Law Commons^™

The Concept Of Religion, Eduardo M. Peñalver

Cornell Law Faculty Publications

Section 5: Speech And Elections, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Holocaust Denial And The First Amendment: The Quest For Truth In A Free Society, Kenneth Lasson

All Faculty Scholarship

From the ashes of the Holocaust we have come once again to learn the terrible truth, that the power of Evil cannot be underestimated. Nor can the effect of the spoken and written word. It has been but a half-century since the liberation of Nazi death camps, a little more than a decade since the First International Conference on the Holocaust and Human Rights, and a few short years since the United States Holocaust Memorial Museum first put on display its documentation of horror. Yet today that form of historical revisionism popularly called "Holocaust denial" abounds worldwide in all its …

The Role Of Religion In Public Life And Official Pressure To Participate In Alcoholics Anonymous, Paul E. Salamanca

Law Faculty Scholarly Articles

If religion is an innate aspect of the human experience, it should not be surprising that Alcoholics Anonymous (A.A.), a widely known and arguably religious support group for problem drinkers, has become a common and effective means of combating alcoholism. Also, it should not be surprising that probation officers, parole officers, judges, bar overseers, wardens, and myriad others exercising state authority routinely push individuals toward A.A. Arguably, however, official referral of problem drinkers to A.A. violates current interpretations of the Establishment Clause because of the quasi-religious nature of the program.

Although separationism helps both church and state, our Constitution does, …

The First Amendment In The Supreme Court: The Future Lies Ahead, Joel Gora

Faculty Scholarship

No abstract provided.

An Analysis Of The Personal Use Principle Under Copyright Law, Hsin-Chih Cheng

LLM Theses and Essays

Personal use is when an individual uses a copyrighted work for private purposes, such as learning or entertainment. Personal use is a right given in the Copyright Clause of the U.S. Constitution, however, an issue arises when the individual wants to make a copy of the copyrighted work. New technologies like photocopying and videotaping make this issue more prominent today. Some copyright owners think that the individual’s copying for private use is harmful to their potential market and they argue for compensation. Does the individual have the right under the personal use principle to reproduce the copyrighted work for private …

Fair Use In American And Continental Laws, Omar M.A. Obeidat

LLM Theses and Essays

Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees …

Permissible Accommodation Of Religion And The Alternative Burden, Ei Ichiro Takahata

LLM Theses and Essays

In this thesis, the author discusses the extent to which the government can afford to give accommodation within the limits of the Establishment Clause. In Chapter II, the author reviews the theory of the permissible accommodation referred to in the Supreme Court of the United States. In Chapter III, the author examines scholarly debates on the accommodation. Then, the author discusses German and Japanese law of the accommodation in Chapter IV. There, those cases suggest the possibility of alternative burdens on religious believers. The alternative burdens are considered the price of the accommodation. The author concludes that the government has …

Children's Rights Vs. Adult Free Speech: Can They Be Reconciled, Loftus Becker

Faculty Articles and Papers

No abstract provided.

Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Carl H. Esbeck

Faculty Publications

It is often said that America's founding was an experiment in government. Certainly few features of the American constitutional settlement left more to future chance--and were more of a break with existing European patterns--than the Establishment Clause set out in the First Amendment. The new Republic sought to rely on transcendent principles to justify its unpre-cedented advancements in human liberty. Concurrently, the Founders reject ed any official or fixed formulation of these principles, for no public credo was to be established by law. So it is more than just a little ironic that the nation's most cherished human rights depend …

Reinvigorating Autonomy: Freedom And Responsibility In The Supreme Court's First Amendment Jurisprudence, Christina E. Wells

Faculty Publications

Part I of this Article explores the conception of autonomy that scholars have generally attributed to the Court and discusses problems with that conception. Part II sets forth an alternative, Kantian conception of autonomy and discusses its implications for a system of laws regulating free expression. Part III analyzes the Court's free speech jurisprudence and its autonomy rationale. It specifically examines both the Court's distinction between content-based and content-neutral regulations of speech and its approach to low-value speech, demonstrating that they reflect a Kantian notion of autonomy. Finally, Part IV discusses the implications of Kantian autonomy for hate speech regulation, …

Generally Applicable Laws And The First Amendment, David S. Bogen

Faculty Scholarship

No abstract provided.

The Costs Of Agencies: Waters V. Churchill And The First Amendment In The Administrative State, Kermit Roosevelt Iii

All Faculty Scholarship

106 Yale L. J. 1233 (1997)

Second-Best Solution: The First Amendment, Broadcast Indecency, And The V-Chip [Comments], Howard M. Wasserman

Faculty Publications

No abstract provided.

Book Review Of Silencing The Opposition: Government Strategies Of Suppression Of Freedom Of Expression, By Craig R. Smith, Jethro K. Lieberman

Other Publications

No abstract provided.

Reading Holmes Through The Lens Of Schauer: The Abrams Dissent, Vincent A. Blasi

Faculty Scholarship

Even the best scholars rarely persuade. Mostly, they illuminate. They make us more discerning readers and interlocutors.

Here I want to illustrate how Frederick Schauer's work on the law of free speech can help us to read what may be the single most influential judicial opinion ever written on that subject, Justice Holmes's famous dissent in Abrams v. United States. So far as I am aware, Schauer has not produced anything like a line-by-line parsing of the Holmes opinion. I claim nevertheless that a reader familiar with Schauer's ideas is far better prepared on that account to understand what Holmes …

Foucault In Cyberspace: Surveillance, Sovereignty, And Hardwired Censors, James Boyle

Faculty Scholarship

This is an essay about law in cyberspace. I focus on three interdependent phenomena: a set of political and legal assumptions that I call the jurisprudence of digital libertarianism, a separate but related set of beliefs about the state's supposed inability to regulate the Internet, and a preference for technological solutions to hard legal issues on-line. I make the familiar criticism that digital libertarianism is inadequate because of its blindness towards the effects of private power, and the less familiar claim that digital libertarianism is also surprisingly blind to the state's own power in cyberspace. In fact, I argue that …

Civilizing Religion, Kurt T. Lash

Law Faculty Publications

Is it appropriate to restrict abortion at any stage in pregnancy on the ground that human life is sacred? Should the public square be open to biblical arguments against homosexuality? Or, to frame the issue in a more scholarly fashion: What role may religious arguments play, if any, either in public debate about what political choices to make or as the private basis of a political choice? In his recent book, Religion in Politics: Constitutional and Moral Perspectives, Michael Perry addresses these questions as a matter of constitutional law and political morality. Perry has been down this road before, most …

Suppressed History Or Distorted History? A Review Of Rosenfeld's The American Aurora, Arthur R. Landever

Law Faculty Articles and Essays

A book review of Richard N Rosenfeld, American Aurora: A Democratic-Republican Returns: The Suppressed History of Our Nation's Beginnings and the Heroic Newspaper That Tried to Report It, Macmillan, 1997.

The Association Of American Law Schools, Section On Mass Communications Law 1997 Annual Conference Panel: Sex, Violence, Children & The Media: Legal, Historical &Empirical; Perspectives, Lili Levi

Articles

No abstract provided.

Good Catholics Should Be Rawlsian Liberals, Leslie C. Griffin

Scholarly Works

No abstract provided.

Petition For Writ Of Certiorari, Northeast Ohio Coalition For The Homeless, Et Al., V. City Of Cleveland, 522 U.S. 931 (1997), Kevin F. O'Neill, David Goldberger, Raymond V. Vasvari, Joan M. Englund

Law Faculty Briefs and Court Documents

No abstract provided.

The Real Reason For Religious Freedom, John H. Garvey

Scholarly Articles

No abstract provided.

The Architecture Of The Establishment Clause, John H. Garvey

Scholarly Articles

No abstract provided.

Compelled Affirmations, Free Speech, And The U.S. Military's Don't Ask, Don't Tell Policy, Tobias Barrington Wolff

All Faculty Scholarship

No abstract provided.

Foreword: The New Estates, Lance Liebman

Faculty Scholarship

Telecommunications Law is under pressure from fast-paced technological advances and changes in the industry structure. As the high-stakes debates plays itself out in federal and state legislatures, agencies and courts, the academic study is struggling to catch up. The author poses provocative questions about the present and future of Telecommunications Law. Of paramount interest are the ill-fitting legal categories that continue to influence crucial determinations about the level of First Amendment protection accorded various communications media, and the reach of Constitutional Takings doctrine that pits incumbent regulated industries against government regulators and up-start competitors looking to shake-up the established order. …

Of Pandas, People, And The First Amendment: The Constitutionality Of Teaching Intelligent Design In The Public Schools, Jay D. Wexler

Faculty Scholarship

Despite the Supreme Court's 1987 decision in Edwards v. Aguillard, striking down Arkansas' statute requiring equal time for the teaching of creationism and evolution, the debate over whether some form of creationism should be taught in public schools has recently enjoyed a resurgence. In this note, Jay Wexler applies the Supreme Court's Establishment Clause to a new variant of creationism that posits the existence of an intelligent designer as an alternative to evolution. Wexler argues that teaching intelligent design theory in the public schools violates the Establishment Clause. After explaining that the Supreme Court has always applied the Establishment Clause …

Spending Limits And The Squandering Of Candidates' Time, Vincent A. Blasi

Faculty Scholarship

Today I begin with a narrow agenda, a single idea, but an extravagant ambition. My narrow agenda is that I wish to address only the topic of campaign spending limits, and only the issue of their constitutionality in the face of First Amendment objections. The policy questions regarding whether spending limits are equitable, efficacious, and/or enforceable are deeply difficult and interesting but beyond my ken on this occasion.

My single idea is that spending limits are best justified on the ground that they protect candidates for office from having to devote an inordinate amount of their time to the task …

The First Amendment In The Supreme Court: The Future Lies Ahead, Joel M. Gora

Faculty Scholarship

No abstract provided.

Two Wrongs Mock A Right: Overcoming The Cohen Maledicta That Bar First Amendment Protection For Newsgathering, Eric Easton

All Faculty Scholarship

In Cohen v. Cowles Media Co., Justice Byron R. White wrote that the First Amendment offers no protection from the enforcement of "generally applicable laws" against newsgatherers and that First Amendment protection applies only to information that has been "lawfully acquired." This Article shows that these doctrines are not only false, but have already done serious damage to First Amendment interests. It surveys lower court decisions from around the country to demonstrate the doctrines' pernicious influence, then it evaluates alternative solutions to the problem. The article concludes that the most effective, if least likely, solution would be a rule that …