Online Article Index

The following articles are available here:

  • "The Future of Liberal Legal Scholarship"
    87 Michigan Law Review 189 (1988)

    Earl Warren is dead. And yet liberal legal scholars often act as if the man and his Court preside over the present. This commentary is a reconstructive criticism of legal liberalism, representing an assessment of where liberals currently stand and where they might redirect their scholarly energies.
  • "The First Amendment in Bold Relief: A Reply"
    68 Texas Law Review 1185 (1990)

    Written as an afterword to the Colloquy entitled The First Amendment and the Paratroopers' Paradox, this piece replies to commentaries on "The First Amendment in an Age of Paratroopers" authored by Max Lerner (syndicated columnist), David M. O'Brien (political science professor), Martin H. Redish (law professor), Edward Rubin (law professor), Herbert I. Schiller (professor of communications), and Mark V. Tushnet (law professor).
  • "The First Amendment in an Age of Paratroopers"
    68 Texas Law Review 1087 (1990)

    As the lead piece in a Colloquy entitled The First Amendment and the Paratroopers' Paradox, this article argues that today's free speech theory is largely grounded in 18th Century fears of government's tyrannical censorship. This theory is ill-equipped to deal with a distinct tyranny in 21st Century America, a tyranny playing upon the public's insatiable appetite for amusement. Those who venture to develop free speech principles to suit a new cultural environment are the First Amendment paratroopers of our time, the ones who realize that we cannot retain our old constitutional prerogatives in a transformed world. The Paratroopers' Paradox: To save itself, the traditional First Amendment may destroy itself.
  • "Paratexts"
    44 Stanford Law Review 509 (1992)

    Law is bound by its form. In important ways, law is the product of its methods of creation, transmission, and execution. While commentators typically dwell on the evolution and enforcement of law, little attention is given to the significance of the law's dissemination, the media by which legal messages are communicated. Any profound understanding of our legal culture, however, requires a real appreciation of the role played by its modes of communication -- whether oral, scribal, print, or electronic. Focusing on the increasing prevalence of legal "paratexts" (audio-visual recordings of legal transactions), this article explores their potential force in reshaping legal interpretation, institutions, and theory.
  • "Pissing in the Snow: A Cultural Approach to the First Amendment"
    45 Stanford Law Review 783 (1993)

    A review essay inspired by James B. Twitchell,
    Carnival Culture: The Trashing of Taste in America (New York: Columbia University Press, 1992), this piece introduces a "cultural approach" for First Amendment analysis. Looking at American commercial mass media discourse as it is, rather than as it should be, what would we find? Having made such a discovery, what would our notions of the First Amendment be if they were premised on that experience?

  • "The Psychology of Contemporary First Amendment Scholarship: A Reply"
    71 Texas Law Review 819 (1993)

    Written as an afterword to the Colloquy entitled The First Amendment in a Commercial Culture, this piece replies to commentaries on "Commerce & Communication" authored by Leo Bogart (advertising expert), Sut Jhally (professor of communications), Alex Kozinski (federal appellate judge) & Stuart Banner (attorney), and Rodney Smolla (law professor).
  • "Commerce & Communication"
    71 Texas Law Review 697 (1993)

    As the lead piece in a Colloquy entitled The First Amendment in a Commercial Culture, this article argues that, in our culture of advanced capitalism, public discourse cannot significantly be separated from the influences of commercialism. To understand the First Amendment, we must look beyond cases and commentary to the actual ways in which our culture communicates about and through commodities. We must think less about the marketplace of ideas and more about the marketing of items.
  • "The Pornographic State"
    107 Harvard Law Review 1374 (1994)

    Written as a contribution to the Harvard Symposium on Changing Images of the State, this article explores the realm of Pornotopia, a republic of images, the state that liberal America aspires to be. Imagine a nation in which there is little or no discord about pornography because there is little or no meaningful
    discourse about it. Imagine a nation in which people gladly trade the reality of human beings for images of that reality, a "virtual reality." Imagine a nation in which there is erotic self­expression but little or no communal expression. Imagine a nation in which sexual war and sexual pleasure are synonymous and unending. Imagine, again, a nation in which rubber speaks and people know it. Imagine a nation in which deliberative democracy is a deliberate lie and sexual harm is a necessary lie. Imagine, if you can, the death of discourse. As you will see, you have just imagined the pornographic state.
  • "New 'Truths' and the Old First Amendment"
    64 University of Cincinnati Law Review 1295 (1996)

    Written as an afterword to a Symposium on The Death of Discourse, this piece replies to commentaries on the relationship between "Noble Lies" and the First Amendment authored by Professors Shadia Drury (political science), Robert Hariman (rhetoric & communication studies), David Nyberg (philosophy), Loyal Rue (religion & philosophy), and Richard Stivers (sociology).
  • "Speech & Power"
    The Nation Magazine, July 21, 1998, p. 12

    As the lead article in a Nation Magazine forum, entitled Speech & Power: Is First Amendment Absolutism Obsolete?, this piece argues that much current First Amendment law is anti-democratic. If a true democracy requires the limitation and dispersal of power, modern free speech principles invite the concentration of political and socio-economic power in the hands of corporate conglomerates. For more than two decades, commercial expression has received heightened levels of constitutional protection. As moneyed speech gains in constitutional value, the power dynamic of freedom changes immensely. In the process, citizen democracy succumbs to corporate democracy.
  • "We're All Censors Now?"
    in Books-on-Law, vol. 1, no. 7 (October, 1998)

    Reviewing Robert C. Post, editor, Censorship and Silencing: Practices of Cultural Regulation (Getty Trust Publications, 1998), this piece describes the postmodern view of censorship as illustrated by the fourteen essays in the collection, and analyzes some of the consequences, for both legal theory and political practice, of viewing censorship through postmodern lenses.
  • "Constitution Should Tell It Like It Is"
    National Law Journal, January 18, 1999, sec. A, p. 25

    Written as a Special to the "Podium" in The National Law Journal, this piece describes the peculiar and pathetic approach currently taken by American courts for according federal constitutional protection to sexual freedoms. Without explicit constitutional recognition of a fundamental right to consensual adult sex, meager aspects of sexuality have had to be portrayed in a non-sexual fashion and filtered through the lens of other rights (such as privacy, speech, or voter equality). The moral: Call the sex-right whatever you must, but never call it what it is. In our popular culture, sex is everywhere. In our constitutional culture, sex is nowhere. It is time to abandon closet constitutionalism.

  • "LesBiGay Identity as Commodity"
    90 California Law Review 223 (2002)

    In America's popular culture, LesBiGay identities abound. In its political culture, however, they emerge more tentatively. The commercial and entertainment industries increasingly commodify and celebrate LesBiGay identities. The courts and legislatures generally discount and condemn them. Thus, there is a deep dissonance between the validation of LesBiGay identities in the economic marketplace of items and ideas, and their devaluation in the legal arena of rights and remedies. This piece explores the deep dissonance that exists today between the validation of American LesBiGays in the commercial marketplace and their devaluation in political and legal arenas, and questions the failure of legal scholars and civil rights activists to account meaningfully for this dissonance in their theories and practices.

  • "The Landmark Free Speech Case That Wasn't: The Nike v. Kasky Story"
    54 Case Western Reserve Law Review 965 (2004)

    Written as the Foreword to a Symposium entitled "Nike v. Kasky and the Modern Commercial Speech Doctrine," this piece tells the background stories that brought the Nike v. Kasky players to the steps of the U.S. Supreme Court and beyond.  Subsequently, it explores the principles and perspectives at tension in the Nike controversy, and charts the lessons of the Nike story—legal, political, and cultural

  • "War Talk: Free Speech in Times of Armed Conflict"
    in Legal Times (November, 2004)

    Reviewing Geoffrey Stone, Perilous Times: Free Speech in Wartime (W.W. Norton, 2004), this essay describes how "the noble myth of the First Amendment malfunctions most seriously in times of war," and elucidates four important lessons to be gleaned from Stone's voluminous and masterful account of free-speech history.   
  • "What Is War? Reflections on Free Speech in 'Wartime'"
    36 Rutgers Law Journal 833 (2005)

    Written as the lead article for a Symposium issue commemorating the Free Speech in Wartime Conference held in January of 2005 at Rutgers Law School - Camden, this piece analyzes the following questions: What qualifies as "war" in the 21st Century?  Who determines when the country is at "war?"  And what effect, if any, should the existence of a "war" have on judicial review of First Amendment challenges?       
  • "Curious Concurrence: Justice Brandeis' Vote in Whitney v. California"
    2005 Supreme Court Review 333 (2006)

    A piece of jurisprudential sleuthing, this article uncovers the back story for a puzzle unanswered by legal historians for some eighty years:  Why would the free-speech libertarian Louis Brandeis write the most famous paean to First Amendment normative values in his opinion in Whitney v. United States, and yet join (by way of a concurring opinion) the judgment of the majority of the Court that would have sent the “patrician radical” Anita Whitney to prison for a 14-year term solely for participating in the formation of the California Communist Labor Party?  Part of the puzzle is provided by the unpublished Brandeis opinion in Rutherford v. Michigan, which is provided as an appendix to the article.         
  • "Trial of 'Angelheaded Hipsters:'  The Challenge to Howl"
    in Legal Times (November, 2006)

    Reviewing Howl on Trial: The Battle for Free Expression,. edited by Bill Morgan & Nancy Peters (City Lights Publishing, 2006), this essay describes the extraordinary decision of San Francisco Municipal Court Judge Clayton W. Horn in People v. Ferlinghetti that applied the U.S. Supreme Court's new obscenity doctrine to protect the publication and sale of Allen Ginsberg's Howl.  Additionally, the essay examines the strengths of this collection of original materials that document the story of the editing, publishing, and defending of the landmark poem.
  • "Paratexts as Praxis"
    37 Neohelicon 33 (2010)

    An article appearing in a symosium issue entitled Paratexts, this article charts out the technological, operational, institutional, commercial, and theoretical implications of moving from a print-based casebook paradigm to an electronic course book model. Central to this venture is what we call the Conceptions Course Book, the law school course e-book of the future.  
  • "The Guardians of Knowledge in the Modern State: Post's Republic and the First Amendment"
    87 Washington Law Review 1 (2012)

    This piece is the lead article, published as a "Foreword" in a symposium issue on Robert Post's book, Democracy, Expertise, Academic Freedom (Yale University Press, 2012). Other participations in the symposium included Judge Thomas Ambro and Paul Safier, Joseph Blocher, Paul Horwitz, Bruce Johnson and Sarah Duran, and Stephen Vladeck.