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School Pronouns and the Compelled-Speech Objection
No full textAmerica’s transgender youth are entrenched in a nationwide mental health crisis. A majority of transgender teenage boys have attempted suicide at least once, and roughly a third of transgender teenage girls have done the same. To mitigate this national emergency, many public school districts have begun requiring their teachers to use transgender students’ preferred names and pronouns. Many conservatives, however, insist that such rules violate the First Amendment’s prohibition of compelled speech.
This article thoroughly dissects that argument and exposes its flaws. It examines the compelled‑speech objection through the lens of the government speech doctrine, weighs countervailing academic‑freedom concerns, proposes a new test for analyzing academic‑freedom challenges under Garcetti v. Ceballos, and concludes that—at least in the K‑12 realm—most compelled‑speech challenges should fail as a matter of law. The article breaks new scholarly ground while providing an argumentative roadmap for practitioners defending public school districts against compelled‑speech claims.
—Philip Seaver‑Hal
Original Understanding, Punishment, and Collateral Consequences
No full textCan Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose. A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not. Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.
This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment. First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine. Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach. Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive. Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes.
Put simply, there is ample evidence that Founding-era thinkers understood punishment to include state-imposed suffering that served retributive and non-retributive purposes. The meaning of punishment was informed by an array of philosophical concepts, historical practices, and an understanding of criminal law and its enforcement built from liberal premises that also are instrumentalist. Many early punishments had stigmatic, incapacitative, or rehabilitative purposes, and reformers often pointed to instrumentalist purposes to justify modification of punishment practices, leaving room for the punishment label to apply to more state-sanctioned deprivations than are currently classified as punishment. By contrast, existing doctrine narrowly conceives the meaning of the term “punishment.” If “purpose” is the lodestar, then the definition of punishment should be broader based on the historical evidence. In an era of overwhelming collateral consequences, lawmakers and judges who take the original meaning of terms seriously for purposes of constitutional interpretation should take note when either classifying or adjudicating the character of a deprivation carried out by the government. These findings furnish grounds for questioning the modern classification of many automatic collateral consequences as non-punitive measures, providing potential limits that are consistent with Founding-era conceptions of punishment
Comparing GDPR Against the United States’ Approach to Data Breach Notification by Examining Texas and California and the Feasibility of a Universal Standard
No full textClimate Change and Human Health: A Synthesis of Scientific Research and State Obligations Under International Law
No full textThis report synthesizes the latest scientific research on the human health effects of climate change and discusses the legal implications of this research, specifically with regards to State obligations under international law. In doing so, the report seeks to provide insights on issues to be analyzed by the International Court of Justice (ICJ) in its upcoming advisory opinion on the legal obligations of States with respect to climate change. It also seeks to enhance the capacity of judges, advocates, and governments to understand these issues in the context of current and future proceedings involving international law obligations related to climate change and human health
Andrew Perrong v. Montgomery County Democratic Committee
No full textUSDC for the Eastern District of Pennsylvani
Kenneth Taggart v. New Century Financial Services Inc
No full textUSDC for the Eastern District of Pennsylvani
