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The Supreme Court in Snyder extolled the protected status of hate speech as essential to First Amendment values, even when targeting a private funeral where it caused significant emotional harm to grieving family members. The Court in essence ruled that hate speech, no matter how offensive and intentionally hurtful, is protected if it addresses a matter of public concern in a public place. This article contends that the near-absolutist position the Court espoused in Snyder does not comport with established First Amendment jurisprudence, which acknowledges several categories of unprotected or less protected speech. Nor can the Court’s analysis be reconciled with other decisions, which recognize that in some contexts concerns for human dignity, equality, and privacy outweigh First Amendment values. A review of this jurisprudence demonstrates why virulent, outrageous hate speech that targets private individuals for the purpose of directly inflicting egregious psychological harm should not enjoy unlimited First Amendment protection when injured parties bring civil tort suits for damages. . . .
For more information about Professor Levinson’s Donahue Lecture (which served as the basis for this article), as well as photos and audio from the event, please click here.
Work-family policy debate in the United States has focused on work and the workplace, and has presumed its primary beneficiaries are women. Women’s increased participation in the workplace brought the conflict between work and family sharply into view, and generated solutions geared toward assisting women. An underlying assumption has been that men would change at home by taking on a fair share of family work and care, consistent with norms of equality and gender neutrality.
Consistent with these norms, if equality were defined as co-equal shared parenting to balance dual wage-earning, equality would generate a revolutionary shift in fatherhood. Recalibration toward equality, however, has not taken place. Women continue to not only do wage work but also do a “second shift” of household and family work.
Most men are not coequal caregivers; at best, they are secondary caregivers, at worst, uninvolved with their children.“New census data on family living arrangements suggest that fewer fathers may be participating in their children’s lives than in any period since the United States began keeping reliable statistics.” The persistence of inequality is linked to the minimal scope of the United States’ work-family policy as well as ongoing employment discrimination against women despite their increased presence in the workplace.
Beyond the lack of supportive policy and persistent discrimination, however, is the slow pace of change at home. The dramatic change in the position of women with respect to wage work—albeit still unequal to men—has not been matched by a similar change in men’s role and work at home. While the ideal of care has changed, the reality has shifted only slightly.What is the reason for this asymmetric pattern? The answer, I suggest, lies in the construction of masculinities.
If we want to achieve a different reality of men’s care, then we must reconstruct masculinities. In order to have a better father, you must have a better man. . .
For more information about Professor Dowd’s Donahue Lecture (which served as the basis for this article) as well as photos and audio from the event, please click here.
There is good reason to think that law and war have nothing to do with one another, and this has certainly been so for most of the lifetime of mankind. Cicero’s famous observation—silent enim leges inter arma—from which I take my title, was not a novel insight when uttered in 52 B.C. and in any case was not said in the context of war, but of a prosecution for murder in the aftermath of the Roman riots of that era between the partisans of the populares and optimates. Clausewitz, however, said much the same thing when he decried moderation in warfare, and expressed contempt for legal rules:
“War is . . . an act of force to compel an enemy to do our will. . . . [A]ttached to force are certain, self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it. Force—that is, physical force, for moral force has no existence save as expressed in the state and its law—is thus the means of war.”
This view of law and war as mutually exclusive has prevailed through most of the various periods in the life of the modern state. . .
For more information about Professor Bobbitt’s Donahue Lecture (which served as the basis for this article) as well as photos from the event, please click here.
In November 2008, one week after Barack Obama was elected as our forty-fifth President, I had the honor of delivering a Donahue Lecture at Suffolk University Law School. “A National Security Agenda” offered thoughts on national security challenges, priorities and strategies for a new presidential administration. Now, more than one year later, this paper is a “scorecard” on the success of these earlier recommendations and the new administration’s actions. In the pages following, what has been accomplished and what remains is reviewed and judged against my earlier suggestions, in the hope of encouraging readers in their own analysis. . .
For more information about Dean Parker’s Donahue Lecture (which served as the basis for this article) as well as audio from the event, please click here.
It was my great pleasure to come to Suffolk University Law School to join the ranks of the many distinguished individuals who have delivered the Donahue Lecture. The topic of this lecture is the simple chemical, carbon dioxide, which is, now officially, our newest pollutant. The first question to ask is why I chose this particular title for carbon dioxide, a substance that predates the industrial revolution and is, in limited quantities at least, necessary for the survival of life as we know it on this planet. The answer relates to complexities that lie beyond my control under the peculiar statutory framework for dealing with pollutants under the Clean Air Act (CAA), which is administered by the Environmental Protection Agency (EPA). Pollutants must be registered under the CAA, and there has been a huge dispute—which I shall explain later on—about whether or not carbon dioxide should be registered as such under the Act. After much internal debate, the Bush Administration said no. The states, led by Massachusetts, thought that the answer ought to have been yes. They forced the issue to the Supreme Court, which held in Massachusetts v. EPA that, although the EPA was not necessarily bound to make that “endangerment” determination, it was nonetheless authorized to do so because carbon dioxide fell within the CAA’s definition of an “air pollutant.” Under the CAA, an “air pollutant” is “any physical [or] chemical . . . substance or matter which is emitted into or otherwise enters the ambient air.” . . .
For more information about Professor Epstein’s Donahue Lecture (which served as the basis for this article) as well as audio from the event, please click here.
DEAN ALFRED C. AMAN: Good afternoon and welcome to part two of our Donahue Lecture Series. We are honored to have a very distinguished panel who will be commenting on Justice Kirby’s talk that you have just heard. I want to introduce all the members of the panel all at once and then they will speak in an order that goes across the table. When they finish I am hoping that Justice Kirby will have some comments, responses, or resonances. At that point, we want to open it up to questions and discussion from the audience. We have with us four commentators today, beginning with Professor Eric Blumenson, who needs no introduction at Suffolk Law School. He came here from criminal law practice in Seattle and later in Boston and has been teaching Criminal Law at this law school as well as Moral and Legal Philosophy, Human Rights, and Jurisprudence. He has been a Fulbright scholar in Lahore, Pakistan, and a visiting professor at the University of Witswatersrand in South Africa. He was a reporter to the Supreme Judicial Court’s Criminal Rules Advisory Committee. He was responsible for drafting the first major revision to the Massachusetts Criminal Rules. His scholarly work includes a two-volume criminal law treatise, numerous articles on criminal law, human rights, and philosophy. . .
For more information about Justice Kirby’s Donahue Lecture (which served as the basis for this discussion) please click here.
DONAHUE LECTURE AND PANEL DISCUSSION
A particular feature of the past fifty years has been the introduction of the post-war independence constitutions of many nations. The introduction of such constitutions in India, Pakistan, Ireland, Ceylon, and then many parts of Africa, Asia and the Caribbean, has resulted in the adoption of human rights provisions that sometimes reflect an international template. Quite often, such provisions, in repeated language, can be traced to earlier progenitors, including the English Bill of Rights of 1688, the Bill of Rights of the American Constitution after 1791, and the Universal Declaration of Human Rights of 1948.
To many judges in national courts, faced with cases for decision involving the meaning of their own constitutional charters of rights, it has often seemed appropriate and useful, over recent years, to reach for the exposition of analogous problems written by judges and decision-makers in the courts of other countries, in international or regional courts and other bodies, grappling with similar problems. Doing so has not generally been viewed as evidencing any illegitimate loyalty, or deference, to nonbinding texts. Still less has it been seen as exhibiting obedience to the legal norms of other countries or the international community, or to the opinions of judges and others outside the legitimacy of the municipal court hierarchy. Instead, reference to such elaborations has occurred because such expositions have been found helpful and informative and therefore useful in the development of the municipal decision-maker’s own opinions concerning apparently similar problems presented by the municipal constitution or other laws.
For more information about Justice Kirby’s Donahue Lecture (which served as the basis for this article) please click here.
Poets and writers often work unseen, shuttered away in rooms and silences so wide and clear that to speak in this kind of silence one must have the courage to listen to oneself. Visual artists celebrate the light and solitude of their studios, the being alone with one’s self in the world. There may be art on the writing room walls or music playing in the studios, but there is rarely conversation. Unseen and unheard, artists and writers are free alone to devolve everything they are into the work they make.
Law more often proceeds in formal spaces filled with art, carpets, and ceremonial gestures where language moves between people, much as it does in conversation. Law, though, imposes a structure on its dialogue, an exchange of questions and answers that mirrors the form of legal reasoning and the internal dialogue seen throughout appellate cases. In courtrooms and classrooms, the language of law defines a geography where arguments and strategies about hierarchies, authority and legal categories displace concerns with justice and caring, social context and ethical dilemmas. Sadly and too often, the messy details of law’s human stories go unseen and unheard.
For more information about Justice Kirby’s Donahue Lecture (which served as the basis for this discussion) please click here.
It was late in November of 1972. Roe v. Wade had been under consideration at the Supreme Court for a year, with release of the opinion now less than two months away. Justice Lewis F. Powell, Jr., one of Justice Harry A. Blackmun’s most steadfast allies throughout the decisional process, received a memo from one of his law clerks critiquing Blackmun’s most recent draft. “HAB has placed considerable emphasis on the role of the physician and the free exercise of his professional judgment,” the law clerk, Larry A. Hammond, wrote. . . .
On September 11, terrorists fly hijacked airliners into the World Trade Center and the Pentagon. Over 3,000 Americans are killed. The nation—indeed the world—is stunned. The French paper Le Monde runs the headline: “We are all Americans.” There are candlelight vigils outside the United States Embassy in Tehran.
The American government responds immediately. On September 18, Congress passes a joint resolution authorizing the President
to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The lawyers of the Executive branch are also at work. A September 25 memorandum from Deputy Assistant General John Yoo of the Office of Legal Counsel (OLC) asserts that the President can “deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.” The Framing generation, the memo explains, “well understood that declarations of war were obsolete.” No statute, it concludes,
“can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” . . . .
For more information about Professor Roosevelt’s Donahue Lecture (which served as the basis for this article) please click here.