This article proposes a new test for determining what is a true threat - speech not protected by the First Amendment. Despite the importance of the true threats exception to the First Amendment, this is an underexplored area of constitutional law. Even though the Supreme Court has made clear that true threats are punishable, it has not clearly defined what speech constitutes a true threat. To make this determination circuit courts have adopted inconsistent and inadequate tests including a reasonable listener test. The Supreme Court has never granted certiorari to resolve the issue. The law surrounding threats has gained recent attention in two cases involving alleged threats conveyed over the internet: the Nuremberg Files case and the Jake Baker case. A Ninth Circuit decision (currently being considered for en banc review) recently reversed the district court decision in the Nuremberg Files case and its analysis highlights the circuit court confusion on what constitutes a true threat. This article discusses the failings of the current circuit tests, as well as the inadequacy of the alternatives suggested by scholars. This article proposes a new test which adds both an intent prong and an actor prong to the generally accepted reasonable listener test. An extensive test suite of cases demonstrates the efficacy of the proposed test. This article resolves the current confusion and presents a true threats test which provides greater protection for speakers while preserving the rights of potential victims.
{"title":"Freedom of Speech and True Threats","authors":"J. Rothman","doi":"10.2139/SSRN.268314","DOIUrl":"https://doi.org/10.2139/SSRN.268314","url":null,"abstract":"This article proposes a new test for determining what is a true threat - speech not protected by the First Amendment. Despite the importance of the true threats exception to the First Amendment, this is an underexplored area of constitutional law. Even though the Supreme Court has made clear that true threats are punishable, it has not clearly defined what speech constitutes a true threat. To make this determination circuit courts have adopted inconsistent and inadequate tests including a reasonable listener test. The Supreme Court has never granted certiorari to resolve the issue. The law surrounding threats has gained recent attention in two cases involving alleged threats conveyed over the internet: the Nuremberg Files case and the Jake Baker case. A Ninth Circuit decision (currently being considered for en banc review) recently reversed the district court decision in the Nuremberg Files case and its analysis highlights the circuit court confusion on what constitutes a true threat. This article discusses the failings of the current circuit tests, as well as the inadequacy of the alternatives suggested by scholars. This article proposes a new test which adds both an intent prong and an actor prong to the generally accepted reasonable listener test. An extensive test suite of cases demonstrates the efficacy of the proposed test. This article resolves the current confusion and presents a true threats test which provides greater protection for speakers while preserving the rights of potential victims.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2001-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.268314","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68254538","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Fourteenth Amendment unenumerated rights jurisprudence: an essay in response to Stenberg v. Carhart.","authors":"D M Smolin","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25955115","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The genome and the law: should increased genetic knowledge change the law?","authors":"E D Elliott","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22392032","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Sherman Act forbids contracts that restrain interstate commerce, and proof of significant market power is usually necessary to establish the existence of such a restraint. Recently, however, some have argued that courts should employ the Sherman Act to regulate opportunistic behavior by franchisors that do not possess the sort of market power ordinarily necessary to establish antitrust liability. Inspired by the Supreme Court's decision in Eastman Kodak v. Image Technical Services, these advocates find "market power" in the presence of relationship-specific investments and would impose antitrust liability on franchisors that abuse such power to the detriment of their franchisees. Informational asymmetries and bargaining costs, it is said, prevent franchisees from protecting themselves in the bargaining process from unduly onerous contractual terms. This essay argues that reliance upon the Sherman Act to combat franchisor opportunism would constitute an unjustified expansion of federal regulatory authority and upset the traditional division of labor between states and the national government. To be sure, scholars have provided a plausible story of opportunism in the franchising context, where bargaining and information costs can be significant. Still, these advocates have not explained why federal regulation of such behavior is warranted. As Professor Coase has recognized, bargaining and information costs do not exist in a vacuum, but are instead a function of the institutional framework, a framework constructed by background rules of (state) contract law that lower the costs of entering and maintaining relational contracts. Any argument for federal intervention to combat opportunism, then, must explain why the background rules of contract law are not adequate to minimize information and bargaining costs and thus deter opportunistic behavior. More precisely, those who advocate Sherman Act regulation of franchiser opportunism must demonstrate that competition between the states to produce the institutional framework governing the franchisor-franchisee relationship is characterized by a "race to the bottom" that warrants federal intervention. Preliminary analysis suggests that such a race to the bottom is unlikely. No state can become a "haven" for opportunistic franchisors without the cooperation of other states, who must enforce the franchisor's choice of law clauses. Moreover, states that adopt institutional frameworks that raise the cost of transacting and thus facilitate franchisor opportunism will raise the costs of intrastate transactions and make their own citizens vulnerable to opportunism. Federalizing this body of law, then, would unnecessarily deprive businesses and consumers of the benefits of interjurisdictional competition.
{"title":"Regulation of Franchisor Opportunism and Production of the Institutional Framework: Federal Monopoly or Competition Between the States?","authors":"Alan J. Meese","doi":"10.2139/SSRN.186049","DOIUrl":"https://doi.org/10.2139/SSRN.186049","url":null,"abstract":"The Sherman Act forbids contracts that restrain interstate commerce, and proof of significant market power is usually necessary to establish the existence of such a restraint. Recently, however, some have argued that courts should employ the Sherman Act to regulate opportunistic behavior by franchisors that do not possess the sort of market power ordinarily necessary to establish antitrust liability. Inspired by the Supreme Court's decision in Eastman Kodak v. Image Technical Services, these advocates find \"market power\" in the presence of relationship-specific investments and would impose antitrust liability on franchisors that abuse such power to the detriment of their franchisees. Informational asymmetries and bargaining costs, it is said, prevent franchisees from protecting themselves in the bargaining process from unduly onerous contractual terms. This essay argues that reliance upon the Sherman Act to combat franchisor opportunism would constitute an unjustified expansion of federal regulatory authority and upset the traditional division of labor between states and the national government. To be sure, scholars have provided a plausible story of opportunism in the franchising context, where bargaining and information costs can be significant. Still, these advocates have not explained why federal regulation of such behavior is warranted. As Professor Coase has recognized, bargaining and information costs do not exist in a vacuum, but are instead a function of the institutional framework, a framework constructed by background rules of (state) contract law that lower the costs of entering and maintaining relational contracts. Any argument for federal intervention to combat opportunism, then, must explain why the background rules of contract law are not adequate to minimize information and bargaining costs and thus deter opportunistic behavior. More precisely, those who advocate Sherman Act regulation of franchiser opportunism must demonstrate that competition between the states to produce the institutional framework governing the franchisor-franchisee relationship is characterized by a \"race to the bottom\" that warrants federal intervention. Preliminary analysis suggests that such a race to the bottom is unlikely. No state can become a \"haven\" for opportunistic franchisors without the cooperation of other states, who must enforce the franchisor's choice of law clauses. Moreover, states that adopt institutional frameworks that raise the cost of transacting and thus facilitate franchisor opportunism will raise the costs of intrastate transactions and make their own citizens vulnerable to opportunism. Federalizing this body of law, then, would unnecessarily deprive businesses and consumers of the benefits of interjurisdictional competition.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2000-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.186049","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67763471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Death, ethics and the state.","authors":"B C Kalt","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22130169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The right to assisted suicide and euthanasia.","authors":"N M Gorsuch","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22193633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"\"Typhoid Mary\" meets the ADA: a case study of the \"direct threat\" standard under the Americans with Disabilities Act.","authors":"J A Van Detta","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25598011","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Formalism is the jurisprudence of rules.1 Functionalism is the jurisprudence of balancing tests.2 If forced to choose between formalism and functionalism, I would probably corne down on the side of formalism. I would not do so, however, because there is some meta-rule that prescribes formalism. Rather, it would be because formalism, on balance, has better consequences than functionalism-in other words, because there are good functionalist reasons to be a formalist.3 Where I part company with many constitutional formalists is not so much over the desirability of rules as opposed to ad hoc balancing,4 but rather over the generality and the source of the
{"title":"Toward a Principled Interpretation of the Commerce Clause","authors":"T. Merrill","doi":"10.7916/D86H4H17","DOIUrl":"https://doi.org/10.7916/D86H4H17","url":null,"abstract":"Formalism is the jurisprudence of rules.1 Functionalism is the jurisprudence of balancing tests.2 If forced to choose between formalism and functionalism, I would probably corne down on the side of formalism. I would not do so, however, because there is some meta-rule that prescribes formalism. Rather, it would be because formalism, on balance, has better consequences than functionalism-in other words, because there are good functionalist reasons to be a formalist.3 Where I part company with many constitutional formalists is not so much over the desirability of rules as opposed to ad hoc balancing,4 but rather over the generality and the source of the","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71364962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Judicial Review and Federalism","authors":"J. Yoo","doi":"10.2307/j.ctv56fggn.12","DOIUrl":"https://doi.org/10.2307/j.ctv56fggn.12","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68813459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Some legal scholars have argued that public choice theory justifies certain kinds of judicial activism.! Others have said it does not. 2 Given the present state of the debate, it would appear that those finding no necessary support for judicial activism have the stronger argument. I will suggest, however, that if we tweak the analysis a little further, it may turn out that public choice theory provides limited support for judicial activism after all. From an economic perspective-which is to say, the public choice perspective-it may be useful to think of judicial activism as part of a larger market in which a product called "law change" is bought and sold.3 This market has many potential buyers, in the form of the interest groups to which the previous panelists have already referred. Virtually every group has some change in law it would like to see adopted, whether it be producer groups that would like to see new limitations on entry by potential competitors, or environmental groups that would like to see new limitations on the development of natural resources. On the seller side, we can simplifY the analysis by assuming that there are only two firms in the market for law change-the legislature and the courts. We can then reformulate the inquiry as follows: what sorts of factors will determine the demand for
{"title":"Does Public Choice Theory Justify Judicial Activism After All","authors":"T. Merrill","doi":"10.7916/D8Z037S2","DOIUrl":"https://doi.org/10.7916/D8Z037S2","url":null,"abstract":"Some legal scholars have argued that public choice theory justifies certain kinds of judicial activism.! Others have said it does not. 2 Given the present state of the debate, it would appear that those finding no necessary support for judicial activism have the stronger argument. I will suggest, however, that if we tweak the analysis a little further, it may turn out that public choice theory provides limited support for judicial activism after all. From an economic perspective-which is to say, the public choice perspective-it may be useful to think of judicial activism as part of a larger market in which a product called \"law change\" is bought and sold.3 This market has many potential buyers, in the form of the interest groups to which the previous panelists have already referred. Virtually every group has some change in law it would like to see adopted, whether it be producer groups that would like to see new limitations on entry by potential competitors, or environmental groups that would like to see new limitations on the development of natural resources. On the seller side, we can simplifY the analysis by assuming that there are only two firms in the market for law change-the legislature and the courts. We can then reformulate the inquiry as follows: what sorts of factors will determine the demand for","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368437","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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