Legality, Morality, Duality

This Article proposes legal dualism as a novel resolution to one of the central debates in jurisprudence—that between natural law and legal positivism. It holds that the nature of law varies with the purpose for which it is being interpreted. Natural law provides the best account of the law when it serves as a source of moral guidance and legal positivism provides the best account of the law when it does not

Arbitration: Trial by Other Means or Settlement by Other Means?

OVER A CENTURY ago, Oliver Wendell Holmes, Jr. wrote, The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. This definition offered a refreshing realism. It directed those who sought the law to turn away from the abstract legal principles found in dusty books and toward the actual decisions of judges in courts

How Democratic Is the United States Supreme Court?

This article offers a brief sketch of some of Professor Eisgruber\u27s main conclusions, and a few of the key propositions on which they depend. It provides some context for the various responses to Professor Eisgruber\u27s book and his reply

Supreme Court Review of the Foreign Trade Antitrust Improvements Act: A Case of a Misleading Question?

AN ATTORNEY DEFENDING a deposition may at times raise a relatively obscure objection-that the interlocutor has asked a misleading question. The objection is appropriate when any answer will provide erroneous information. The classic example is, Have you stopped beating your wife? As a useful book on the topic explains, If the witness answers [\u27]yes,[\u27] the implication is that he at one time did beat his wife; if he answers \u27no,\u27 it sounds as though he continues to beat her. The query calls naturally for one of two responses and both are misleading

The Inherent Structure of Free Speech Law

To date no one has discovered a set of organizing principles for free speech doctrine, an area of the law that has been criticized as complex, ad hoc, and even incoherent. We provide a framework that distills free speech law down to three judgments: the first about the role of government; the second about the target of government regulation; and the third a constrained cost-benefit analysis. The framework can be summarized by three propositions: first, the Constitution constrains government if it regulates private speech, but not if government speaks, sponsors speech or restricts expression in managing an internal governmental function; second, government regulation is subject to the Free Speech Clause only if it targets communication; and, third, government regulation targeting communication is constitutional if it survives a constrained cost-benefit analysis. We first set forth our general theory and provide examples of its explanatory power. We then argue that our framework finds confirmation in the works of three renowned scholars: Dean Robert Post of Yale Law School on role of government, Professor Jed Rubenfeld of Yale Law School on the target of government regulation and the constraints on balancing, and Judge Richard Posner on cost-benefit analysis. The work of these scholars supports our position in two ways: first, each agrees with part of our framework; and, second, the writings of each are unpersuasive to the extent they are at odds with our rational reconstruction of free speech law

From Four Part Tests to First Principles: Putting Free Speech Jurisprudence into Perspective

(Excerpt) In Part I of this Article, we set out some of the most commonly used tests and doctrines in free speech cases, and discuss how they are applied. These tests include: (1) forum analysis; (2) employee speech; (3) determination of the kind of restriction placed on speech-(a) time, place, or manner, (b) content, (c) viewpoint, or (d) secondary effects; and (4) determination of whether the speech is protected, unprotected, or somehow protected but less so than other speech. For each doctrine and set of tests, we examine the basic determinations that must be made before application and the purposes the doctrines and tests serve. We suggest that all of these tests and doctrines are useful tools to help answer the three basic questions that we believe underlie not only virtually all of free speech jurisprudence, but also the jurisprudence relating to other constitutional rights, and even to tort law. These three basic questions boil down to the following: (1) Assuming that the government has somehow negatively impacted a person\u27s communication, does the government have a constitutional duty to the would-be speaker with respect to its action? (2) If the government has potentially breached a constitutional duty with respect to the plaintiffs speech, has it done so intentionally? and (3) if the government has intentionally targeted the plaintiffs speech, is that restriction justified? Put even more simply, virtually all of the free speech tests and doctrines invented and applied by courts are simply devices to help them determine duty, intention, and justification. After setting out each of the doctrines and its accompanying tests, we show how they can serve as effective shorthand for answers to one or more of these three basic questions, and, as a result, how they have become useful tools in free speech cases. We then explain how major problems arise. The doctrines become counterproductive when the doctrinal categories overwhelm their proper roles as aids to answer the above simple questions. When these doctrines are viewed as independent of and primary to the issues of duty, intention, and justification, rather than as shorthand for the answers to these questions, the doctrines and the cases appear to be incomprehensible and self-contradictory. Finally, we suggest that often judges may fail to properly use the tests as ways to answer the other basic questions because they simply lose track of the role these tests were meant to play. Other times, though, reliance on these doctrines allows judges to present what are inherently normative judgments as nothing more than factual determinations