Persons with Disabilities and the Meaning of Constitutional Equal Protection

This Article focuses on the constitutional rights of persons with severe disabilities, arguing that the most severely disabled persons should not always be treated the same way as less severely disabled persons-just as severely and slightly injured tort plaintiffs should not receive equal damage awards. Professor Wright argues that federal constitutional and statutory law does not provide equal protection to persons with severe disabilities. A disabled person does not receive equal protection of the laws by receipt of just any government payment; the government payment must correspond to the circumstances the disabled person is in and the depth of his or her basic need or deprivation. Professor Wright concludes that, when establishing these government payment amounts, standardized but reasonably sensitive categories should be developed, thereby establishing a balance between a purely individualized standard and a crude distinction between severe and non-severe disabilities

Constitutional Constructivism: Possibilities and Prospects

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Retaliation and the Rule of Law in Today's Workplace

The primary aim of this Article is to justify revising and expanding today's law of workplace retaliation. The argument emphasizes, in particular, the meaning and value of the rule of law, in a broad sense, in workplace retaliation cases. As it turns out, based on the rule of law and other values, the case law, on balance, under-protects employees against retaliation by both private and public employers. This holds in typical status-based civil rights and non- discriminatory contexts and in the area of public employee freedom of speech as well

The Unnecessary Complexity of Free Speech Law and the Central Importance of Alternative Speech Channels

This Article documents the unnecessary complexity of the judicial formulations most frequently used in resolving the most common kinds of free speech cases. It is suggested that free speech cases are often dubiously decided because of the sheer distraction of considerations that are really tangential to justify- ing restrictions on speech. Therefore, this Article recommends a more concentrated judicial focus on free speech cases. The better analysis measures the gains and losses in the fulfillment of the purposes underlying the free speech clause, both from the subjective standpoint of the speaker and from the standpoint of other affected parties. These gains or losses due to governmental regulation of speech should be the central judicial concern. They should be measured in light of the purposes underlying the free speech clause, focusing particularly on the value of the options or choices available to speakers and their audiences before and after implementation of the governmental regulation in question

Why Free Speech Cases Are as Hard (and as Easy) as They Are

Some cases are hard, others easy. A moment's thought confirms that free speech cases follow this familiar pattern. But it is sensible and important to ask why any given free speech case is as hard, or as easy, as it is. The same question might be asked about any particular kind of free speech case, as well as about free speech cases in general. The answers to these questions are not themselves easy. Why, for example, are interesting free speech cases not thought of as beyond any rational, principled resolution because of their sheer difficulty? Why are some free speech cases hard, and others easy, and not all roughly equally difficult? Finally, why, given all our efforts and accumulated experiences, are most free speech cases not uncontroversially easy? Answering these questions will take the form of providing an unusual perspective on what is really at stake in free speech cases

A Contractual Approach to Due Process

This Article reinterprets and expands upon the basic Rehnquist approach by means of standard contract law analysis. While some due process contexts, such as those involving claims of prisoners, welfare recipients, or, arguably, public school students, are, at best, no more easily resolved through a contract law analysis, other, at least equally important and frequently litigated cases, including those involving the procedural rights of college students and government employees, are most easily and convincingly resolved along lines suggested by the private law of contracts and con- tract defenses

Free Speech and the Mandated Disclosure of Information

This essay focuses on one element of an important, unresolved question in free speech law. The broader unresolved question concerns how freedom of speech, as a legal and social institution, operates best or most efficiently. Our society has often debated how an economy, as a legal and social institution, functions best. On this analogous question, we have generally concluded that the national economy ought to manifest a mixture of at least minimally voluntary marketplace exchanges' and appropriate forms of government regulation