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Reimagining First Amendment Remedies
Full text linkSince the Warren Court\u27s landmark First Amendment decisions of the I 9 6os, the Supreme Court has aggressively deployed the Free Speech Clause to provide broad substantive protections for expressive freedoms. These rules, in theory, should effectively safeguard the marketplace of political ideas and facilitate both speaker and audience autonomy. No matter haw broadly fashioned, however, a constitutional rule is only as strong as the remedies available to enforce it–and far too often, First Amendment remedies are either woefully weak or effectively nonexistent. When a would-be First Amendment plaintiff cannot obtain a meaningful remedy for a proven constitutional violation, the substantive rule will not effectively safeguard expressive activities against government censorship.
In several important areas of First Amendment law, available remedies are inadequate. Government employees who want to blow the whistle on unlawful, or even patently unconstitutional, government conduct must risk discharge and face obstacles in securing future employment. So too, pretextual arrests of journalists engaged in newsgathering activities significantly chill such activity going forward–yet no effective remedy currently exists for this kind of targeted government effort to suppress reporting on matters of public concern. Finally, local zoning ordinances often silence disfavored would-be speakers based on the content of their message through highly selective signage bans-there&y preventing the intended audience from receiving messages they would like to see.
The Supreme Court and all courts must fashion and enforce effective First Amendment remedies. This Article argues that the Supreme Court\u27s entire theory of First Amendment remedies requires both reimagining and reinvigoration. Existing law only imperfectly redresses harms to a would-be speaker and often Jails to remedy harms to the audience at all. The interest of We the People in hearing, seeing, or reading a message needs to be an important part of the remedial analysis-but today just isn\u27t. When the government censors speech, it harms not only the would-be speaker, but also the would-be audience. This Article recalibrates the relationship between harm and remedy via a theoretical framework: (I) enduring equity; ( 2) bounded discretion; (3) proportional relief; ( 4) correlative function; and (5) tangible remedies. First Amendment remedies law must redress effectively both personal and collective expressive injuries. This Article proposes pathways and equitable remedies that will safeguard First Amendment rights comprehensively and effectively–thereby facilitating the process of democratic deliberation
Hand a Relatively Free Hand: Data Privacy in the U.S. and the Unfortunate, but Lawful, Commodification of the Person
No full textThe Internet is not an unchartered territory. On the Internet, norms matter. They interact, regulate, are contested and legitimated by multiple actors. But are they diverse and unstructured, or are they part of a recognizable order? And if the latter, what does this order look like?
This collected volume explores these key questions while providing new perspectives on the role of law in times of digitality. The book compares six different areas of law that have been particularly exposed to global digitality, namely laws regulating consumer contracts, data protection, the media, financial markets, criminal activity and intellectual property law. By comparing how these very different areas of law have evolved with regard to cross-border online situations, the book considers whether cyberlaw is little more than the law of the horse , or whether the law of global digitality is indeed special and, if so, what its characteristics across various areas of law are. The book brings together legal academics with expertise in how law has both reacted to and shaped cross-border, global Internet communication and their contributions consider whether it is possible to identify a particular mediality of law in the digital age.
Examining whether a global law of digitality has truly emerged, this book will appeal to academics, students and practitioners of law examining the future of the law of digitality as it intersects with traditional categories of law.https://scholarship.law.ua.edu/fac_bookchapter/1017/thumbnail.jp
The Price of Criminal Law
Full text linkShould tax dollars pay for more criminal law, better public schools, or a new community center? Different counties will answer the question differently, but facing these tradeoffs is profoundly important to democratic governance. Nonetheless, because the criminal legal system diffuses power and hides and offioads costs, officials and voters do not have to honestly consider that question. These structural features place a hidden thumb on the scale that gives counties more criminal enforcement than they pay for. That is a problem. Too much enforcement is particularly pernicious in criminal law: Incarceration inflicts tremendous suffering, especially in poor communities of color. Suburban voters who do not live in or look like residents of overpoliced communities have no incentive to account for others\u27 suffering. But if their tax dollars had to pay for the entire criminal law apparatus in their community, their financial stake might urge restraint.
Accountability poses a central challenge in criminal law. Because power and funding are diffuse no one knows who to blame. This Article argues that budget constraints provide an important accountability measure for criminal law and that counties should be empowered to make-and be burdened with making-the hard choices. It then articulates the goals to which a democratically accountable budget in criminal law should strive. Such a budget would require government officials to be transparent in setting priorities and respect basic rights such as the right to counsel, the right against being caged in dangerous conditions, and the right to a speedy trial. To protect these rights and respect budgetary balance, budget allocations for indigent defense, carceral facilities, and courts should limit the number of cases prosecutors can bring. Ultimately, this Article aims toward a system in which criminal law is used only to the extent that a local community views its benefits as greater than the suffering it inflicts. It is animated by the instinct that some communities would spend differently if they saw the full financial costs of criminal law
Religious Liberty in the Thirteenth Colony
No full textAcross four decades, John Witte, Jr. has advanced the study of law and religion by retrieving religious sources of law, renewing timeless teachings of religion for today, and reengaging with the difficult issues confronting society. Interdisciplinary, international, and interfaith in scope, Witte’s work has generated an enormous body of scholarship. This collection of essays by leading scholars examines his impact and maps new directions for future exploration.https://scholarship.law.ua.edu/fac_bookchapter/1071/thumbnail.jp
Reproductive Objectification
Full text linkThe American system of rights is individualized - premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate, and autonomous.
This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the humanity of the pregnant person precarious. If the law has no framework for two rights holders in one body, then the pregnant person must be something else entirely. She becomes less of a subject and more of an object - a reproductive vessel, merely the container for another individual rights-holder. Reproductive justice scholars and advocates have long argued that laws purporting to endow the fetus with personhood exacerbate the maternal-fetal conflict and undermine pregnant people\u27s rights. This Article argues, relying on both decades of feminist legal theory and original empirical evidence, that granting full personhood to a fetus has an even more insidious outcome-undermining the legal personhood of women entirely and recategorizing them in the eyes of the law as non-person objects. Looking across cultures and eras, it is unfortunately not difficult to ascertain what might happen when human beings are treated as objects. Such objectification results in almost certain abuse, sometimes of the most horrifying variety
Do Elections Really Have Consequences?: Presidential Indifference, Attenuated Accountability, and Policy Paralysis Within the Administrative State
Full text linkIn theory, the Constitution vests all, not some or most, of the executive power in the President; the buck supposedly stops at the Resolute Desk. Yet current practice falls well short of this constitutional ideal. The conjunction of fixed terms of office, good cause removal limits, and partisan balance requirements for the heads of multi-member independent federal agencies, boards, and commissions can and does leave critically important federal agencies effectively unaccountable to the President. Such a state of affairs existed at the Federal Communications Commission (FCC) from January 20, 2021, until September 25, 2023-over half of President Biden\u27s fouryear term of office-because the agency featured a 2-2 partisan deadlock that prevented it from undertaking any contested policy initiatives. Worse still, this deadlock arose because of defeated-President Donald Trump\u27s appointment of a Republican FCC Commissioner in December 2020. Nathan Simington\u27s FCC appointment to a term of office that extends to 2024, and conceivably until January 2027, made a mockery of the idea that elections have policy consequences and effectively hobbled the FCC under President Eiden until he succeeded in appointing a fifth Democratic Party-affiliated commissioner.
A serious accountability problem arises when an Executive Branch agency is not subject to meaningful presidential control and oversight-an accountability problem that also raises serious separation of powers issues. When a multi-member federal agency lacks a majority of members who support the incumbent presidential administration\u27s regulatory policies and priorities, it becomes entirely implausible to posit that the President can actually supervise its activities ( and reprimand its failures to act as well). Worse still, such circumstances permit the President to have his cake and eat it too by blaming the agency\u27s inaction on his lack of an effective ability to supervise the agency and its work. Even if such a state of affairs might be politically convenient for the President, it cannot be reconciled with a unitary executive model for the presidency. After all, the buck does not stop with the President if the President cannot exercise meaningful day-to-day control and supervision over an agency\u27s work.
If we truly have a unitary executive, then the President must enjoy meaningful supervisory powers over, and hence accountability for, all major executive branch agencies that wield significant policymaking authority-and this authority should exist from day one of the President\u27s term of office. Unfortunately, although the Federal Vacancies Reform Act (VRA) permits the President to name acting principal officers to cabinet departments and presidentially controlled agencies, the law expressly prohibits such acting appointments to any and all federal agencies that feature a multi-member head. This needs to change. Under the VRA, if the President may constitutionally appoint an acting Secretary of State or Attorney General who may exercise the vast, full powers of the office (despite lacking the Senate\u27s advice and consent) no good reasons exist for denying the President an identical power with respect to multi-member federal agencies. Indeed, a single member of a multi-member agency cannot act alone for that agency-rendering such acting appointments more plausibly inferior in character-and thereby reducing any separation of powers concerns. Accordingly, Congress should reform the VRA to empower the President to make acting appointments to independent federal agencies-and thus render it impossible for the President to disclaim the ability to take Care that the Laws be faithfully executed
Exoneration Finance
Full text linkThe path to financial compensation for the wrongfully convicted can be complex and time-consuming. Exonerees often struggle to make ends meet and function in free society, let alone navigate serpentine processes while waiting years for the recovery they deserve. Securing the assistance of an attorney is often a critical step, but too few lawyers are willing to risk accepting these complicated cases on a contingency-fee basis the only way that exoneree-clients can likely pay their lawyers without outside help.
Litigation finance an important tool for increasing access to justice in tort cases could help close this access to justice gap for exonerees. In a practice called client-directed financing, litigation funders have provided a relative handful of exonerees with cash advances, often leading to greater recoveries in the long run. After considering the benefits and burdens of client-directed financing, we argue that litigation funders ought to consider lawyer-directed financing as well. Through lawyer-directed financing, financiers provide funds directly to private lawyers (instead of to their clients), which mitigates the lawyers\u27 contingency-fee risk and thereby encourages more lawyers to represent exonerees. If more lawyers were to handle more exoneration compensation matters, the secondary benefits could be significant: securing more money for more exonerees, enhancing public safety, developing a more experienced bar, and increasing the likelihood that some police and prosecutors will alter their behavior towards future suspects and defendants.
For lawyer-directed financing to emerge, many states would have to make two changes to their laws: First, state supreme courts would need to interpret their attorney-client privilege laws to allow for necessary information to be shared with the financier without constituting waiver. Second, laws prohibiting champerty and sharing fees with nonlawyers would need to be removed. Even with those changes, we believe that ethics rules should properly constrain the financier\u27s ability to control the legal matter and that the risks presented by outside financing are outweighed by the gains in access to justice for the many exonerees who don\u27t presently have lawyers. For these reasons, we believe the expansion of litigation finance for exonerees merits serious consideration
