More than a Feeling: Emotion and the First Amendment

First Amendment law has generally been leery of government attempts to change the marketplace of emotions—except when it has not been. Scientific evidence indicates that emotion and rationality are not opposed, as the law often presumes, but rather inextricably linked. There is no judgment, whether moral or otherwise, without emotions to guide our choices. Judicial failure to grapple with this reality has produced some puzzles in the law. Part I of this Symposium contribution examines the intersection of private law, the First Amendment, and attempts to manipulate and control emotions. Only false factual statements can defame, not mere derogatory opinions. Yet trademark law allows exactly the kind of control over nonfactual, emotional appeals that modern defamation law precludes. These two bodies of law thus stand in contrast, one constrained by the First Amendment to cover only facts and the other allowed to reach much further into the dark heart of emotional manipulation. Part II turns to compelled speech, and again finds two contrasting regulations united by their emotional mechanisms, but divided by their constitutional fates. Courts have struck down mandatory smoking warnings in visual form, but have approved mandatory abortion disclosures and ultrasound requirements that operate in the same emotional register. Regardless of whether the regulation involves a direct government mandate or private parties claiming competing rights to influence the audience’s emotional state, then, current First Amendment law doesn’t have a consistent account of the proper role of emotion in speech regulation. Part III suggests that the contradictions of current doctrine could be ameliorated by less distrust of emotion and more acceptance that where information is being conveyed, emotion will regularly follow. Our focus then should not be on whether deployment of emotion is “manipulative,” but whether it is part of a discriminatory or factually misleading regulation. When the government can otherwise constitutionally mandate disclosure, the fact that these disclosures have emotional resonance is not an independent constitutional barrier

Judicializing Politics, Politicizing Law

Since WWII there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. It is no surprise that appointments to both the US Supreme Court and to other federal courts have become partisan political issues. Ferejohn argues that what is at stake, institutionally, is the allocation of legislative power--the power to establish general rules of prospective application

Administrative Process Reform in a Discretionary Age: The Role of Social Consequences

The basic rulemaking procedures of the Administrative Procedure Act have remained intact for thirty-eight years, but now Congress is seriously considering reform of those generic rules. To evaluate the merits of these reform proposals, we must develop criteria against which to judge them. Although procedural reforms are commonly judged against the goals of fairness, accuracy, and procedural efficiency, Professors Schroeder and Magat argue that these are insufficient criteria to apply to administrative process reforms at a time when agencies possess substantial discretion in the rulemaking process. In such a context, procedures have an impact on society in ways not adequately evaluated by the traditional criteria. Discretion means that agencies may choose from a set of possible rules, none of which has been foreclosed by the enabling legislation of the agency. Procedures influence which choices the agency makes and, because these choices alter the regulations and restrictions under which society operates, they affect the social consequences of regulation. This article describes a model of participant behavior necessary to trace the effects of procedures on the social consequences of regulation, articulates a set of criteria to evaluate these social consequences, and then analyzes two frequently proposed generic reforms to the APA: mandatory regulatory impact analysis and oversight by the Office of Management and Budget

The Lawyer As Consensus Builder: Ethics For a New Practice

In this Article, I explore the roles of lawyers in alternative dispute resolution ( ADR ), including traditional roles in arbitration and new roles in mediation and facilitation. I also discuss how conventional ethics rules for lawyers fail to provide guidance and best practices for lawyers who serve in these new roles. State legislatures and professional associations, such as the American Arbitration Association ( AAA ), the Center for Public Resources Institute for Dispute Resolution ( CPR ), and the Association of Conflict Resolution, have adopted ethical codes for mediators and arbitrators. Select professional associations are also developing best practice guides for the provision of ADR services; however, the lack of clarity in the Model Rules is a serious problem. The failure of the Model Rules to recognize the role of lawyers in peacemaking, dispute prevention or resolution, and legal problem solving marks an absence in what is publicly recognized as among the most important roles a lawyer performs - that of a constructive lawyer. Furthermore, the Model Rules misrepresent the legal profession by assuming that representing clients in adversarial matters is the only role lawyers fulfill. Such an assumption fails to give adequate guidance to a lawyer who fulfills a broader, and perhaps, more significant role than that of a hired gun

Griggs v Duke Power: Implications for College Credentialing

This paper is about a court case decided by the U. S. Supreme Court in 1971. Although attorneys recognize that the case is important to businesses, its impact on colleges and universities has been explored by only a few. As this paper will show, Griggs v. Duke Power may have enormously boosted the number of students in college and may have increased the differential in income between high school and college graduates. It may have led to higher tuition, without providing commensurate additional value.Indeed, it could even be a judicial decision whose economic implications have been matched by only a few far more celebrated cases in history such as Gibbons v. Ogden (1824), the Dred Scott decision (1857), and the Schechter Poultry case (1935). The hypothesis of this paper is that Griggs turned a college degree into a "credential." The content of the education did not change, but the degree -- the sheepskin -- became a necessary first step for a decent job.Today, for many jobs, only a degree opens the doors of potential employers' offices. It does not ensure a job -- college graduates often say that it is just a "fishing license" -- but it assures the employer that an applicant has at least a minimum level of skill and accomplishment. In the eyes of an employer, a degree demonstrates that the applicant passed a certain number of classes,completed outside reading, wrote at least a couple of papers, thought critically, and was able to manage his or her life in a way that led to graduation. Such skills -- determination, critical thinking and writing, organization, and independence -- are often valued by employers.Providing such assurance to employers did not always require a college degree, and this credentialing function did not happen by chance. Through a series of court rulings and subsequent legislation, a cumbersome set of legal rules has developed that make it difficult for employers to use testing to find out if an applicant is intelligent, capable, and diligent. As we will see, fear of litigation is always in the background. For many jobs, a college degree has become an alternate means of "testing."This paper will describe Griggs, the environment from which it emerged, and the subsequent judicial and political activity that created such great constraints on testing. It will discuss testing today and then provide economic information suggesting the magnitude of the changes that Griggs may have instigated. While this paper does not "prove" the educational and economic consequences of Griggs, it suggests that additional scholarly work on the impact of Griggs on higher education is appropriate