Legal History Commons^™

Commercial Speech Protection As Consumer Protection, Felix T. Wu

Articles

The Supreme Court has long said that “the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides.” In other words, consumers—the recipients or listeners of commercial speech—are the ones the doctrine is meant to protect. In previous work, I explored the implications of taking this view seriously in three contexts: compelled speech, speech among commercial entities, and unwanted marketing. In each of those contexts, adopting a listener-oriented approach leads to the conclusion that many forms of commercial speech regulation should receive far less First Amendment scrutiny than …

Revisionist History? Responding To Gun Violence Under Historical Limitations, Michael Ulrich

Faculty Scholarship

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this …

Justifying Copyright In The Age Of Digital Reproduction: The Case Of Photographers, Jessica Silbey

Faculty Scholarship

This Article explores the justification for copyright from two sources: seminal court cases and accounts from photographic authors. It takes as its premise that copyright protection requires justification, not only because creative work is frequently made and disseminated without reliance on copyright, but because, in the age of digital technology, practices of creative production and dissemination have sufficiently changed to question the existing contours of the forty-year-old Copyright Act. Why read the photographers’ stories alongside the court cases? Each present contested views of copyright’s relation to creativity. At times, the photographers’ accounts and the case law strengthen and reinforce each …

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Who Owns The Rules Of War In Today's Post-Post-Cold War?, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

Professor Gabriella Blum's The Paradox of Power observes that international humanitarian law (IHL) has been in a long. term evolution toward putting the principle of "humanitarianism" and civilian protection at its normative and legal center. The Lecture (on which this essay is a commentary) identifies several reasons for this, in particular (within and across liberal democratic societies) social acceptance of IHL as law but also as socially internalized norms that give IHL broad moral legitimacy. Accepting The Paradox of Power's main propositions as cor rect, this Commentary extends its account in several ways. First, The Paradox of Power's combination of …

Immigration Unilateralism And American Ethnonationalism, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …

Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

Acting Differently: How Science On The Social Brain Can Inform Antidiscrimination Law, Susan Carle

Scholarly Articles in Law Reviews & Journals

Legal scholars are becoming increasingly interested in how the literature on implicit bias helps explain illegal discrimination. However, these scholars have not yet mined all of the insights that science on the social brain can offer antidiscrimination law. That science, which researchers refer to as social neuroscience, involves a broadly interdisciplinary approach anchored in experimental natural science methodologies. Social neuroscience shows that the brain tends to evaluate others by distinguishing between "us" versus "them" on the basis of often insignificant characteristics, such as how people dress, sing, joke, or otherwise behave. Subtle behavioral markers signal social identity and group membership, …

Privacy And Security Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Life, Liberty, [And The Pursuit Of Happiness]: Medical Marijuana Regulation In Historical Context, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

The struggle for access to medical marijuana differs from most other battles for therapeutic freedom in American history because marijuana also has a popular, though controversial, nontherapeutic use—delivery of a recreational high. After considering struggles over the medical use of alcohol during prohibition as a precedent, this chapter relates the history of medical marijuana use and regulation in the United States. The bulk of the chapter focuses on the medical marijuana movement from the 1970s to present. This campaign has been one of the prime examples of a successful extrajudicial social movement for freedom of therapeutic choice. With the exception …

October 1, 2019 Broadcast: 'The Rohingya Genocide', Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Speech And Exercise By Private Individuals And Organizations, Kent Greenawalt

Faculty Scholarship

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged …

Whiteness As Innocence, David Simson

Articles & Chapters

Current antidiscrimination law is exceedingly hostile to the project of race-conscious remediation—the conscious use of race to mitigate America’s persistent racial hierarchy. This Article argues that this broad hostility can be traced in significant part to what I call “Whiteness as Innocence” ideology. This ideology is a system of legal reasoning by which the formal principle of equality is filled with the substantive principle of white racial dominance via invocations of white innocence. That is, under this ideology, ideas about white innocence influence legal decisions on who is “alike” and “unalike” and what constitutes “alike” and “unalike” treatment in race-conscious …

Judicial Activism In Trial Courts, Bruce Green, Rebecca Roiphe

Articles & Chapters

No abstract provided.

An Appraisal Of Maqāsid Al-ShariʿAh Classic And Recent Literature: Systematic Analysis, Ahmad Syukran Baharuddin Asb, Wan Abdul Fattah Wan Ismail Wafwi, Lukman Abdul Mutalib Lam, Muhammad Hazim Ahmad Mha, Ruqayyah Razak Rr, Nurul Syahirah Saharudin Nss, Muhammad Aiman Abdull Rahim Maar

Library Philosophy and Practice (e-journal)

Maqāsid al-Shariʿah has been typically defined as the objectives behind the Islamic rulings or the Shariʿah higher intent. This knowledge is very important for the mujtahids and Islamic scholars not only to understand or interpret the Shariʿah legal texts, but also to deduce solutions for contemporary problems faced by Muslims. Maqāsid al-Shariʿah is traditionally divided into three levels of necessity, which are necessities (al-Ḍaruriyyāt), needs (al-Ḥajiyyāt), and luxuries (al-Taḥsiniyyāt). Extensive discussion of maqāsid al-shariʿah in Islamic jurisprudence has led to the classification of five elements of preservation, inter alia, protection of faith or …

Review By Justice John Paul Stevens (Ret.), John Paul Stevens

Michigan Law Review

Review of Noah Feldman's The Three Lives of James Madison: Genius, Partisan, President.

Privacy, Property, And Publicity, Mark A. Lemley

Michigan Law Review

Review of Jennifer E. Rothman's The Right of Publicity: Privacy Reimagined for a Public World.

The Outcome Of Influence: Hitler’S American Model And Transnational Legal History, Mary L. Dudziak

Michigan Law Review

Review of James Q. Whitman's Hitler's American Model: The United States and the Making of Nazi Race Law.

What Corporate Veil?, Joshua C. Macey

Michigan Law Review

Review of Adam Winkler's We the Corporations: How American Business Won Their Civil Rights.

Which Radicals?, Cass R. Sunstein

Michigan Law Review

Review of Jeremy McCarter's Young Radicals: In the War for American Ideals.