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Full-Text Articles in Law
Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton
Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton
Publications
Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.
The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …
Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton
Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton
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No abstract provided.
They Were Here First: American Indian Tribes, Race, And The Constitutional Minimum, Sarah Krakoff
They Were Here First: American Indian Tribes, Race, And The Constitutional Minimum, Sarah Krakoff
Publications
In American law, Native nations (denominated in the Constitution and elsewhere as “tribes”) are sovereigns with a direct relationship with the federal government. Tribes’ governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection doctrine, classifications that further the federal government’s unique relationship with tribes and their members are subject to rationality review. Yet this deferential approach has recently been subject to criticism and is currently being challenged in the courts. Swept up in the larger drift toward colorblind or race-neutral understandings of the Constitution, advocates and commentators are …
Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton
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 …
How Presidents Interpret The Constitution, Harold H. Bruff
How Presidents Interpret The Constitution, Harold H. Bruff
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No abstract provided.
A Few Thoughts On Free Speech Constitutionalism, Helen Norton
A Few Thoughts On Free Speech Constitutionalism, Helen Norton
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No abstract provided.
Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff
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. …
"We Reserve The Right To Refuse Service To Anyone.", Jennifer S. Hendricks
"We Reserve The Right To Refuse Service To Anyone.", Jennifer S. Hendricks
Publications
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.
Nationalized Political Discourse, Robert F. Nagel
Authorizing Interpretation, Pierre Schlag
Introduction: Symposium On Constitutional Elitism, Robert F. Nagel
Introduction: Symposium On Constitutional Elitism, Robert F. Nagel
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No abstract provided.
Brief Of Lone Wolf, Principal Chief Of The Kiowas, To The Supreme Court Of The American Indian Nations, S. James Anaya
Brief Of Lone Wolf, Principal Chief Of The Kiowas, To The Supreme Court Of The American Indian Nations, S. James Anaya
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No abstract provided.
Progress And Constitutionalism, Robert F. Nagel
A Text Is Just A Text, Paul F. Campos
The Term Limits Dissent: What Nerve, Robert F. Nagel
The Term Limits Dissent: What Nerve, Robert F. Nagel
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No abstract provided.
The Future Of Federalism, Robert F. Nagel
What's Quality Got To Do With It?: Constitutional Theory, Politics, And Education Reform, Phil Weiser
What's Quality Got To Do With It?: Constitutional Theory, Politics, And Education Reform, Phil Weiser
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No abstract provided.
Forty Years In The Desert, Paul F. Campos
Forty Years In The Desert, Paul F. Campos
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The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.
Voice In Government: The People, Emily Calhoun
Terminator 2, Robert F. Nagel
Advocacy And Scholarship, Paul F. Campos
Advocacy And Scholarship, Paul F. Campos
Publications
The apex of American legal thought is embodied in two types of writings: the federal appellate opinion and the law review article. In this Article, the author criticizes the whole enterprise of doctrinal constitutional law scholarship, using a recent U.S. Supreme Court case and a Harvard Law Review article as quintessential examples of the dominant genre. In a rhetorical tour de force, the author argues that most of modern constitutional scholarship is really advocacy in the guise of scholarship. Such an approach to legal scholarship may have some merit as a strategic move towards a political end; however, it has …
Silence And The Word, Paul Campos
Name-Calling And The Clear Error Rule, Robert F. Nagel
Name-Calling And The Clear Error Rule, Robert F. Nagel
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No abstract provided.
Disagreement And Interpretation, Robert F. Nagel
How To Do Things With The First Amendment, Pierre Schlag
How To Do Things With The First Amendment, Pierre Schlag
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No abstract provided.
Political Pressure And Judging In Constitutional Cases, Robert F. Nagel
Political Pressure And Judging In Constitutional Cases, Robert F. Nagel
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No abstract provided.
Advice, Consent, And Influence, Robert F. Nagel
Meeting The Enemy, Robert F. Nagel
Political Law, Legalistic Politics: A Recent History Of The Political Question Doctrine, Robert F. Nagel
Political Law, Legalistic Politics: A Recent History Of The Political Question Doctrine, Robert F. Nagel
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No abstract provided.
Indian Consent To American Government, Richard B. Collins
Indian Consent To American Government, Richard B. Collins
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No abstract provided.