Foreword: Reliance on State Constitutions—Beyond the New Federalism

The reader will find in what follows in this symposium on the Washington Constitution a splendid sampling of where we have been and where we may be going with the new federalism. The articles evidence a genuine and scholarly regard for the state constitution as a legal document worthy of independent textual, historical, and doctrinal analysis. In certain ways the University of Puget Sound Law Review symposium itself represents something of a turning point in the history of academic commentary on the new federalism

Foreword: Reliance on State Constitutions—Beyond the New Federalism

The reader will find in what follows in this symposium on the Washington Constitution a splendid sampling of where we have been and where we may be going with the new federalism. The articles evidence a genuine and scholarly regard for the state constitution as a legal document worthy of independent textual, historical, and doctrinal analysis. In certain ways the University of Puget Sound Law Review symposium itself represents something of a turning point in the history of academic commentary on the new federalism

“Finishing the Hat”: Reflections on David Skover’s Life in the Law

This Tribute is about Law Professor David Michael Skover, written by his longtime friend, Ronald K.L. Collins. While crafting this Tribute, Collins recalls many personal and professional memories of David Skover. The result is a record of enormous achievement combined with heart-breaking affliction; it is also a chronicle of a man with an unflinching determination to achieve excellence in all things, from mastering his operatic voice to realizing his scholarly objectives

“And Yet It Moves”—The First Amendment and Certainty

Surprisingly few, if any, works on the First Amendment have explored the relation between free speech and certainty. The same holds true for decisional law. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. In what follows, the author teases out— philosophically, textually, and operationally—the significance of that relationship and what it means for our First Amendment jurisprudence. In the process, he examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish to cabin free speech rights. Drawing its satirical title from words purportedly spoken by Galileo when he was persecuted by ecclesiastical inquisitors for defending the heliocentric theory of Copernicus, the Essay argues that many free speech theories (from Milton to Meiklejohn and beyond) have the net effect of constricting our First Amendment freedoms based on uncertain claims to normative benefits and equally uncertain claims of societal harm. In this general sense, many free speech theorists might be viewed as the descendants (albeit kinder ones) of Galileo’s ecclesiastical detractors insofar as they invoke their own certainty of morals (or normative theories) or alleged harms to trump actual facts in order to censor speech. This problem is compounded when First Amendment lawyers must disingenuously pigeonhole their client’s speech into the doctrinal boxes compatible with normative theories. In the duplicitous course of things, bawdy comedy becomes political action, erotic sexual expression becomes self-realization, offensive speech becomes cultural criticism, and imagistic commercial expression becomes consumer information. Strange as it is, in such circumstances falsity is necessarily called into the service of placing a normative face on aberrant expression. By way of a bold counter to all such theories, and duly mindful of the role of real harm in the working scheme of things, the author advances a view of the First Amendment premised less on certainty (and its conceptual cousin, normativity) than on risk—real and substantial risks, properly comprehended. Thus understood, the very idea of risk deserves to be an accepted and preferred part of the calculus of decision-making, be it judicial, legislative or executive. Hence, at the philosophical level, a risk-free First Amendment is a contradiction while at the operational level it is a formula for suppression. Undaunted by the specter of criticism of his own experimental views on the matter, the author invites the kind of First Amendment risk-taking once roundly championed by Justice Louis Brandeis—a brand of freedom though uncertain of its success is nevertheless hopeful of its attainment

Foreword: The Once New Judicial Federalism & Its Critics

The first critic of the once new judicial federalism is also the person credited with being its intellectual godfather —Hans Linde. Back in the pristine years of this constitutional experiment, then Professor Linde warned: A state court cannot undertake to evolve an independent jurisprudence under the state constitution ... by searching ad hoc for some plausible premise in the state constitution only when federal precedents will not support the desired result. Perhaps his influence in this area is attributable to the fact that he is, in a certain sense, both critic and crusader. Of course, the claim needs to be explained. Even so, the larger point remains: from the outset, there have been troubling tenets of the new federalism which have made it quite vulnerable to criticism. As this constitutional movement enters the close of its second decade, scholarly criticism continues. It is that body of criticism which I will consider, if only in a preliminary manner, in this Foreword to the Washington Law Review Symposium on state constitutional law

Utter Lessons

This Tribute is part of the Symposium on State Constitutional Law in Honor of the late Washington State Supreme Court Justice Robert F. Utter that was held on October 23, 2015