The First Amendment unambiguously proclaims that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” The First Amendment’s Speech Clause primarily bears the deliberative weight of protecting and maintaining the discursive space of America’s self-governing democracy. It has done so by indiscriminately protecting a broad array of [...]
Risk, which is by definition only the possibility of harm, is speculative and amorphous. To transform risk into something more concrete and measurable, courts reviewing risk determinations by agencies or individuals in certain contexts will insist that the parties quantify this risk. However, the quantification of risk does not fulfill its promise; beneath the veneer of objectivity and certainty [...]
People who sign petitions must accept disclosure of their political views. This conclusion rests on the seemingly uncontroversial (if circular) premise that petition signing is a public activity. Courts have thus far shown little sympathy for individuals who take a public stand on an issue by signing a petition and then assert privacy claims after the fact. Democracy, after [...]
When case law is unclear or conflicting, its presentation in a Restatement becomes increasingly delicate. Should the draft restatement strictly present the established doctrine, or should it take a stand in describing ways the law can be revised? In the face of such tension, the ALI has made its decision of what to restate in part on what direction it determines the law will likely take in the future.
The newly propagated Restatement (Third) of Property: Servitudes presents a ready example of the degree to which a restatement can move into novel territory in the face of tangled doctrine. Academic scholars are running out of insults with which to describe traditional servitudes law, and the ALI has responded with a product containing several bold suggestions for change. This particular Restatement therefore presents a unique backdrop—it is a plainly normative source that fails to function as a strict “restatement” of the law in many circumstances, but it covers a body of doctrine for which reform has been widely recognized as desirable. What result? This Comment will explore to what extent, if any, a restatement’s reception in courts involves the distinction between restating what the law is and restating what the law should be, using the Restatement (Third) of Property: Servitudes as a lens.
The First Amendment of the United States Constitution sets about protecting the freedom of speech in a remarkably straightforward manner. It commands that “Congress shall make no law . . . abridging the freedom of speech,” without exceptions or qualifying modifiers. It is now widely accepted, however, “that not all expression or communication is included within ‘the freedom of speech.’” While some exceptions to this rule are uncontroversial, the treatment of several other exceptions as either unprotected, or of limited protection, is much less clear.
This Comment attempts to test the Supreme Court’s assertion that corporations should be treated the same as individual speakers—at least as far as First Amendment protections of political speech are concerned—by exploring the possibility of essentially doing the reverse: applying a categorical exception to First Amendment protection typically reserved for corporations, in the form of commercial speech, to individual speakers engaging in self-promotional speech. In other words, if corporate political speech is given the same treatment as individual political speech, should the self-promotional speech of individuals be, just as corporate promotional speech is, subject to classification as commercial speech?