Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity

Traditional free speech doctrine is inadequate to account for modern terrorist speech. Unprotected threats and substantially protected lawful advocacy are not mutually exclusive. This Article proposes recognizing a new hybrid category of speech called “terrorizing advocacy.” This is a type of traditionally protected public advocacy of unlawful conduct that simultaneously exhibits the unprotected pathologies of a true threat. This Article explains why this new category confounds existing First Amendment doctrine and details a proposed model for how the doctrine should be reshaped

The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism

In Caperton v. A.T. Massey Coal Co., decided in 2009, the Supreme Court held for the first time that conduct related to a judicial election campaign violated a litigant’s right to procedural due process because the opposing litigant had contributed an inordinate amount of money to the campaign of one of the justices ruling on the case. The due process danger recognized in Caperton rests on a fear of retrospective gratitude—that is, the fear that the Justice would decide his contributor’s case differently because he was grateful for the litigant’s generous support. The Court’s focus on retrospective gratitude is simultaneously overinclusive and underinclusive. It is overinclusive because it proves far too much: all judges—even federal judges protected by Article III—owe their selection to someone, whether it is a president or a senator, and that has never been deemed to threaten their independence. Yet the due process rule that derives from the decision is also underinclusive, because it makes no reference to the real due process danger of state court elections. This Article argues that the key constitutional problem with the selection of state court judges is for the most part not the initial selection process, but rather the use of majoritarian processes (either retention elections or gubernatorial appointment) to determine judicial retention. It is in this context that all of the constitutional concerns about judicial independence converge because this is the context in which the very real threat to decisional independence arises. A judge’s fears that deciding a particular case in a particular manner could threaten her continued employment could easily skew the decision from a neutral decision grounded in the judge’s independent assessment of the facts and law. This Article argues that life tenure, or, at the very least, some form of formal term limit is required by the Due Process Clause to assure constitutionally required judicial independence. As radical as this recommendation may be, we argue that there is no other way to assure the appearance or reality of fairness, both of which lie at the core of the due process guarantee

Seventh Amendment Right to Jury Trial in Non-Article III Proceedings: A Study in Dysfunctional Constitutional Theory

The right to a jury trial in civil cases, as enumerated in the Seventh Amendment to the United States Constitution, is an integral part of the Bill of Rights. Nevertheless, in this Article, Professor Redish and Mr. La Fave argue that the Supreme Court has failed to preserve this right when Congress has relegated claims to a non-Article III forum. Furthermore, they argue, the Court has done so without providing any basis in constitutional theory to justify such a relinquishment. Professor Redish and Mr. La Fave first examine the Supreme Court\u27s interpretation of the Seventh Amendment in instances where Congress has remained silent on the issue of the availability of a jury trial. They proceed to examine the Court\u27s contrasting response when Congress has explicitly directed that adjudication be held in a non-Article III forum, without a jury. In an effort to explain the Court\u27s approach to Seventh Amendment interpretation, they advance several possible doctrinal models, none of which, in their view, satisfactorily explains the Court\u27s apparent deference to Congress\u27s decision not to allow a jury trial. They suggest that the only rational explanation for the Court\u27s current Seventh Amendment jurisprudence is functionalism: deferring to Congress\u27s determination that some social or political objective outweighs constitutional considerations. They conclude that such deference by the Court, as the guardian of the Constitution, is not only unprincipled, but that such a practice actually endangers the supremacy of the Constitution and undermines the judiciary as the countermajoritarian check on the majoritarian branches of government

The Right of Publicity and the First Amendment in the Modern Age of Commercial Speech

The so-called right of publicity gives individuals a legally protected interest against commercially motivated communicators’ use of their names or likenesses for purposes of commercial gain. Although the right is sometimes viewed as a subcategory of the right of privacy, it may be exercised by the best known celebrities, as well as by the most private individual. It is therefore more properly characterized as a property interest in one’s name and likeness than a protection of one’s privacy. In order to satisfy the concerns of the First Amendment right of free expression, however, the statutory and common law development of the right has always been qualified by a “public interest” exception: the right does not extend to the commercial use of an individual’s name or likeness when either is employed as part of a communication that furthers the public’s interest in acquiring information. This public interest exception, however, has never been applied to the communication of a profit-motivated speaker when the name or likeness is used as part of the commercial promotion of the sale of a product or service. It has long been assumed that such communications are merely commercial advertising, that inherently lack the public importance of expression by the more traditionally protected communications media. This assumption has been made despite the fact that the commercial advertiser may be communicating the exact same information about a celebrity that was given First Amendment like protection when disseminated by the equally commercially motivated media. Although at the time these assumptions were made they were consistent with controlling First Amendment theory and doctrine, courts enforcing the right of publicity appear to have been operating in a time warp over the last thirty years, ignoring all but completely the evolution of a vigorous First Amendment protection of commercial speech. Application of currently accepted doctrinal precepts of commercial speech protection reveal that discrimination against commercial advertisers in invocation of the public interest exception is unambiguously unconstitutional. The only conceivable reason to discriminate against commercial advertisers when they communicate the exact same information about celebrities that is fully protected when disseminated by the commercially motivated communications media is the narrow profit motivation of the advertiser. This, however, is a constitutionally unacceptable basis for distinction; in no other area of First Amendment jurisprudence is a speaker disqualified because of his or her narrow self-interest—even when that interest is purely economic, as in the case of the commercial advertiser. This Article argues that the courts’ willingness to incorporate established precepts of commercial speech protection into their right of publicity calculus is long overdue

Premodern Constitutionalism

The traditional concept of American constitutionalism has long been a basic assumption not subject to tremendous examination. For generations, scholars have understood our Constitution to be the byproduct of a revolutionary war fought for representation and a foundinggeneration concernedwith preventingtyranny in any form. The traditional understandingof American constitutionalism thus consists of two elements: the underlyingprinciple of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea countermajoritarian constraint set against majoritarian power which reveals itself through reverse engineeringfrom the structural Constitution. Over the last few decades, two sets of modernist scholars have attacked the activating devices that deploy the traditional vision of American constitutionalism. Constitutional realists do not claim to dispute the animating purpose of American constitutional governance, but they claim that the complete American Constitution is represented by more than just the entrenched written document. Departmentalists and popular constitutionalists also claim to accept the animating purpose of American constitutionalism, but they also claim that the written Constitution forbids judicial supremacy, or at least that it is neither constitutionally required nor normatively desirable. Neither group acknowledges the other, presumably because they assume they are attacking entirely different aspects of our constitutional structure. But by exposing the fundamental flaws of these two theories and how they irremediably contradict the underlying principle and apparatus, this Article shows modernist attacks on the two primary activating devices of our constitutional government the singular written document and its prophylactic, insulated judicial interpreter are attacks on American constitutionalism itself. We therefore develop a more complete, revamped theoretical explanation of traditional constitutionalism that incorporates this understanding. Premodern constitutionalism understands that the core of American constitutionalism has a tripartite theoretical foundation. It is the principle of skeptical optimism as well as the political apparatus of countermajoritarian constraint of majoritarian power structures, which implements the principle. And it is the two key structural elements necessary to activate the political apparatus an entrenched written constitution and a prophylactic, insulated judiciary empowered to interpret it

Electronic Discovery and the Litigation Matrix

The impact of the technological revolution on the operation of the discovery system in the federal courts has been dramatic. The enormous increase in storage capacity and communication that the use of computers in the corporate world has brought about has correspondingly increased both the burdens and stakes of the discovery process. This Article considers the extent to which these dramatic practical changes have created a need to develop a legal framework especially for the discovery of electronically stored information. Because the burdens of electronic discovery are likely to be substantially more severe than those involved in traditional discovery, the drafters of the Federal Rules of Civil Procedure or the courts should adopt a conditional cost-shifting model solely for use in the electronic discovery context. Ultimately, the model must be informed by the deep structural values underlying the litigation system

The Liberal Case Against the Modern Class Action

Those who classify themselves as liberal generally favor widespread use of class actions as a means of policing corporate misbehavior and protecting the individual worker or consumer against capitalist excesses. In this Essay, however, I take the counterintuitive position that while class action practice could conceivably be modified in ways that make it far more acceptable than it currently is, liberal political theory should be very skeptical of the modern class action device as it currently exists. Defining the foundation of liberal thought as a process-based belief in accountable democratic government and respect for the right of individuals to protect their rights by resort to the judicial process, I find that in all too many cases, the modern class action is substantially inconsistent with this liberal ideal. In their current form, class actions often serve as a means to deceptively alter existing substantive law through backdoor procedural transformation. This undermines both foundational premises of process-based liberalism

Doing it with Mirrors: New York v. United States and Constitutional Limitations on Federal Power to Require State Legislation

This Commentary points out that the decision in New York v. United States is flawed because the Court improperly equated the enclave model of federal power, which recognizes defined areas of state sovereignty, with the enumerated powers model, which merely inquires whether federal action falls within the scope of the federal government\u27s enumerated power. Due to its structure, the Tenth Amendment should be analyzed solely under the enumerated powers model. This Commentary suggests that the limits of federal power over the states are properly found in and defined by the Commerce Clause