Notre Dame Law Review

Articles from Vol. 94, No. 4, April

Compelled Commercial Speech and the First Amendment
INTRODUCTION: COMPELLED EXPRESSION AS A VIOLATION OF THE FIRST AMENDMENT For the most part, the First Amendment is viewed as a means of restricting government's authority to suppress expression. Both speakers and listeners are assumed to benefit from...
Costs and Challenges of the Hostile Audience
In my own newly famous city of Charlottesville, Virginia, (1) as well as in Berkeley, (2) Boston, (3) Gainesville, (4) Middlebury, (5) and an increasing number of other locations, (6) individuals and groups engaging in constitutionally protected acts...
Financial Assurance for Hardrock Mining: EPA and Cercla
INTRODUCTION Precious metals mining, as well as the broader industry of hardrock mining, has changed greatly since Adam Smith posited: Of all those expensive and uncertain projects, however, which bring bankruptcy upon the greater part of the people...
Holmes, Humility, and How Not to Kill Each Other
INTRODUCTION Justice Oliver Wendell Holmes's dissent in Abrams v. United States is one of the intellectual anchors of modern First Amendment doctrine. (1) In that opinion, Holmes sets out two core aspects of his free speech jurisprudence: his pragmatic...
Marketplace of Ideas, Privacy, and the Digital Audience
The availability of almost limitless sets of digital information has opened a vast marketplace of ideas. Information service providers like Facebook and Twitter provide users with an array of personal information about products, friends, acquaintances,...
NO INTERNET DOES NOT MEAN NO PROTECTION UNDER THE CFAA: WHY VOTING MACHINES SHOULD BE COVERED UNDER 18 U.S.C. S. 1030
[T]hese [cyberattacks] are persistent, they are pervasive, and they are meant to undermine America's democracy on a daily basis, regardless of whether it is election time or not. Russian actors and others are exploring vulnerabilities in our critical...
On "Clear and Present Danger"
INTRODUCTION Justice Oliver Wendell Holmes's dissent in United States v. Abrams gave us the "marketplace of ideas" metaphor and the "clear and present danger" test. (1) Too often unremarked is the contradiction between the two. At the same time that...
On Public Employees and Judicial Buck-Passing: The Respective Roles of Statutory and Constitutional Protections for Government Whistleblowers
INTRODUCTION In Garcetti v. Ceballos, the Supreme Court held that public employees have no First Amendment protections for speech made "pursuant to their official duties." (1) Writing for the majority, Justice Kennedy assured readers that the holding...
Shells of the Stores They Once Were: Returning Vacant Retail Property to Productive Use in the Midst of the "Retail Apocalypse"
I. INTRODUCTION AND BACKGROUND In the first quarter of 2017, nine major retailers--as many as in all of 2016--declared bankruptcy, sparking widespread concern that America was in the midst of a "retail apocalypse." (1) The United States has been overstored...
Staying Afloat and Engaged in Today's Flooded Marketplace of Speech
Thank you for the kind introduction and invitation to give this address and participate in the Symposium. It is a special privilege for me to come to Notre Dame. I grew up in Indiana, about ninety miles from here in Fort Wayne, have always admired the...
The Marketplace of Ideas Online
INTRODUCTION 1520 I. THE HISTORICAL ORIGINS OF THE MARKETPLACE OF IDEAS 1523 II. THE UNIQUE PROBLEMS OF TODAY'S ONLINE MARKETPLACE OF IDEAS 1527 III. FIXING THE FLAWS IN THE ONLINE...
The Missing Marketplace of Ideas Theory
One hundred years ago, Justice Holmes embraced the marketplace of ideas in his dissenting opinion in Abrams v. United States. (1) The same year as this centennial anniversary, Justice Kennedy, one of the most ardent adherents to this theory, retired...
The Ncaa's Transfer Conundrum
INTRODUCTION In September 2018, Kelly Bryant was demoted from the position of starting quarterback for the Clemson University football team. (1) While it is not uncommon for players to be benched in college athletics, whether it is a result of performance,...
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