This Isn\u27t Lochner, It\u27s the First Amendment: Reorienting the Right to Contract and Commercial Speech

The commercial speech doctrine has long weathered accusations that it is simply an attempt to reinvigorate the laissez-faire protections provided by Lochner v. New York. The modern interpretation of Lochner is generally condemnatory, arguing that its “right to contract” is a symbol of the Supreme Court’s unprincipled decision to impose its own economic preferences upon the nation. Even though Lochnerism itself has been dead for nearly 100 years, some scholars believe that the First Amendment’s commercial speech doctrine is on its way to replicating the defenses provided by the right to contract. The argument goes that because speech pervades essentially all human conduct, including market transactions, the constitutional protection of free speech could serve to invalidate any attempts at regulating the commercial sphere, just like the right to contract did. But these scholars miss a crucial point: unlike the right to contract, the First Amendment’s ambit is necessarily restricted to pure speech. Accordingly, the commercial speech doctrine simply lacks the tools to serve the same role as the right to contract. In truth, Lochner is only a boogeyman when it comes to commercial speech; although there are certainly important discussions to be had about commercial speech, they must be centered on First Amendment principles, not the ominous ghost of Lochnerism. This Note seeks to draw that line once and for all

Alternative Means of Dispute Resolution: Practices and Possibilities in the Federal Government

In the early nineteenth century Alexis de Tocqueville predicted that the law would become a secular religion in the United States, and that every important political question would be turned into a matter for law and litigation.\u27 History once again has proven de Tocqueville\u27s remarkable prescience. Over the past two decades, there has been a staggering increase in litigation.2 Americans now are filing more lawsuits than ever before, and are litigating a wide variety of disputes that previously had been resolved through other means

Some Observations on the Establishment Clause

As evidenced by current interpretations of the establishment clause, lower federal court decisions indicate an increased tendency of hostility toward religion. In this article, Attorney General William French Smith surveys the history of the establishment clause and Supreme Court decisions regarding religious issues. Attorney General Smith then notes the recent success of the Reagan Administration\u27s efforts, through amicus curiae briefs, to advocate an interpretation of the establishment clause which permits the states to take an attitude of benevolent neutrality toward religion. The article then concludes that such a position is both historically and judicially sound

The Effect of O-Phenylphenol on the Growth of Some Fungi Occurring in Wood

It is often difficult or impossible to obtain cultures of wood rotting fungi from pieces of decayed wood placed on agar media, because other fungi present in the wood grow out rapidly and hide or suppress the fungus or fungi responsible for the decay. Trichoderma viride Pers. occurs very commonly in decayed wood, grows rapidly on agar media suitable for the isolation of wood-rotting fungi, and makes the isolation of wood decay fungi difficult. Russell (2) reported that Ophenylphenol added to the culture medium at the rate of 0.06 grams per liter would inhibit the growth of Trichoderma but permit wood rotting fungi to grow, although it did inhibit Merulius lacrymans (Wulf.) Fr., a fungus that causes brown rot. Denyer ( 1) tested 20 species of fungi and found that a medium containing O-phenylphenol had little or no inhibitory effect on fungi that cause white rot and on some of those that cause brown rot, but did inhibit some fungi that cause brown cubical rot. Isolations by the authors from decayed wood from buildings, using a medium containing O-phenylphenol, and involving white and brown rots, often failed to yield any wood rotting fungi. For this reason it seemed desirable to determine the effect of O-phenylphenol in the medium upon the growth of some of the common fungi known to cause either white rot or brown rot