16178 research outputs found
Sort by
The End of Balancing? Text, History & Tradition in First Amendment Speech Cases After Bruen
Get PDFThis Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court\u27s increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court\u27s free-speech decisions. The Bruen majority, however, asserted that its novel Second Amendment test eliminating their usage actually comports and accords with how the Court protects free-speech rights. This Article initially illustrates how that assertion is partly correct but largely inaccurate. It then explores critical problems that likely would arise were the Court to impose its text, history, and tradition methodology from Bruen on First Amendment speech cases. In doing so, the Article addresses how this originalistic approach might affect the continued viability of the Court\u27s actual malice standard in defamation law adopted nearly sixty years ago in New York Times Co. v. Sullivan
Trademark Law in a Time of Doctrinal Shifts
No full textPlease join us as Rebecca Tushnet, the Frank Stanton Professor of the First Amendment at Harvard Law School, delivers the 2023 David L. Lange Lecture in Intellectual Property. After clerking for Chief Judge Edward R. Becker of the Third Circuit and Associate Justice David H. Souter on the Supreme Court, Professor Tushnet practiced intellectual property law at Debevoise & Plimpton before beginning teaching. Her publications include Worth a Thousand Words: The Images of Copyright Law (Harvard L. Rev. 2012); Gone in 60 Milliseconds: Trademark Law and Cognitive Science (Texas L. Rev. 2008); and Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It (Yale L.J. 2004). Her work currently focuses on copyright, trademark and false advertising law. Her blog, at tushnet.blogspot.com, has been on the ABA\u27s Blawg 100 list of top legal blogs for the past three years. Arti Rai introduces the speaker
Welfare Now
Get PDFIn evaluating interventions, policymakers should consider both their welfare effects, including their effects on people’s emotional states, and their effects on distributive justice, including their effects on those at the bottom of the economic ladder. The arguments for investigating welfare effects, and effects on distributive justice, are meant as objections to efforts to evaluate behaviorally informed interventions solely in terms of (for example) revealed preferences and effects on participation rates. The arguments are also meant as a plea for investigation and specification of the effects of such interventions on experienced well-being. If interventions give people a sense of security and safety, that is a strong point in their favor; if they make people feel frightened and sad, that is a strong point against them. A central concern is that policymakers sometimes neglect the emotional impact, whether negative or positive, of behaviorally informed interventions. Personalized approaches can promote distributive goals and also target interventions to those who are most likely to be helped by them
Firreside Chat: A Conversation with the FBI General Counsel
No full textDiscussant: Prof. Shane Stansbury, Robinson Everett Distinguished Fellow, Duke Law School
Speaker: Mr. Jason A. Jones, General Counsel, Federal Bureau of Investigation
Note: This event was not recorded
Murder and Money: The Dark Side of Taylor Swift
Get PDFUnder the dramatically named “Slayer Rule,” murderers cannot inherit from their victims. This principle is so intuitive that it is easy to miss critical questions of implementation. One such question is: What if one cannot prove the murder with certainty? Should the Slayer Rule apply only to individuals convicted beyond a reasonable doubt of murder, or should some lower level of proof suffice? This essay examines those questions through an unlikely lens: the music of Taylor Swift
Forensic Evidence and Rule 3.8: What Does the Use of Bite Mark Evidence Tell Us About Prosecutorial Ethics?
Get PDFRule 3.8 of the ABA’s Model Rules of Professional Conduct should include rules that specifically address unethical uses of forensic evidence in criminal prosecutions. Forensic evidence is common in criminal trials. But the traditional rules of ethics do not effectively address the use of forensic evidence. Rule 3.8 should include a rule requiring prompt and full disclosure of information about expert witnesses whom the prosecutor plans to call and all relevant information that the prosecutor knows about a forensic method’s application in the case. Rule 3.8 should also include a requirement that the prosecutor use reasonable diligence to learn about a forensic method and possess a good faith belief that the method’s application in the case will be reliable before introducing the evidence at trial
Science as Superstition: A Model Statute for Changed Science Claims
Get PDFOver the last fifteen years, the legal community has increasingly recognized the role of “changed science” in contributing to wrongful convictions. Changed science wrongful convictions occur when the scientific evidence used to convict a criminal defendant at trial has since been questioned or repudiated by the greater scientific community. To address this issue, seven states have enacted “changed science writs,” providing petitioners who may have been wrongfully convicted with a more reliable state habeas mechanism to challenge their convictions. Under these statutes, petitioners may bring challenges based on now-discredited scientific evidence, new guidelines, expert recantations, and scientific advancements. Importantly, these statutes have provided relief to changed science petitioners more consistently than habeas remedies that were previously available. To aid other states considering whether to enact their own changed science statutes, this Note analyzes the existing state writs and makes recommendations for future statutes. Then, this Note proposes a model statute that encapsulates those recommendations
The Last Black Tobacco Union: Local 208, Segregated Seniority, and the Integrating South
Get PDFAfter federal reforms in the 1930s protected the right to organize, the Tobacco Workers International Union made quick work of mobilizing the American South. Its unions, though segregated, made strides. Yet Black unions’ collective bargaining gains could not transcend one of the South’s most oppressive employment practices: segregated systems for worker seniority. One Black union, Local 208 at Liggett & Myers Tobacco Company in Durham, North Carolina, fought for seniority rights for more than three decades. During this time, the federal government increasingly pressured Southern industry and labor to desegregate. Steadfast, Local 208 refused to merge with any white union until its members attained a more equitable seniority system. This start-to-finish history of Local 208 demonstrates how federal desegregation initiatives both encouraged and interfered with Black workers’ fight against discrimination. Embodying the post–Civil War, pre–Civil Rights Act era of Black Southern tobacco labor, Local 208’s decades-long fight presents a precise illustration of the need for the landmark Title VII remedies soon to come