In this Article, we revisit the clash between private law and the First Amendment in the Supreme ... more In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court's recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival. Our argument is that the Supreme Court's theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment-tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or "public law in disguise." Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we brief...
Panelists:Kaimipono Wenger, Thomas Jefferson School of LawRethinking Mass Restitution: Slavery an... more Panelists:Kaimipono Wenger, Thomas Jefferson School of LawRethinking Mass Restitution: Slavery and Jim Crow Jason Solomon, University of Georgia Law SchoolWhat is Civil Justice? Stephen Munzer, UCLA School of LawCorrective Justice and Intellectual Property Rights in Traditional Knowledge Moderator:Doug NeJaime, Loyola Law School
Abstract: In the past decade, civil recourse theory has emerged as an important way of thinking a... more Abstract: In the past decade, civil recourse theory has emerged as an important way of thinking about tort law as individual justice, and private law more broadly. But it has also been criticized as lacking an adequate normative foundation. On its face, the right to civil ...
In this Article, we revisit the clash between private law and the First Amendment in the Supreme ... more In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court's recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival. Our argument is that the Supreme Court's theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment-tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or "public law in disguise." Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we brief...
Panelists:Kaimipono Wenger, Thomas Jefferson School of LawRethinking Mass Restitution: Slavery an... more Panelists:Kaimipono Wenger, Thomas Jefferson School of LawRethinking Mass Restitution: Slavery and Jim Crow Jason Solomon, University of Georgia Law SchoolWhat is Civil Justice? Stephen Munzer, UCLA School of LawCorrective Justice and Intellectual Property Rights in Traditional Knowledge Moderator:Doug NeJaime, Loyola Law School
Abstract: In the past decade, civil recourse theory has emerged as an important way of thinking a... more Abstract: In the past decade, civil recourse theory has emerged as an important way of thinking about tort law as individual justice, and private law more broadly. But it has also been criticized as lacking an adequate normative foundation. On its face, the right to civil ...
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