The following articles are available
- "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
- "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.
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
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
- "The Pornographic
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
- "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.
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
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
Identity as Commodity"
90 California Law Review 223 (2002)
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)
as the Foreword to a Symposium entitled "Nike v. Kasky and
the Modern Commercial Speech Doctrine,"
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.
Talk: Free Speech in Times of Armed Conflict"
in Legal Times (November,
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.
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
A piece of
jurisprudential sleuthing, this article
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.
of 'Angelheaded Hipsters:' The Challenge to Howl"
in Legal Times (November,
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.