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Articles
Blushing Our Way Past Historical Fact and Fiction: A Response to Professor Geoffrey R. Stone’s Melville B. Nimmer Memorial Lecture and Essay
By Seth Barrett Tillman. 114 Penn St. L. Rev. 391.
Legal academics and the public are fascinated by both constitutional text and the processes by which it is interpreted. The precise role for legal academics in the interpretation of such charters is controverted. Doctrine and case law as established by the courts remain the core of academic legal discourse. Case law is, after all, the object about which doctrine is based, built, and extended. But the interpretation of constitutional text through case law comes with costs—it seems to lack democratic legitimacy, and where unconnected to text and history, it has a tendency to fence out (even the well-educated) public. On the other hand, when legal academics shift to text and history, their work gains populist credentials, but, at that point, the legal academic risks his privileged position. For the legal academic has no monopoly, or even highly developed expertise, with regard to textual exegesis or the best use of historical materials . . . [keep reading]
Black Like Me: The Free Speech Jurisprudence of Clarence Thomas
By Steven B. Lichtman. 114 Penn St. L. Rev. 415.
As arguably the most ferocious conservative on the Supreme Court, Clarence Thomas is not usually associated with civil liberties causes, except insofar as popular myth portrays him as hostile to those causes. Contrary to this mythology, however, Thomas has carved out a definitively speech-protective path in his First Amendment opinions. While there have been some notable exceptions, it can be argued that Clarence Thomas is the most pronounced free speech absolutist on the Supreme Court since Hugo Black, who famously (if somewhat apocryphally) believed that “no law means no law” when it comes to the First Amendment . . . [keep reading]
Imagining Judges that Apply Law: How They Might Do It
By James R. Maxeiner. 114 Penn St. L. Rev. 469.
______“Judges should apply the law, not make it.” That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naïve to expect judges to apply rather than to make law.
______American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts is a necessary feature of civil procedure at all.
______German civil justice does have a method for routinely applying law to facts. It is called, in German, the “Relationstechnik,” that is, in English, literally “relationship technique.” This article introduces it to American lawyers and judges and shows how it helps make German civil justice effective . . . [keep reading]
Justifying Religious Freedom: The Western Tradition
By E. Gregory Wallace. 114 Penn St. L. Rev. 485.
Religious freedom is a fundamental value in American constitutional law. Thomas Jefferson called it “the most inalienable and sacred of all human rights.” James Madison urged that religion “must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.” The First Amendment contains a separate clause addressing the free exercise and nonestablishment of religion, thus distinguishing religious freedom from freedoms of speech, press, assembly, and petition. The question is, why? Why does the First Amendment single out religion for special protection in our constitutional system? Why is religion treated differently than other beliefs and activities? What, if anything, about religion merits unique constitutional rules? [keep reading]
Comments
Is Hate Speech Becoming the New Blasphemy? Lessons from an American Constitutional Dialectic
By Justin Kirk Houser. 114 Penn St. L. Rev. 571.
On May 10, 1836, as they were going about their daily business in New Castle County, Delaware, numerous citizens were shocked and alarmed to hear Thomas Jefferson Chandler exclaim in a loud voice, “The Virgin Mary was a whore, and Jesus Christ was a bastard!” The moral outrage of the community was directed at Chandler, and he was arrested. Following conviction in county court, he appealed his case to the Delaware Court of General Sessions. The court affirmed Chandler’s conviction, and upheld the constitutionality of the crime of blasphemy. The court found that one who attacked the doctrines of Christianity “struck at the foundation of . . . civil society,” because “the religion of the people of Delaware is christian.” The court opined that the people had a right to enjoy their chosen religion “without interruption or disturbance,” for which “they may claim the protection of law guarantied [sic] to them by the constitution itself.” [keep reading]
Mr. Pink Never Leaves a Tip: How Current Tip Credit and Tip Pool Guidelines Leave Employees at the Mercy of Employers
By Neil Patrick McConnell. 114 Penn St. L. Rev. 621.
At every restaurant there is the familiar sound of after-meal chatter, everyone at the table giving their closing thoughts as to what the cooks did correctly or the criticisms from the dining companion who has watched too many episodes of Bravo’s “Top Chef.” The bill arrives, and then glances are made to see if the waiter is within earshot. The critical question is spoken: “How much should we tip?” [keep reading]
Puppy Lemon Laws: Think Twice before Buying that Doggy in the Window
By Stephanie K. Savino. 114 Penn St. L. Rev. 643.
Consider the following hypothetical: a couple’s children beg their parents to “just take a look” at the puppies in the local pet store. After the couple gives in and enters the store, the entire family instantly falls in love with the soulful-eyed puppy behind the window. The salesclerk at the pet store offers a reasonable price to the couple. In addition, the salesclerk claims that the puppy was purely bred and that the puppy has a clean bill of health. Soon after, the family leaves the pet store, eager to bond with its new addition . . . [keep reading]
Balancing Police Action Against an Underdeveloped Fundamental Right: Is There a Right to Travel Freely on Public Fora?
By Andrew M. Schnitzel. 114 Penn St. L. Rev. 667.
Violent crime fueled by drug profits is not a new problem for our nation’s inner cities. Police struggle to adapt their tactics to changing street conditions while still safeguarding the constitutional rights of citizens they have sworn to protect. The summer of 2008 marked a tipping point for the Metropolitan Police Department (“MPD”) of Washington, D.C. Drive-by shootings ravaged the neighborhood of Trinidad, and the MPD responded with an innovative program designed to curb the violence. The following hypothetical illustrates the basic facts of the program along with a collateral restriction of civil liberties that generated intense controversy . . . [keep reading]
Special Dedication
Remarks Given on October 24, 2009, at the Scholarship Luncheon and Awards Ceremony on the Dedication of a Portrait in Honor of Professor Christine H. Kellett and in Celebration of the 175th Anniversary of the Dickinson School of Law October 24, 2009 [read the remarks].