Brandenburg in a Time of Terror

For four decades, the Supreme Court\u27s decision in Brandenburg v. Ohio has been celebrated as a landmark in First Amendment law. In one short unsigned opinion, the Court distanced itself from the embarrassment of the Red Scare and adopted a highly protective test that permits advocacy of unlawful conduct in all but the most dangerous cases. But 9/11 and the threat of terrorism pose a new challenge to Brandenburg. Although the government has not resorted to the excesses of McCarthyism, it has taken disturbing steps to silence the speech of political dissenters. These efforts raise questions about the adequacy of Brandenburg to protect speech during a time of crisis and fear. They also highlight ambiguities in the Brandenburg test that have been largely ignored by courts. For instance, does Brandenburg apply during war as well as peace? Does it apply to private advocacy as well as public advocacy? And is there anything about the current terrorist threat that would make its protections inapplicable? To answer these and other important questions, this Article undertakes a comprehensive reexamination of Brandenburg and the issue of criminal advocacy. It begins by demonstrating that Brandenburg has been gradually eroded by lower courts, both before and after 9/11. It then examines two fundamental questions at the heart of Brandenburg that have never been adequately answered: (1) Why should criminal advocacy be protected in the first place? and (2) How much protection should it receive? The Article argues that criminal advocacy should be protected because it furthers the underlying values of the First Amendment, including the search for truth, self-government, and self-fulfillment. It then rejects claims that criminal advocacy should receive less than full protection and explains, for the first time, that Brandenburg is properly understood as an application of strict scrutiny to a particular category of speech. Finally, the Article draws upon this reconceptualization of Brandenburg to resolve the many ambiguities in its framework. Reprinted by permission of the publisher

Stare Decisis and the Constitution: Four Questions and Answers

This Article joins the growing debate about the relationship between stare decisis and the Constitution by addressing four important questions that have recently been raised: (1) Is stare decisis constitutionally required? (2) Is stare decisis constitutionally prohibited? (3) Can Congress abrogate stare decisis? (4) Should courts defer to the judgments of elected officials when deciding whether to adhere to precedent? My answers to these questions (with some qualifications) are no, no, no, and sometimes. First, as I and several other writers have demonstrated, history does not support the claim that stare decisis is dictated by the Framers\u27 understanding of “judicial power.” Second, stare decisis does not conflict with the Supremacy Clause because the Constitution does not preclude judges from deferring to the reasonable constitutional interpretations of other governmental actors, which is what stare decisis amounts to. Third, Congress cannot abrogate stare decisis because doing so would interfere with the power of courts to choose the methodology by which they determine what the law is, which in turn would undermine their ability to justify their decisions as legitimate. And fourth, courts should defer to the views of elected officials when deciding whether a prior decision has generated significant reliance or rests on outdated facts, but only where those views are based on the superior factfinding capabilities of the other branches. Courts should also give serious weight to the thoughtful and considered judgment of elected officials that a prior decision was egregiously wrong. But courts should not defer to the views of elected officials when deciding whether a prior decision is practically unworkable or a remnant of abandoned doctrine because these are quintessentially legal questions that judges are best equipped to answer. Reprinted by permission of the publisher

Stare Decisis and the Constitution: Four Questions and Answers

This Article joins the growing debate about the relationship between stare decisis and the Constitution by addressing four important questions that have recently been raised: (1) Is stare decisis constitutionally required? (2) Is stare decisis constitutionally prohibited? (3) Can Congress abrogate stare decisis? (4) Should courts defer to the judgments of elected officials when deciding whether to adhere to precedent? My answers to these questions (with some qualifications) are no, no, no, and sometimes. First, as I and several other writers have demonstrated, history does not support the claim that stare decisis is dictated by the Framers\u27 understanding of “judicial power.” Second, stare decisis does not conflict with the Supremacy Clause because the Constitution does not preclude judges from deferring to the reasonable constitutional interpretations of other governmental actors, which is what stare decisis amounts to. Third, Congress cannot abrogate stare decisis because doing so would interfere with the power of courts to choose the methodology by which they determine what the law is, which in turn would undermine their ability to justify their decisions as legitimate. And fourth, courts should defer to the views of elected officials when deciding whether a prior decision has generated significant reliance or rests on outdated facts, but only where those views are based on the superior factfinding capabilities of the other branches. Courts should also give serious weight to the thoughtful and considered judgment of elected officials that a prior decision was egregiously wrong. But courts should not defer to the views of elected officials when deciding whether a prior decision is practically unworkable or a remnant of abandoned doctrine because these are quintessentially legal questions that judges are best equipped to answer. Reprinted by permission of the publisher

Brandenburg in a Time of Terror

For four decades, the Supreme Court\u27s decision in Brandenburg v. Ohio has been celebrated as a landmark in First Amendment law. In one short unsigned opinion, the Court distanced itself from the embarrassment of the Red Scare and adopted a highly protective test that permits advocacy of unlawful conduct in all but the most dangerous cases. But 9/11 and the threat of terrorism pose a new challenge to Brandenburg. Although the government has not resorted to the excesses of McCarthyism, it has taken disturbing steps to silence the speech of political dissenters. These efforts raise questions about the adequacy of Brandenburg to protect speech during a time of crisis and fear. They also highlight ambiguities in the Brandenburg test that have been largely ignored by courts. For instance, does Brandenburg apply during war as well as peace? Does it apply to private advocacy as well as public advocacy? And is there anything about the current terrorist threat that would make its protections inapplicable? To answer these and other important questions, this Article undertakes a comprehensive reexamination of Brandenburg and the issue of criminal advocacy. It begins by demonstrating that Brandenburg has been gradually eroded by lower courts, both before and after 9/11. It then examines two fundamental questions at the heart of Brandenburg that have never been adequately answered: (1) Why should criminal advocacy be protected in the first place? and (2) How much protection should it receive? The Article argues that criminal advocacy should be protected because it furthers the underlying values of the First Amendment, including the search for truth, self-government, and self-fulfillment. It then rejects claims that criminal advocacy should receive less than full protection and explains, for the first time, that Brandenburg is properly understood as an application of strict scrutiny to a particular category of speech. Finally, the Article draws upon this reconceptualization of Brandenburg to resolve the many ambiguities in its framework. Reprinted by permission of the publisher

Permeability evolution across carbonate hosted normal fault zones

Acknowledgements: The authors would like to thank Total E&P and BG Group for project funding and support, and the Industry Technology Facilitator for facilitating the collaborative development (grant number 3322PSD). The authors would also like to express their gratitude to the Aberdeen Formation Evaluation Society and the College of Physical Sciences at the University of Aberdeen for partial financial support. Raymi Castilla (Total E&P), Fabrizio Agosta and Cathy Hollis are also thanked for their constructive comments and suggestions to improve the standard of this manuscript as are John Still and Colin Taylor (University of Aberdeen) for technical assistance in the laboratory. Piero Gianolla is thanked for his editorial handling of the manuscript.Peer reviewedPostprin

Social media marketing in the hospitality industry : is it worth the effort?

This paper explores the impact of hotel social media activity on potential reservations and revenue generation. It does this by firstly exploring the perceptions of senior hotel executives towards the ROI of hotel social media activity. Secondly by data mining hotel reservation data to examine the extent of social media engagement being undertaken by guests with a hotel prior to and post a reservation being made. Thirdly through an experiment using social media advertising to examine its impact on the behaviour of fans and non-fans. The research suggests that social media engagement and advertising do have a positive impact on hotel reservations and revenue generation