly Retro:" The Rehnquist Court's Rout Of Habeas Corpus Jurisdiction In Teague V. Lane, James S. Liebman

Faculty Scholarship

Someone I know, more a student of contemporary fashion than I, sometimes describes people dressed in uniformly dark clothing as "slightly retro." I am not sure of the allusion, but what I can discern leads me to think that the Supreme Court's nonretroactivity decisions beginning with Teague v. Lane are – puns aside – more than just "slightly retro."

The Court's innovation may be stated as follows: For 160 years, Congress empowered federal judges to order state officials to release or retry individuals held in custody in violation of federal law as those federal judges, and not the state officials, …

Harmless Error And The Valid Rule Requirement, Henry Paul Monaghan

Faculty Scholarship

Nearly a decade ago in the pages of this journal, in discussing the nature of overbreadth challenges, I drew attention to what may be characterized as the "valid rule requirement." A defendant in a coercive action always has standing to challenge the rule actually applied to him. This means that he can resist sanctions unless they are imposed in accordance with a constitutionally valid rule, whether or not his own conduct is constitutionally privileged. The valid rule requirement focuses upon the rule as applied to the defendant by the jury instructions. In Pope v. Illinois the Court held that harmless …

O'Er The Land Of The Free: Flag Burning As Speech, Kent Greenawalt

Faculty Scholarship

I am honored to lecture at this school, which has a number of friends, and a much larger circle of scholars whose work I admire. I am honored to lecture in the memory of Melville Nimmer, one of the country's leading thinkers on freedom of speech as well as its foremost expert on copyright. I met Professor Nimmer only once, at a lunch with Vince Blasi. My recollection of the lunch is distinct. Gently and in the most friendly way, but with irrefutable logic, they showed me that a position I had held for more than a decade about immigration …

Insults And Epithets: Are They Protected Speech?, Kent Greenawalt

Faculty Scholarship

It is a privilege to offer a lecture in this series named for Edward J. Bloustein. Not many lecture series honor sitting university presidents who deliver the first lecture in the series; but President Bloustein is the very rare president whose long tenure in office has been accompanied by continuing academic productivity. That achievement is remarkable.

When I tentatively chose this topic a year ago, I knew it involved the application of philosophical insights to serious practical questions, the kind of work that President Bloustein has done so well. I also knew that the search for those aspects of human …