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Louisiana Law Review Volume 12 | Number 1 November 1951 Table of Contents: Title Index to Articles Repository Citation Table of Contents: Title Index to Articles, 12 La. L. Rev. (1951) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol12/iss1/5 This Front Matter is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. TITLE INDEX TO ARTICLES PAGE AMENDING THE CONSTITUTION TO CRIPPLE TREATIES Zechariah Chafee, Jr. 345 THE CHOICE OF LAW, STATE OR FEDERAL, IN CASES INVOLVING Gov- ERNMENT CONTRACTS ................... Munroe F. Pofcher 37 DAMAGE SUITS AND THE CONTAGIOUS PRINCIPLE OF WORKMEN'S COMPENSATION ............................ Wex S. Malone 231 DIRECT EXAMINATION OF MEDICAL EXPERTS IN ACTIONS FOR DEATH AND BODILY INJURIES ................ Charles T. McCormick 264 FEDERAL INCOME TAX DEDUCTIONS FOR CITY OFFICIALS Charles S. Rhyne and Brice W. Rhyne 276 LOUISIANA CIVIL LAW AS APPLIED TO LIFE INSURANCE Leon S. Cahn 56 NON-COMiVMUNIST AFFIDAVITS: TAFT-HARTLEY SOUND AND FURY Gerald B. Greenwald 407 A REFRESHER COURSE IN CAUSE ................ J. Denson Smith 2 THE RIGHT OF RECOVERY FOR PRENATAL INJURIES ..... A. A. White 383 THE WORK OF THE LOUISIANA SUPREMVIE COURT FOR THE 1950-1951 TERMI ................................ Faculty Symposium 121 Civil Procedure .................. Henry G. McMahon 184 Constitutional Law ............... Charles A. Reynard 157 Conventional Obligations ............ J. Denson Smith 121 Criminal Law ........................ Dale E. Bennett 125 Criminal Procedure .................. Dale E. Bennett 175 Labor Law ....................... Charles A. Reynard 163 Local Government .................. Jerome Shestack 164 Persons ............................. Robert A. Pascal 134 Prescription .......................... Joseph Dainow 135 Property ............................. Joseph Dainow 136 Sales ................................ J. Denson Smith 139 Successions, Donations and Community Property Harriet S. Daggett 141 Taxation ......................... Charles A. Reynard 172 Torts ................................ Dale E. Bennett 147 Workmen's Compensation ............. Wex S. Malone 150 REVIEWS DAWSON: Unjust Enrichment: A Comparative Study Rend David 109 GAVIT: Introduction to the Study of Law SHARTEL: Our Legal System and How It Operates Joseph Dainow 111 HYDE: Cases That Changed the Law ......... Jerome Shestack 114 MALONE: Louisiana Workmen's Compensation Law and Practice Warren A. Seavey 535 PASCHAL: Mr. Justice Sutherland: A Man Against the State FrancisA. Allen 337 POUND: Justice According to Law .............. E. M. Morgan 329 REUSCHLEIN: Jurisprudence-Its American Prophets Lon L. Fuller 531 REUTTER: The School Administrator and Subversive Activities Ralph S. Brown, Jr. 538 ROBERTS: The Court and the Constitution .... Charles Fairman335 SHUGEEMAN: Accounting for Lawyers SHANNON: Legal Accounting Melvin G. Dakin 523 STEIN: Public Administration and Policy Developments: A Case Book .......................... Charles S. Hyneman 541.

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Smith 1051.Pdf
ISSN 1936-5349 (print) ISSN 1936-5357 (online) HARVARD JOHN M. OLIN CENTER FOR LAW, ECONOMICS, AND BUSINESS EQUITY AS META-LAW Henry E. Smith Forthcoming in Yale Law Journal Discussion Paper No. 1051 12/2020 Harvard Law School Cambridge, MA 02138 This paper can be downloaded without charge from: The Harvard John M. Olin Discussion Paper Series: http://www.law.harvard.edu/programs/olin_center The Social Science Research Network Electronic Paper Collection: https://ssrn.com/abstract=3734662 EQUITY AS META-LAW Henry E. Smith* October 15, 2020 (forthcoming, Yale Law Journal) * Fessenden Professor of Law, HArvArd Law School. EmAil: [email protected]. I would Also like to thAnk Leigh Anenson, Benito ArruñAdA, Lisa Austin, ShyAm BAlgAnesh, Sam Bray, Yun-chien Chang, Eric Claeys, Bob Ellickson, Yuval Feldman, Andrew Gold, John Goldberg, John Golden, Erik Hovenkamp, Bruce Johnsen, Louis Kaplow, Andrew Kull, MichAel Kenneally, Dan KlermAn, Dennis Klimchuk, Andrew Kull, Bentley MAcLeod, Paul Miller, SusAn Morse, EduArdo PeñAlver, Mark RAmseyer, Emily Sherwin, Ted Sichelman, Steve Spitz, JAmes Stern, Alex Stremitzer, And Audiences At the ItAliAn Society of LAw And Economics, University of BolzAno, ItAly; the Workshop on Entrepreneurship And the LAw, BrighAm Young University LAw School; the AmericAn LAw And Economics Annual Meeting, Columbia Law School; the Fourth AnnuAl TriAngle Law And Economics Conference, Duke LAw School; the Robert A. Levy Fellows Workshop in LAw & Liberty, George MAson University School of LAw; the University of GeorgiA
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The First Amendment in Its Forgotten Years
The First Amendment in Its Forgotten Years David M. Rabbant TABLE OF CONTENTS I. Free Speech Before the Courts 522 A. Supreme Court Cases 524 I. Avoiding First Amendment Issues 525 Resisting Incorporation into the Fourteenth Amendment 525 Excluding Publications from the Mails 526 Neglecting First Amendment Issues 529 Limiting the Meaning of Speech 531 2. Addressing First Amendment Issues 533 Justice Holmes and the Bad Tendency of Speech 533 Review of Statutes Penalizing Speech 536 The First Amendment as the Embodiment of English Common Law 539 3. Hints of Protection 540 4. Summary 542 B. Decisions Based on State Law 543 1. The Bad Tendency Doctrine 543 Speech by Radicals 543 Obscenity and Public Morals 548 2. Libel 550 3. Political Speech 551 4. Labor Injunctions 553 5. Speech in Public Places 555 C. The Judicial Tradition 557 t Counsel, American Association of University Professors. 514 Prewar Free Speech II. Legal Scholarship 559 A. The Social Interest in Free Speech 563 B. The Distinction Between Public and Private Speech 564 1. Schofield's Formulation of the Distinction 564 2. Other Scholarly Support for the Distinction 566 C. The Expanding Conception of Free Speech 568 D. The Rejection of Blackstone 570 E. The Limits of Protected Speech 572 1. The Direct Incitement Test 572 2. Pound's Balancing Test 575 3. Schroeder's Test of Actual Injury 576 4. The Benefits of LibertarianStandards 578 F. The Heritage of Prewar Scholarship 579 III. The Role of the Prewar Tradition in the Early Develop- ment of Modern First Amendment Doctrine 579 A.
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“Clean Hands” Doctrine
Announcing the “Clean Hands” Doctrine T. Leigh Anenson, J.D., LL.M, Ph.D.* This Article offers an analysis of the “clean hands” doctrine (unclean hands), a defense that traditionally bars the equitable relief otherwise available in litigation. The doctrine spans every conceivable controversy and effectively eliminates rights. A number of state and federal courts no longer restrict unclean hands to equitable remedies or preserve the substantive version of the defense. It has also been assimilated into statutory law. The defense is additionally reproducing and multiplying into more distinctive doctrines, thus magnifying its impact. Despite its approval in the courts, the equitable defense of unclean hands has been largely disregarded or simply disparaged since the last century. Prior research on unclean hands divided the defense into topical areas of the law. Consistent with this approach, the conclusion reached was that it lacked cohesion and shared properties. This study sees things differently. It offers a common language to help avoid compartmentalization along with a unified framework to provide a more precise way of understanding the defense. Advancing an overarching theory and structure of the defense should better clarify not only when the doctrine should be allowed, but also why it may be applied differently in different circumstances. TABLE OF CONTENTS INTRODUCTION ................................................................................. 1829 I. PHILOSOPHY OF EQUITY AND UNCLEAN HANDS ...................... 1837 * Copyright © 2018 T. Leigh Anenson. Professor of Business Law, University of Maryland; Associate Director, Center for the Study of Business Ethics, Regulation, and Crime; Of Counsel, Reminger Co., L.P.A; [email protected]. Thanks to the participants in the Discussion Group on the Law of Equity at the 2017 Southeastern Association of Law Schools Annual Conference, the 2017 International Academy of Legal Studies in Business Annual Conference, and the 2018 Pacific Southwest Academy of Legal Studies in Business Annual Conference.
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"1929 Congressional Record-Senate
"1929 CONGRESSIONAL RECORD-SENATE ~115_ to their constitnenf8 every two years and renew their commis- or such part thereof as may be necessary," so ·as to make the sions in order that that body may keep i.li close touch with the resolution read : people. Whereas it is charged that the lobbyists, located in and around We have before us now in the pending bill a provision to Washington, filch from the American public more money under a false enlarge this power in the hands of the President, having already claim that they can influence legislation than the legislative branch of conferred it upon him seven years ago. I opposed it· then ; I this Government costs the taxpayer ; and. oppose it now. But, Mr. President, I am willing that the Whereas the lobbyists seek by all means to capitalize for themselves Tariff Commission shall report to the President and then that every interest and every sentiment of the American public which can be the President shall communicate to Congress by message regard made to yield an unclean dollar for their greedy pockets: Now, there ing such report if at the same time the Tariff Commission shall fore, be it be required to report to us. In that event we would be sure Resolved, That the Committee on the Judiciary of the United States to get all the information either as to tarlfi increases or tariff Senate, or a subcommittee thereof to be appointed by the chairman of decreases. It might happen, if the Tariff Commission were the committee, is empowered and instructed to inquire into the activities required to report only to the President and he could use his of these lobbying associations and lobbyists.
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Learned Hand's Seven Other Ideas
LEARNED HAND’S SEVEN OTHER IDEAS ABOUT THE FREEDOM OF SPEECH Vincent Blasi* I say “other” because, regarding the freedom of speech, Learned Hand has suffered the not uncommon fate of having his best ideas either drowned out or credited exclusively to others due to the excessive attention that has been bestowed on one of his lesser ideas. Sitting as a district judge in the case of Masses Publishing Co. v. Patten,1 Hand wrote the earliest judicial opinion about the freedom of speech that has attained canonical status. He ruled that under the recently passed Espionage Act of 1917,2 writings critical of government cannot be grounds for imposing criminal punishment or the denial of mailing privileges unless the authors tell their readers it is in their interest or is their duty to violate the law.3 Hostile criticism very likely to cause harm or intended to do so is not punishable under that statute, he concluded, if it stops short of direct advocacy of law violation.4 He derived this standard in the guise of statutory interpretation but very little in the text of the law or its history of passage suggested his reading. Rather, to support his preferred test Hand drew upon what he took to be the basic presuppositions of democratic governance, assumed to underlie the enactment of the statute. In subsequent private correspondence, he repeatedly invoked his test as not only implicit in the Espionage Act but also the best interpretation of the First Amendment.5 Hand’s focus on the exact meaning conveyed by the speaker’s words rather than their likely or intended effect represents a different approach from that of his peers, most notably his friend and hero Justice Oliver Wendell Holmes, Jr., whose clear-and-present-danger test, introduced two years later, turns on predicted consequences and speaker intentions.6 It has become a * Vincent Blasi is Corliss Lamont Professor of Civil Liberties, Columbia Law School.
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The Brandeis Gambit: the Making of America's "First Freedom," 1909-1931
William & Mary Law Review Volume 40 (1998-1999) Issue 2 Article 7 February 1999 The Brandeis Gambit: The Making of America's "First Freedom," 1909-1931 Bradley C. Bobertz Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Bradley C. Bobertz, The Brandeis Gambit: The Making of America's "First Freedom," 1909-1931, 40 Wm. & Mary L. Rev. 557 (1999), https://scholarship.law.wm.edu/wmlr/vol40/iss2/7 Copyright c 1999 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr THE BRANDEIS GAMBIT: THE MAKING OF AMERICA'S "FIRST FREEDOM," 1909-1931 BRADLEY C. BOBERTZ* TABLE OF CONTENTS INTRODUCTION .................................. 557 I. FREE SPEECH AND SOCIAL CONFLICT: 1909-1917 ..... 566 II. WAR AND PROPAGANDA ......................... 576 III. JUSTICE HOLMES, NINETEEN NINETEEN ............ 587 IV. THE MAKING OF AMERICA'S "FIRST FREEDOM. ....... 607 A. Free Speech as Safety Valve ................ 609 B. Bolshevism, Fascism, and the Crisis of American Democracy ...................... 614 C. Reining in the Margins .................... 618 D. Free Speech and Propagandain the "Marketplace of Ideas"..................... 628 V. THE BRANDEIS GAMBIT ........................ 631 EPILOGUE: SAN DIEGO FREE SPEECH FIGHT REVISITED .... 649 INTRODUCTION A little after two o'clock on the sixth afternoon of 1941, Frank- lin Roosevelt stood at the clerk's desk of the U.S. House of Rep- resentatives waiting for the applause to end before delivering one of the most difficult State of the Union Addresses of his * Assistant Professor of Law, University of Nebraska College of Law.
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Viewpoint Discrimination Marjorie Heins
Hastings Constitutional Law Quarterly Volume 24 Article 3 Number 1 Fall 1996 1-1-1996 Viewpoint Discrimination Marjorie Heins Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Marjorie Heins, Viewpoint Discrimination, 24 Hastings Const. L.Q. 99 (1996). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol24/iss1/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Viewpoint Discrimination By MARJORIE HEINS* Table of Contents I. The Semantics of Suppression .......................... 105 A. Viewpoint Neutrality ................................ 105 B. Rules About Content ............................... 110 C. Political, Controversial, and Religious Speech ...... 115 II. Sex, Vulgarity, and Offensiveness ....................... 122 m. Government Benefits and Property ..................... 136 IV. Government Speech .................................... 150 V. Public Education: The Pico Paradox .................... 159 Conclusion ..................................................... 168 Introduction "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in poli- tics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."1 With these words, Jus- * Director, American Civil Liberties Union Arts Censorship Project; Senior Staff Counsel, ACLU Legal Department; J.D., Harvard University, 1978; author, SEx, SIN, AND BLASPHEMY: A GuIDE TO AMERICA'S CENSORSHIP WARS (1993). The author participated in several of the cases or controversies mentioned in this Article.
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The Pure-Hearted Abrams Case
William & Mary Bill of Rights Journal Volume 29 (2020-2021) Issue 2 Article 6 December 2020 The Pure-Hearted Abrams Case Andres Yoder Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, First Amendment Commons, Judges Commons, and the Legal History Commons Repository Citation Andres Yoder, The Pure-Hearted Abrams Case, 29 Wm. & Mary Bill Rts. J. 455 (2020), https://scholarship.law.wm.edu/wmborj/vol29/iss2/6 Copyright c 2021 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj THE PURE-HEARTED ABRAMS CASE Andres Yoder* One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional impor- tance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By drawing on heretofore overlooked material, and by investigating the evolution of Holmes’s political thought, this Article identifies a specific reason for Holmes’s reversal that is both compelling and new. Along the way, this Article makes the surprising revelation that Holmes never believed his influential marketplace-of-ideas concept—that is, his argument in Abrams that “the best test of truth is the power of the thought to get itself accepted in the com- petition of the market.” Instead, he only cared about what the intellectual elite thought.
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Amicus Briefs with Which the Court Has Been Showered
NO. 19-7 In The Supreme Court of the United States _________ SEILA LAW LLC, Petitioner, v. CONSUMER FINANCIAL PROTECTION BUREAU, Respondent. ________________________ On Writ of Certiorari To the United States Court of Appeals For the Ninth Circuit _________________________ BRIEF OF AMICI CURIAE U.S. SENATORS SHELDON WHITEHOUSE, RICHARD BLUMENTHAL, AND MAZIE HIRONO IN SUPPORT OF COURT-APPOINTED AMICUS CURIAE STEPHEN D. SUSMAN Counsel of Record AMANDA BONN RAKIM H.D. BROOKS SUSMAN GODFREY L.L.P. 1301 SIXTH AVENUE, 32ND FLOOR NEW YORK, NY 10019-6023 [email protected] [email protected] Counsel for Amici Curiae JANUARY 22, 2020 i TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................... ii INTEREST OF AMICI CURIAE ................................ 1 SUMMARY OF ARGUMENT .................................... 1 ARGUMENT ............................................................... 2 I. Congress Sought To Immunize The CFPB From The Very Influences That Now Seek To Undermine Nearly A Century Of Administrative Law. ..................... 2 II. This Challenge Is The Product Of A Long-Term Effort By Regulated Industries To Hobble Independent Agencies. ......................................................... 12 CONCLUSION .......................................................... 23 APPENDIX A ............................................................ 1a ii TABLE OF AUTHORITIES Page(s) Cases Bowsher v. Synar 478 U.S. 714 (1986) ............................................. 14 Citizens United v. Fed. Election Comm’n,
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Fifth Amendment: Fox Hunters, Old Women, Hermits, and the Burger Court David M
Notre Dame Law Review Volume 54 | Issue 1 Article 2 10-1-1978 Fifth Amendment: Fox Hunters, Old Women, Hermits, and the Burger Court David M. O'Brien Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation David M. O'Brien, Fifth Amendment: Fox Hunters, Old Women, Hermits, and the Burger Court, 54 Notre Dame L. Rev. 26 (1978). Available at: http://scholarship.law.nd.edu/ndlr/vol54/iss1/2 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. The Fifth Amendment: Fox Hunters, Old Women, Hermits, and the Burger Court* David M. O'Brien** There is no witness so dreadful, no accuser so terrible as the con- science that dwells in the heart of every man. Polybius, History, Book 18, Section 43 I. Introduction Debate over the symbolic and practical value of the fifth amendment' waxes and wanes with constitutional interpretation. The present controversy was fostered by dire predictions that the "Burger Court"2 would forge a "constitu- tional counter-revolution" 3 in the area of criminal procedure and, in particular, fifth amendment litigation. Indeed, by contrast to the Warren Court's liberal construction, ' 4 the Burger Court demonstrates a proclivity for strict construction of the amendment and a redefinition of the value of the privilege against self- incrimination.' Heretofore, the Burger Court's reconsideration of the principles * This article was written under a grant by the National Endowment for the Humanities.
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Legal Professional Privilege
Legal Professional Privilege: The influence of Jeremy Bentham and John Henry Wigmore on the judicial pronouncement of Lord Taylor of Gosforth in R v Derby Magistrates’ Court; ex parte B. Olivia Grosser-Ljubanovic Thesis submitted for the degree of Doctor of Philosophy Adelaide Law School The University of Adelaide April 2018 Contents CONTENTS Contents ............................................................................................................. iii Abstract ............................................................................................................. vii Declaration ......................................................................................................... ix Acknowledgements ............................................................................................ xi List of Publications........................................................................................... xiii Chapter I: Introduction ........................................................................................ 1 I Significance and Limits of this Study ............................................................... 4 II Methodology .................................................................................................. 6 III Structure ................................................................................................... 7 Chapter II: Derby: The Ultimate Arbiter of Legal Professional Privilege ........... 11 I Introduction ..................................................................................................
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The Free Speech Metamorphosis of Mr. Justice Holmes
Hofstra Law Review Volume 11 | Issue 1 Article 3 1982 The rF ee Speech Metamorphosis of Mr. Justice Holmes David S. Bogen Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Bogen, David S. (1982) "The rF ee Speech Metamorphosis of Mr. Justice Holmes," Hofstra Law Review: Vol. 11: Iss. 1, Article 3. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol11/iss1/3 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Bogen: The Free Speech Metamorphosis of Mr. Justice Holmes THE FREE SPEECH METAMORPHOSIS OF MR. JUSTICE HOLMES David S. Bogen* I. INTRODUCTION The trouble with all explanations of historic causes is the ab- sence of quantification: you never can say how much of the given cause was necessary to provide how much effect, or how much of the cause there was. I regard this as the source of the most subtle fallacies. But such exercitations always are amusing and tickling if 1 new. In the spring of 1919, Justice Oliver Wendell Holmes, Jr., writ- ing for a unanimous United States Supreme Court, upheld the con- victions of Charles Schenck and Elizabeth Baer under the Espionage Act of 1917 for their role in distributing antidraft circulars to draft- ees.2 Holmes found that the circulars posed a clear and present dan- ger to the recruiting service in World War I.3 The following week, Holmes again spoke for a unanimous Court in affirming the Espio- nage Act convictions of Jacob Frohwerk4 and Eugene V.
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