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

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

Commercial Speech, First Amendment Intuitionism and the Twilight Zone of Viewpoint Discrimination

In this article, I seek to demonstrate that arguments made by scholars against First Amendment protection for commercial speech may be divided into three categories: (1) rationalist, (2) intuitionist, and (3) ideological. I argue that all three forms of opposition to commercial speech protection suffer, either directly or indirectly, from the same fundamental flaw: each constitutes or at the very least facilitates creation of a constitutionally destructive form of viewpoint discrimination. I show that all of the specific rationales for opposing First Amendment protection for commercial speech are fatally and illogically underinclusive: In each case the justification asserted to support reduced protection for commercial speech logically applies with equal force to one or more categories of fully protected non-commercial expression, yet those advocating reduced protection for commercial speech readily provide full protection to the categories of non-commercial expression that suffer from the very same defect. Thus, what superficially appears to constitute a plausible and principled rationale for reducing protection for commercial speech in reality is applied¿irrationally and unjustifiably¿to commercial but not to various forms of fully protected speech. Such irrational underinclusion represents a classic form of sub rosa viewpoint discrimination. In this case, the viewpoint being discriminated against, while not embodied directly in the commercial speech itself, is a belief in a capitalist system of which all commercial speech is a part. Ironically, then, speech which some say should be denied protection because it fails to deal with the political process, in reality is likely excluded from the First Amendment\u27s scope by many for what amount to foundational ideological concerns

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

Constitutional Remedies as Constitutional Law

Virtually all constitutional scholars agree, and the Supreme Court has uniformly held, that our entire system of constitutional democracy is premised in important part on the dictate of judicial review, i.e., the power of the judiciary to exercise the final say as to the meaning of the countermajoritarian Constitution’s provisions. Absent judicial review, the fundamental speed bumps to tyranny that the Framers so carefully inserted into our political structure would be rendered all but useless at best and a fraud on the electorate at worst. Yet puzzlingly, most of the very same scholars and judges assume that the very political branches that the Constitution is designed to restrain will fully control the remedies to be issued. Thus, all the political branches need to do to avoid constitutional control is deny the courts any power to enforce their decisions. Such a logically inconsistent dichotomy indirectly destroys the essence of the judicial review process that is so central to American constitutional democracy. Yet neither constitutional scholars nor the Supreme Court have recognized either the serious logical flaw or the potentially grave practical dangers in vesting in the very branches sought to be controlled by the Constitution the final power to determine the scope—indeed, the existence—of remedies to enforce constitutional dictates. This Article explains the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches. It then explains how judicial inference of constitutional remedies in the face of textual silence on the issue can be justified by principled theories of textual interpretation, highlights the inadequacy of scholarly work in this area, and answers potential counterarguments. Finally, it applies this theory of constitutional remedies to the Supreme Court’s implied remedies jurisprudence

Commercial Speech, First Amendment Intuitionism and the Twilight Zone of Viewpoint Discrimination

In this article, I seek to demonstrate that arguments made by scholars against First Amendment protection for commercial speech may be divided into three categories: (1) rationalist, (2) intuitionist, and (3) ideological. I argue that all three forms of opposition to commercial speech protection suffer, either directly or indirectly, from the same fundamental flaw: each constitutes or at the very least facilitates creation of a constitutionally destructive form of viewpoint discrimination. I show that all of the specific rationales for opposing First Amendment protection for commercial speech are fatally and illogically underinclusive: In each case the justification asserted to support reduced protection for commercial speech logically applies with equal force to one or more categories of fully protected non-commercial expression, yet those advocating reduced protection for commercial speech readily provide full protection to the categories of non-commercial expression that suffer from the very same defect. Thus, what superficially appears to constitute a plausible and principled rationale for reducing protection for commercial speech in reality is applied¿irrationally and unjustifiably¿to commercial but not to various forms of fully protected speech. Such irrational underinclusion represents a classic form of sub rosa viewpoint discrimination. In this case, the viewpoint being discriminated against, while not embodied directly in the commercial speech itself, is a belief in a capitalist system of which all commercial speech is a part. Ironically, then, speech which some say should be denied protection because it fails to deal with the political process, in reality is likely excluded from the First Amendment\u27s scope by many for what amount to foundational ideological concerns