Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- First Amendment (23)
- Constitutional Law (9)
- Election Law (4)
- Law and Politics (4)
- Civil Rights and Discrimination (3)
-
- Intellectual Property Law (3)
- Religion Law (3)
- Air and Space Law (2)
- Health Law and Policy (2)
- Human Rights Law (2)
- Labor and Employment Law (2)
- Legislation (2)
- Torts (2)
- Business Organizations Law (1)
- Civil Procedure (1)
- Computer Law (1)
- Consumer Protection Law (1)
- Criminal Law (1)
- Criminal Procedure (1)
- Entertainment, Arts, and Sports Law (1)
- Food and Drug Law (1)
- Fourteenth Amendment (1)
- Fourth Amendment (1)
- Immigration Law (1)
- International Law (1)
- Internet Law (1)
- Land Use Law (1)
- President/Executive Department (1)
- Privacy Law (1)
- Institution
-
- Selected Works (8)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (4)
- University of San Diego (4)
- Washington and Lee University School of Law (4)
- The University of Akron (2)
-
- University of Florida Levin College of Law (2)
- Brigham Young University (1)
- Columbia Law School (1)
- Fordham Law School (1)
- Maurer School of Law: Indiana University (1)
- Northwestern Pritzker School of Law (1)
- Notre Dame Law School (1)
- SelectedWorks (1)
- St. John's University School of Law (1)
- University of Colorado Law School (1)
- University of Miami Law School (1)
- University of Missouri School of Law (1)
- West Virginia University (1)
- Publication
-
- Lloyd Hitoshi Mayer (3)
- Scholarly Works (3)
- Akron Intellectual Property Journal (2)
- Faculty Publications (2)
- San Diego Law Review (2)
-
- UF Law Faculty Publications (2)
- Washington and Lee Law Review (2)
- Benjamin Geva (1)
- Brigham Young University Prelaw Review (1)
- Center for Gender & Sexuality Law (1)
- Faculty Scholarship (1)
- Fordham Law Review (1)
- Indiana Journal of Law and Social Equality (1)
- John Copeland Nagle (1)
- Katharine Jackson (1)
- Nevada Law Journal (1)
- Northwestern Journal of Law & Social Policy (1)
- Notre Dame Law Review (1)
- Publications (1)
- Randy J Kozel (1)
- San Diego International Law Journal (1)
- Sonia Katyal (1)
- Stephen E Henderson (1)
- University of Miami Law Review (1)
- Washington and Lee Journal of Civil Rights and Social Justice (1)
- Washington and Lee Law Review Online (1)
- West Virginia Law Review (1)
- Publication Type
Articles 1 - 30 of 36
Full-Text Articles in Law
The Terrorist's Veto: Why The First Amendment Must Protect Provocative Portrayals Of The Prophet Muhammad, Daniel Ortner
The Terrorist's Veto: Why The First Amendment Must Protect Provocative Portrayals Of The Prophet Muhammad, Daniel Ortner
Northwestern Journal of Law & Social Policy
No abstract provided.
Drawing The Line For Democratic Choice: How The Petition Clause Can Restore A Citizen’S Right To Participate In Commission-Driven Redistricting, Mateo Forero
Indiana Journal of Law and Social Equality
In this Article, I argue that commission-driven redistricting (and the “apolitical” process enshrined therein) frustrates a citizen’s right to meaningfully participate in electoral design. This right is fundamental, and has long been safeguarded by the First Amendment’s assertion that “Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances.” Accordingly, I propose that courts use the Petition Clause as a constitutional remedy against rules that abridge substantive public input in commission-driven redistricting. To illustrate this claim, I analyze how one commonly …
Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer
Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer
Lloyd Hitoshi Mayer
One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit …
Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer
Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer
Lloyd Hitoshi Mayer
More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law - both before and after the landmark Employment Division v. Smith decision - reveals that the prohibition …
Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer
Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer
Lloyd Hitoshi Mayer
One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit …
Pornography As Pollution, John C. Nagle
Pornography As Pollution, John C. Nagle
John Copeland Nagle
Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread …
Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson
Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson
Stephen E Henderson
Grand Theory Or Discrete Proposal? Religious Accommodations And Health Related Harms, James M. Oleske Jr.
Grand Theory Or Discrete Proposal? Religious Accommodations And Health Related Harms, James M. Oleske Jr.
Washington and Lee Law Review Online
More than a quarter-century has passed since the Supreme Court decided in Employment Division v. Smith that religious accommodations are primarily a matter of legislative grace, not constitutional right. In that time, barrels of ink have been spilled over the merits of the Smith decision. But comparatively little attention has been given to the issue of how legislatures and other political actors should exercise their discretion to grant or deny specific religious accommodations. In their article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, Professor Hillel …
Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson
Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson
Katharine Jackson
This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.
State & Federal Religious Accommodation Bills: Overview Of The 2015-2016 Legislative Session, Public Rights/Private Conscience Project
State & Federal Religious Accommodation Bills: Overview Of The 2015-2016 Legislative Session, Public Rights/Private Conscience Project
Center for Gender & Sexuality Law
Since the Supreme Court’s 2015 decision in Obergefell v. Hodges, which held that laws limiting marriage to opposite-sex couples were unconstitutional, opponents of marriage equality and LGBT rights have largely turned their attention to the enactment of religious exemption laws. These exemptions allow individuals and organizations to violate certain federal, state, and local laws and regulations that conflict with their religious faith. While some proposed bills are state-level variations on the extremely broad and general federal Religious Freedom Restoration Act (RFRA), passed in 1993, a new variety of legislation provides narrower accommodations specifically relating to religious views about sex, …
Tinker, Taylor, Schoolhouse, Speech: The Impact Of The Internet And Social Media On Public School Administrators’ Authority To Control Student Speech, Olivia Broderick
Tinker, Taylor, Schoolhouse, Speech: The Impact Of The Internet And Social Media On Public School Administrators’ Authority To Control Student Speech, Olivia Broderick
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Professional Speech And The First Amendment, Rodney A. Smolla
Professional Speech And The First Amendment, Rodney A. Smolla
West Virginia Law Review
No abstract provided.
The “Ample Alternative Channels” Flaw In First Amendment Doctrine, Enrique Armijo
The “Ample Alternative Channels” Flaw In First Amendment Doctrine, Enrique Armijo
Washington and Lee Law Review
In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the speaker could have …
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Randy J Kozel
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …
Payment Finality And Discharge In Funds Transfers, Benjamin Geva
Payment Finality And Discharge In Funds Transfers, Benjamin Geva
Benjamin Geva
The article explores the occurrence of "final payment" in funds transfers in the form of "accountability" by a bank instructed to pay to a payee/beneficiary. Both the accountability of the drawee/payor bank in a check-collection debit-pull system and that of the beneficiary's bank in a wire-transfer credit-push system are discussed. The article further examines the relationship between "final payment" and the discharge of an obligation paid by means of the "funds transfer." It analyzes relevant provisions of Articles 3, 4, and 4A of the Uniform Commercial Code, sometimes against the background of general common law principles. The article proposes minor …
Virtue, Freedom, And The First Amendment, Marc O. Degirolami
Virtue, Freedom, And The First Amendment, Marc O. Degirolami
Notre Dame Law Review
The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods—as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost. The Article concludes with two speculations. First, it seems we are no longer …
Pleading Actual Malice In Defamation Actions After Twiqbal: A Circuit Survey, Judy M. Cornett
Pleading Actual Malice In Defamation Actions After Twiqbal: A Circuit Survey, Judy M. Cornett
Nevada Law Journal
No abstract provided.
Is Social Media The New Era’S “Water Cooler”? #Notifyouareagovernmentemployee, Sabrina Niewialkouski
Is Social Media The New Era’S “Water Cooler”? #Notifyouareagovernmentemployee, Sabrina Niewialkouski
University of Miami Law Review
Current Free Speech doctrine does not sufficiently protect government employees’ First Amendment rights. There are two major flaws in the test implemented by the Supreme Court in order to find whether the First Amendment protects an employee. First, the Garcetti test, where a government employee loses First Amendment protection if her speech is pursuant to her official duty, is inadequate, overbroad, and should be done away with completely – or at the least interpreted more narrowly. Secondly, the Pickering balancing test is less of a balancing and more of a prioritization of the government’s interests and should be interpreted to …
Panel Iii: Trademarks V. Free Speech In Cyberspace, Sonia Katyal, Robert Weisbein, William Mcgeveran, Brett Frischmann
Panel Iii: Trademarks V. Free Speech In Cyberspace, Sonia Katyal, Robert Weisbein, William Mcgeveran, Brett Frischmann
Sonia Katyal
No abstract provided.
Time, Place, And Manner Restrictions For Firearms: What The First Amendment Can Tell Us About The Future Of Second Amendment Jurisprudence, Jarom Harrison
Time, Place, And Manner Restrictions For Firearms: What The First Amendment Can Tell Us About The Future Of Second Amendment Jurisprudence, Jarom Harrison
Brigham Young University Prelaw Review
No abstract provided.
To Accommodate Or Not To Accommodate: (When) Should The State Regulate Religion To Protect The Rights Of Children And Third Parties?, Hillel Y. Levin, Allan J. Jacobs, Kavita Shah Arora
To Accommodate Or Not To Accommodate: (When) Should The State Regulate Religion To Protect The Rights Of Children And Third Parties?, Hillel Y. Levin, Allan J. Jacobs, Kavita Shah Arora
Washington and Lee Law Review
When should we accommodate religious practices? When should we demand that religious groups instead conform to social or legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion.
Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, courts, scholars, ethicists, and medical practitioners have not offered a consistent way to analyze such cases, so the law is inconsistent. This Article suggests, first, that the lack of consistency is a …
Lawyer Speech In The Regulatory State, Renee Newman Knake
Lawyer Speech In The Regulatory State, Renee Newman Knake
Fordham Law Review
A lawyer’s speech as advisor and advocate not only holds First Amendment value for the client and for the public, but also for the functioning of American democracy. This is supported both by foundational values undergirding the First Amendment as well as Supreme Court doctrine. This Article builds upon that analysis to posit that lawyers for the regulatory state ought not to be treated as government employees for purposes of the First Amendment when engaged in speech about workplace conditions related to curbing abuse of power, corruption, or other illegality. While this position runs counter to the existing precedent of …
If Hip-Hop Were Classified And The Pentagon Papers Had Been Copyrighted: An Analysis Of Whether The Fair Use Defense In Copyright Law Is Broad Enough To Protect First Amendment Concerns, Sean Buchanan
Akron Intellectual Property Journal
This paper will show that copyright law conflicts with the First Amendment in that the fair use doctrine is insufficient to protect the fundamental rights and interests that underlie the First Amendment's protection of speech. To do this, the paper will examine three primary justifications of the First Amendment: individual liberty, the marketplace of ideas, and political participation. The paper will also analyze multiple situations, in which parties bring copyright suits and the defendants claim fair use, to determine whether the fair use doctrine protects the First Amendment. This paper will show that if one accepts either a marketplace of …
Reconciling The "Moral Rights" Of Authors With The First Amendment Right Of Free Speech, John T. Cross
Reconciling The "Moral Rights" Of Authors With The First Amendment Right Of Free Speech, John T. Cross
Akron Intellectual Property Journal
The article concludes that the First Amendment does not significantly limit the enforcement of those moral rights recognized by state and federal law. Several features of moral rights laws support this conclusion. First, many acts that infringe moral rights do not qualify as speech, and therefore receive no First Amendment protection. For example, the droit de suite, or resale right, is clearly constitutional under this rationale, as it involves no speech whatsoever. Second, even when the offending act is speech, most moral rights laws can be justified, depending on the circumstances, by one or more of several arguments. Indeed, many …
Master Metaphors And Double-Coding In The Encounters Of Religion And State, Perry Dane
Master Metaphors And Double-Coding In The Encounters Of Religion And State, Perry Dane
San Diego Law Review
That term “existential encounter” is meant to convey several important ideas. First, it suggests that what is at stake here is not merely a set of legal doctrines or policy prescriptions, but something deeper and more constitutive. The sovereign nation-state, in some sense, looks out at the world around it and sees other entities that do not easily fit into its own internal sovereign architecture. Some of these are other nation-states. Some might be other types of essentially secular, but non-state, human associations. And others are, or should be, communities—large and small, organized or not, united or splintered—whose normative commitment …
Religion In The Public Square, H.E. Baber
Religion In The Public Square, H.E. Baber
San Diego Law Review
The First Amendment to the U.S. Constitution both prohibits the establishment of religion and guarantees its free exercise. There is, however, a tension between the Free Exercise Clause and the Establishment Clause, which has been understood to erect a “wall of separation” between church and state. Prima facie, the Establishment Clause prohibits the state from providing special benefits to institutions or individuals in virtue of their religious affiliations or convictions. The Free Exercise Clause, however, is cited in support of accommodations for individuals who, because of their religious commitments, cannot in good conscience conform to laws or regulations. This seems …
Gone But Not Forgotten: Recognizing The Right To Be Forgotten In The U.S. To Lessen The Impacts Of Data Breaches, Ashley Stenning
Gone But Not Forgotten: Recognizing The Right To Be Forgotten In The U.S. To Lessen The Impacts Of Data Breaches, Ashley Stenning
San Diego International Law Journal
This Comment will explore the right to be forgotten, how it is recognized in the European Union, and the trend toward the existence of such a right in the United States. Additionally, this comment will discuss how the right to be forgotten could lessen the impact data breaches have on individuals through the lens of the Ashley Madison hack. Lastly, this comment will discuss how, if the United States narrowed the scope of the European Union’s concept of the right to be forgotten to fit into the United States’ view of privacy and the First Amendment, the impact of data …
Do Religious Exemptions Save?, Maimon Schwarzschild
Do Religious Exemptions Save?, Maimon Schwarzschild
Faculty Scholarship
No abstract provided.
Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan
Binding The Enforcers: The Administrative Law Struggle Behind Pres. Obama’S Immigration Actions, Michael Kagan
Scholarly Works
President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous …
Politics At Work After Citizens United, Ruben J. Garcia
Politics At Work After Citizens United, Ruben J. Garcia
Scholarly Works
There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the "one percent" in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …