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Full-Text Articles in Law
The Second Founding And The First Amendment, William M. Carter Jr.
The Second Founding And The First Amendment, William M. Carter Jr.
Articles
Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution …
The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman
The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman
Articles
In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …
"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher
"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher
Faculty Scholarship
No abstract provided.
Holmes's Understanding Of His Clear-And-Present-Danger Test: Why Exactly Did He Require Imminence?, Vincent A. Blasi
Holmes's Understanding Of His Clear-And-Present-Danger Test: Why Exactly Did He Require Imminence?, Vincent A. Blasi
Faculty Scholarship
For all the suggestiveness and staying power of his market-in-ideas metaphor, Justice Oliver Wendell Holmes’s most significant influence on First Amendment law has turned out to be his notion that only imminent harm can justify punishment for expressions of opinion. This emphasis on the time dimension in the calculus of harm is now entrenched in modern doctrine. It is easy to imagine how First Amendment law might have developed differently had Holmes’s peculiar focus on imminence not been a factor in shaping how the freedom of speech has come to be understood in the United States.
Learned Hand's Seven Other Ideas About The Freedom Of Speech, Vincent A. Blasi
Learned Hand's Seven Other Ideas About The Freedom Of Speech, Vincent A. Blasi
Faculty Scholarship
I say “other” because, regarding the freedom of speech, Learned Hand has suffered the not uncommon fate of having his best ideas either drowned out or credited exclusively to others due to the excessive attention that has been bestowed on one of his lesser ideas. Sitting as a district judge in the case of Masses Publishing Co. v. Patten, Hand wrote the earliest judicial opinion about the freedom of speech that has attained canonical status. He ruled that under the recently passed Espionage Act of 1917, writings critical of government cannot be grounds for imposing criminal punishment or the …
When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas
When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas
Journal Articles
Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …
The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.
The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.
Articles
The Thirteenth Amendment’s Framers envisioned the Amendment as providing federal authority to eliminate the “badges and incidents of slavery.” The freemen and their descendants are the most likely to be burdened with the effects of stigma, stereotypes, and structural discrimination arising from the slave system. Because African Americans are therefore the most obvious beneficiaries of the Amendment’s promise to eliminate the legacy of slavery, it is often mistakenly assumed that federal power to eradicate the badges and incidents of slavery only permits remedies aimed at redressing the subordination of African Americans. While African Americans were the primary victims of slavery …
Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi
Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi
Faculty Scholarship
Five years ago, Fred Schauer published an article with the intriguing title: "Do Cases Make Bad Law?" Playing off Holmes' observation that "[g]reat cases like hard cases make bad law," Schauer explored the possibility, as he put it, that "it is not just great cases and hard cases that make bad law, but simply the deciding of cases that makes bad law.” His concern, confirmed and deepened by his characteristically balanced inquiry, was that general principles forged in the resolution of specific legal disputes can suffer by virtue of that provenance. Because such principles by definition are meant to carry …
Book Review, Jennifer L. Behrens
Civil Rights And Civil Liberties: Whose “Rule Of Law”?, William W. Van Alstyne
Civil Rights And Civil Liberties: Whose “Rule Of Law”?, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine
Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine
Articles
Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ...th at his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce."' In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review …
When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler
When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler
Cornell Law Faculty Publications
No abstract provided.
Denial On The Campuses Demonstrably False Ideas Should Not Necessarily Be Protected By Bill Of Rights, Kenneth Lasson
Denial On The Campuses Demonstrably False Ideas Should Not Necessarily Be Protected By Bill Of Rights, Kenneth Lasson
All Faculty Scholarship
At Hopkins and elsewhere, the issue of granting historical revisionists equal access to curricula and classrooms is difficult enough, but it is complicated acutely when student editors become entangled in the black and nefarious thickets of Holocaust denial masquerading as "scholarship." The Johns Hopkins News-Letter is only the most recent university paper to succumb to the blandishments of a group calling itself the "Committee for Open Debate on the Holocaust," which promulgates claims that a plan to systematically rid Germany or Europe of Jews never existed, that no gas chambers ever operated and that the number of Jewish victims has …
Voice In Government: The People, Emily Calhoun
Congressional Power And Free Speech: Levy’S Legacy Revisited, William W. Van Alstyne
Congressional Power And Free Speech: Levy’S Legacy Revisited, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
How Useful Is Judicial Review In Free Speech Cases?, Robert F. Nagel
How Useful Is Judicial Review In Free Speech Cases?, Robert F. Nagel
Publications
No abstract provided.
A Graphic Review Of The Free Speech Clause, William W. Van Alstyne
A Graphic Review Of The Free Speech Clause, William W. Van Alstyne
Faculty Scholarship
This work acts as a spring board for the study of the Free Speech Clause of the First Amendment. It builds useful graphical representations of complex constitutional theories from the ground up, allowing students to follow both development and the application of these theories.
Defamatory Non-Media Speech And First Amendment Methodology, Steven H. Shiffrin
Defamatory Non-Media Speech And First Amendment Methodology, Steven H. Shiffrin
Cornell Law Faculty Publications
In the course of his eloquent commentary upon New York Times Co. v. Sullivan, the late Professor Kalven enthused that the Court had written "an opinion that may prove to be the best and most important it has ever produced in the realm of freedom of speech." This excitement was generated not by the Court's rather narrow holding but rather by the hope that Sullivan would serve as the opening wedge to dislodge the clear and present danger test, to dismantle the "two-level" approach to first amendment analysis (reflected in cases such as Chaplinsky, Beauharnais, and Roth …