Law Commons^™

Really Leaving No Child Behind: How The Supreme Court’S Student Speech Doctrine Compromises Modern Education Reform— And How It Can Use The In Loco Parentis Doctrine To Change It, Scott J. Street

Scott J Street

REALLY LEAVING NO CHILD BEHIND: HOW THE SUPREME COURT’S STUDENT SPEECH DOCTRINE COMPROMISES MODERN EDUCATION REFORM— AND HOW IT CAN USE THE IN LOCO PARENTIS DOCTRINE TO CHANGE IT In June, the Supreme Court decided that a high school principal did not violate one of her student’s First Amendment rights when she punished him for displaying a sign that read “Bong Hits 4 Jesus” as the Olympic torch passed their Alaska school. See Morse v. Frederick, 127 S. Ct. 2618 (2007). But in reaching that conclusion, the Court answered hardly any of the compelling questions that have arisen since it …

Institutions In The Marketplace Of Ideas, Joseph Blocher

Joseph Blocher

If any area of constitutional law has been defined by a metaphor, the First Amendment is the area, and the “marketplace of ideas” is the metaphor. Ever since Justice Holmes invoked the concept in his Abrams dissent, academic and popular understandings of the First Amendment have embraced the notion that free speech, like the free market, creates a competitive environment in which the best ideas ultimately prevail. But as with the free market for goods and services, there are discontents who point to the market failures that make the marketplace metaphor aspirational at best, and inequitable at worst.

Defenders of …

Freedom Of Religion, Avihay Dorfman

Avihay Dorfman

Why it is that the principle of freedom of religion, rather than a more general principle such as liberty or liberty of conscience, figures so prominently in our lived experience and, in particular, in the constitutional commitment to the free exercise of religion? The Paper argues, negatively, that the most prominent answers offered thus far fall short; and positively, that the principle of freedom of religion arises out of a thicker understanding of the much neglected relationship between religious liberty and democracy. Indeed, a proper account of the legitimacy of the democratic process, I argue, dissolves the mystery surrounding freedom …

Surveillance Of Emergent Associations: Freedom Of Association In A Network Society, Katherine J. Strandburg

Katherine J. Strandburg

Recent events have combined to bring of the prospect of using communications traffic data to ferret out suspect groups and investigate their membership and structure to the forefront of debate. While such “relational surveillance” has been around for years, efforts are being made to update traffic analysis to incorporate insights from “social network analysis” -- a means of analyzing relational structures developed by sociologists.1-13 Interest in employing social network analysis for law enforcement purposes was given a huge boost after September 11, 2001 when attention focused on tracking terrorist networks.5,7,9,11,12,14-17 Traffic data, when stored, aggregated, and analyzed using sophisticated computer …

Preaching, Fundraising And The Constitution: On Proselytizing And The First Amendment , Mark Strasser

Mark Strasser

In a series of cases, the Court has suggested that proselytizing, whether or not including solicitation of donations, is entitled to robust constitutional protection. The Court recently affirmed that view in Watchtower Bible and Tract Society of New York, Incorporated v. Village of Stratton. Yet, the relevant jurisprudence is much less clear than either the Court or commentators seem willing to admit. When one considers the cases involving the International Society for Krishna Consciousness (ISKCON), one sees that the protections for proselytizing, especially when involving solicitation, are much weaker than might first be thought. This Article explores the proselytizing cases, …

Dignity - The Enemy From Within: A Theoretical And Comparative Analysis Of Human Dignity As A Free Speech Justification, Guy E. Carmi

Guy E Carmi

This Article challenges the use of human dignity as an independent free speech justification. The articulation of free speech in human dignity terms carries unwarranted potential consequences that may result in limiting free speech rather than protecting it. This possible outcome makes human dignity inadequate as a free speech justification.

This Article also demonstrates why articulations of the rationales behind the argument from dignity are either superfluous, since they are aptly covered by the argument from autonomy, or simply too broad and speech-restrictive to be considered free speech justifications. As a matter of principle, the nexus between freedom of speech …

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline Lipton

Jacqueline D Lipton

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline Lipton

Jacqueline D Lipton

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

Fuck, Christopher M. Fairman

Christopher M Fairman

No abstract provided.

Majoritarian Democracy In A Federalist System: The Late Chief Justice Rehnquist And The First Amendment, Sheri J. Engelken

Sheri Engelken

No abstract provided.

Traditional Values Or New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson

Eric Alan Isaacson

President William Howard Taft, a Unitarian leader whose liberal faith had been viciously attacked by religious conservatives in the 1908 presidential campaign, used the White House as a platform in 1911 to launch a new nonsectarian organization for youth: The Boy Scouts of America (“BSA”). Lately, however, the BSA itself has come under the control of religious conservatives – who in 1992 banned Taft’s denomination from the BSA’s Religious Relationships Committee, and in 1998 threw Taft’s denomination out of its Religious Emblems Program. The denomination’s offense: A tradition of teaching its children that institutionalized discrimination is wrong. Unitarian Universalist religious …

God And Caesar In The Twenty-First Century: What Recent Cases Say About Church-State Relations In England And The United States , Judith Fischer, Chloe Wallace

Judith D. Fischer

This article analyzes current jurisprudence concerning the relationship of church and state in the U.S. and England, with special attention to the U.S. Supreme Court’s recent decisions in the Ten Commandments cases. The co-authors, law professors from the United States and the United Kingdom, present background about the history of religious establishment and church-state jurisprudence in the two countries. They then discuss the effects of each country’s recent cases on the subject. The authors conclude that the two countries are moving closer to each other on the continuum between establishment and disestablishment.

On Boy Scouts And Anti-Discrimination Law: The Associational Rights Of Quasi-Religious Organizations, Erez Reuveni

Erez Reuveni

This paper proposes a tripartite legal approach to analyzing the rights of private, expressive associations. Current law views private associations through a binary lens - either an organization is "religious," or it is "secular." But this dichotomy fails to account for organizations whose animating expressive purpose is both religious and secular. Using the Boy Scouts of America as a case study, this paper develops a third category of private associations, quasi-religious groups, and articulates why the category is necessary and how quasi-religious groups would fit within existing First Amendment jurisprudence. First, the article reviews numerous cases involving the Boy Scouts …

Officials' Obligations To Children: The Perfectionist Response To Liberals And Libertarians, Or Why Adult Rights Are Not Trumps Over The State Duty To Ensure Each Child's Education, Steve Sheppard

Steve Sheppard

Lawmakers must care more to educate children than to cater to their parents. While parents and the state both have roles in childhood development, the difficulty is finding the proper balance. Lawmakers must decide who should determine exposure of children to new and different ideas. Arguments that limit exposure to ideas should be pursued with the good of a child as the desired end, and not the means to some other end. These arguments fall into two categories: negative arguments and affirmative arguments. Affirmative arguments are less likely to be made with ulterior motives in mind. In the spirit of …

What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger

Linda L. Berger

No abstract provided.

"Simply So Different": The Uniquely Expressive Character Of The Openly Gay Individual After Boy Scouts V. Dale, Nancy J. Knauer

Nancy J. Knauer

Boy Scouts v. Dale was uniformly considered a set back for gay rights. Undeniably, it was not a good result for James Dale or other openly gay individuals who would like to participate in the largest youth organization in the U.S. This Article views Boy Scouts v. Dale in a different light and suggests that the expressive character of the openly gay individual endorsed by the majority may signal an opportunity to argue for greater First Amendment protections. The majority recognized that a single avowal of homosexuality imbues the openly gay individual with a uniquely expressive character. Wherever he goes, …