Gender-Stereotyping Theory, Freedom Of Expression, And Identity,
2020
William & Mary Law School
Gender-Stereotyping Theory, Freedom Of Expression, And Identity, Carlos A. Ball
William & Mary Bill of Rights Journal
This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as …
The Corporate Privacy Proxy,
2020
University of Idaho College of Law
The Corporate Privacy Proxy, Shaakirrah R. Sanders
Cornell Law Review
This Article contributes to the First Amendment corporate privacy debate by identifying the relevance of agriculture security legislation, or ag-gag laws. Ag-gag laws restrict methods used to gather and disseminate information about commercial food cultivation, production, and distribution-potentially creating a "right" to control or privatize nonproprietary information about animal and agribusinesses. Yet, corporate privacy rights are unrecognized as a matter of U.S. constitutional law, which implicates the sufficiency of the justification for ag-gag laws. This Article ponders whether "security" acts as a proxy for an unrecognized right to corporate privacy in the ag-gag context. Part I of this Article surveys …
Is The Establishment Clause Asymmetrical?,
2020
University of Rhode Island
Is The Establishment Clause Asymmetrical?, Sam Foer
Senior Honors Projects
Through numerous Establishment Clause cases, the Supreme Court has concluded that when public educators promote or denigrate religious views in the K-12 classroom, they violate the First Amendment. The Court has found that the protection of ‘freedom of conscience’ is embedded in the purpose of the Establishment Clause, which applies most strictly to the public school setting. This is because the sphere of conscience is most vulnerable to invasion in developing minds, and children are in a captive environment at school - they cannot escape from State instruction. Thus, states, school systems, and teachers who impose their religious beliefs onto …
Hot Off The Press: An Argument For A Federal Shield Law Affording A Qualified Evidentiary Privilege To Journalists In Light Of Renewed Concerns About Freedom Of The Press And National Security,
2020
Loyola Marymount University and Loyola Law School
Hot Off The Press: An Argument For A Federal Shield Law Affording A Qualified Evidentiary Privilege To Journalists In Light Of Renewed Concerns About Freedom Of The Press And National Security, Nicole N. Wentworth
Loyola of Los Angeles Law Review
No abstract provided.
Does The Press Have A Right To Be Wrong?: Fake News, Press Freedom, And Defamation Law In 2021,
2020
California Polytechnic State University, San Luis Obispo
Does The Press Have A Right To Be Wrong?: Fake News, Press Freedom, And Defamation Law In 2021, Nathan T. Danielson
Journalism
The following study analyzes defamation lawsuits filed against Fox News and its on-air personalities by companies that manufactured and maintained voting machines used in the 2020 US presidential election. Smartmatic and Dominion accused Fox in court of broadcasting debunked allegations that the companies had rigged the election against incumbent president (and longtime Fox viewer) Donald Trump. The size of the sought-after damages, and the size of Fox itself, make this the largest “fake news suit” in history. This study explores the merits of the suits, defenses to defamation (particularly opinion, political speech, and retraction) and the potential ramifications of a …
A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech,
2020
University of Michigan Law School
A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz
University of Michigan Journal of Law Reform
In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now …
Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle,
2020
William & Mary Law School
Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin
William & Mary Law Review
Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …
The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional,
2020
Stephen F. Austin State University
The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional, Drew Thornley
Loyola of Los Angeles Law Review
Many people are unaware of a federal copyright statute that requires owners of material published in the United States to furnish the federal government with two copies of each item published. Section 407(a) of the Copyright Act of 1976 (17 U.S.C. § 407) states that “the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication—(1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with …
Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle,
2020
University of Georgia School of Law
Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin
Scholarly Works
Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …
Straight Outta Scotus: Domestic Violence, True Threats, And Free Speech,
2020
Seton Hall University School of Law
Straight Outta Scotus: Domestic Violence, True Threats, And Free Speech, Jessica Miles
University of Miami Law Review
Domestic violence intersects with constitutional, criminal, and civil law in ways that often present challenges for jurists seeking to reconcile conflicting interests in promoting victim safety and protecting the legal rights of those accused of abuse. One current issue presenting such tensions relates to “true threats” of violence which the U.S. Supreme Court considers to be among the categories of speech receiving only limited First Amendment protection. The Supreme Court has yet to indicate what level of intent would be constitutionally sufficient for conviction of a speaker of a true threat and the circuit courts have split on this issue. …
Masterpiece Cakeshop'S Homiletics,
2020
The Michael E. Moritz College of Law, The Ohio State University
Masterpiece Cakeshop'S Homiletics, Marc Spindelman
Cleveland State Law Review
Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, …
The Nfl Player, The Schoolchild, And The Entertainer: When The Term "Free Speech" Is Too Freely Spoken, Exactly "Who's On First?",
2020
Morton College
The Nfl Player, The Schoolchild, And The Entertainer: When The Term "Free Speech" Is Too Freely Spoken, Exactly "Who's On First?", Christian Ketter
Cleveland State Law Review
As America’s media and politicians continue to debate the free speech rights of NFL players, schoolchildren, and entertainers, the dialogue has confused many Americans as to what exactly the First Amendment protects. Chief Justice John G. Roberts ultimately assumes the role of an umpire in many of these issues, guiding the United States Supreme Court to incrementally “call balls and strikes.” In recent years, the Court has umpired employment rights and state action cases, and Roberts’s calls will likely further distance the Court that decided Morse v. Frederick from the one that decided Tinker v. Des Moines. Amid a …
In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration,
2020
Pepperdine University
In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration, Skylar Reese Croy
Pepperdine Dispute Resolution Law Journal
Arguably, binding religious arbitration agreements are constitutionally problematic because they hinder freedom of religion: They inhibit parties’ ability to change their beliefs. However, religious arbitration agreements also offer an outlet for the religiously inclined to further practice their beliefs. This Article offers a middle ground: If a party to a religious arbitration agreement changes religion, he or she can claim a “conscientious objector” status if he or she can prove the agreement violates his or her sincerely held religious beliefs. Courts are allowed to inquire into the sincerity of a person’s religious beliefs. The religious question doctrine — which restricts …
Some Limits On The Judicial Power To Restrict Dissemination Of Discovery,
2020
University of Maine School of Law
Some Limits On The Judicial Power To Restrict Dissemination Of Discovery, Thomas C. Bradley
Maine Law Review
The pretrial process of discovery governed by Federal and Maine Rule of Civil Procedure 26 enables plaintiffs in product liability actions to delve where few people have delved before—into a corporation's internal memoranda, competitive practices, and secret product or design information as well as other less sensitive information in a company's possession. Discovery, in this context as in others, is a powerful tool determined by the courts to be necessary for the just litigation of claims. As a balance to the leeway given parties to compel production of information in discovery, federal and Maine courts have the authority under Federal …
Privileged Violence, Principled Fantasy, And Feminist Method: The Colby Fraternity Case,
2020
University of Maine School of Law
Privileged Violence, Principled Fantasy, And Feminist Method: The Colby Fraternity Case, Martha T. Mccluskey
Maine Law Review
Colby College banned fraternities and sororities in 1984 after many years of unsuccessfully attempting to improve fraternity behavior. Sexual harassment and sex discrimination were major reasons for the college's decision. At first the college withheld official recognition of and financial benefits to the fraternities. Membership in fraternities was not punished, although Colby established a policy prohibiting any participation in fraternities. The college had hoped that without houses, financing, and other support from the administration, the fraternities would disband—particularly once all students who had belonged to the officially sanctioned groups had graduated. Although the sororities soon dissolved, most of the male …
First Amendment “Harms”,
2020
BYU Law
First Amendment “Harms”, Stephanie H. Barclay
Indiana Law Journal
What role should harm to third parties play in the government’s ability to protect religious rights? The intuitively appealing “harm” principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in light of the Supreme Court’s pending cases in Little Sisters of the Poor and Fulton v. City of Philadelphia. While focusing on harm appears at first to provide an appealing, simple, and neutral principle for avoiding other difficult moral questions, the definition of harm …
Public Accommodations & Human Flourishing: Sexual Orientation & Religious Liberty: An Essay In Honor Of Greg Alexander,
2020
Harvard Law School
Public Accommodations & Human Flourishing: Sexual Orientation & Religious Liberty: An Essay In Honor Of Greg Alexander, Joseph William Singer
Cornell Journal of Law and Public Policy
Greg Alexander's monumental contributions to our understanding of property and property law are unequaled. He is also a mensch and that comes through loud and clear in his work. His recent book, Property and Human Flourishing, develops a quasi-Aristotelian theory of property that focuses our attention on the ways property law protects plural incommensurable objective values that regulate social relationships in order to empower us to become the authors of our own lives. This Essay honors him and his contributions by applying his analysis to the fraught question of whether owners of public accommodations must serve the public without regard …
Kansas V. Boettger: On Petition For A Writ Of Certiorari To The Supreme Court Of The State Of Kansas,
2020
S.J. Quinney College of Law, University of Utah
Kansas V. Boettger: On Petition For A Writ Of Certiorari To The Supreme Court Of The State Of Kansas, Paul Cassell, John Ehrett, Allyson N. Ho, Bradley Hubbard, Matthew Scorcio, Philip Axt, Thomas Molloy
Utah Law Faculty Scholarship
This amicus brief in support of Kansas’ petition for certiorari in Kansas v. Boettger discusses the important issue of whether the First Amendment require proof of specific intent to criminally punish violent threats. The brief argues that the First Amendment does not contain any such requirement and that creating any such requirement would interfere with effective prosecution of domestic violence.
The Kansas Supreme Court’s decision over which review is being sought required the state to prove that an abuser had a specific intent to cause fear. If allowed to stand, the decision will make prosecuting and preventing domestic violence even …
Freedom Of The Press In Post-Truthism America,
2020
S.J. Quinney College of Law, University of Utah
Freedom Of The Press In Post-Truthism America, Ronnell Anderson Jones, Lisa Grow Sun
Utah Law Faculty Scholarship
Freedom of the press in America is at a critical crossroads in a number of ways, but one stands out as most fundamental: the stark impact of the current debate over “Post-Truthism.” Press freedom jurisprudence has long been structured around the concept of an audience member’s search for truth in a marketplace of ideas. But social science research increasingly suggests that individual information consumers are in fact often driven by emotion, affirmation of political identity, and the need for cognitive shortcuts, and that they may not possess the truth-seeking, rational processing, or information-updating capabilities that the Court assumes. Whether this …
Unclear Hostility: Supreme Court Discussions Of “Hostility To Religion” From Barnette To American Legion,
2020
University at Buffalo School of Law
Unclear Hostility: Supreme Court Discussions Of “Hostility To Religion” From Barnette To American Legion, Mark Satta
Buffalo Law Review
Appeals to “hostility to religion” have been a regular part of the Supreme Court’s First Amendment jurisprudence for the last eighty years, but in all that time the Court has never provided a clear explanation of what constitutes “hostility to religion.” This lack of explanation has recently become increasingly troubling given the significant role that the concept of “hostility to religion” has played in several high-profile Supreme Court decisions within the last two years, including Masterpiece Cakeshop v. Colorado, Trump v. Hawaii, and American Legion v. American Humanist Association. In this paper, I provide a thorough and detailed history of …
