Category Archives: Articles

Domestic Agreements

In this Article I want to explore the treatment of certain domestic agreements in family law and to see what can be learned about law and families. It is a cliché, in discussions of family law and agreements, to point … Continue reading

Posted in Articles | Tagged , , , | Leave a comment

Limits of Private Law: Enriching Legal Dogmatics

In 2005, the Dutch Supreme Court decided a wrongful life case. During her pregnancy, a woman consulted her midwife because there were two cases of handicaps in her husband’s family, due to a chromosomal disorder. The midwife did not think … Continue reading

Posted in Articles | Tagged , , , | Leave a comment

Judges as Umpires

This Article, “Judges as Umpires” was inspired by the Senate Judiciary hearings on the nomination of John Roberts to be Chief Justice of the Supreme Court, and the metaphor was again invoked during the hearings on the nomination of my … Continue reading

Posted in Articles | Tagged , , , | Leave a comment

Of Blogs, E-books, and Broadband: Access to Digital Media as a First Amendment Right

A politics of Internet freedom has recently achieved cultural prominence. Legal theorists have described this new Internet politics as a form of digital libertarianism, cultural environmentalism, or identity politics uploaded from the offline world. This politics is critical of attempts … Continue reading

Posted in Articles | Tagged , , , | Leave a comment

“Jacob’s Voice, Esau’s Hands”: Transparency as a First Amendment Right in an Age of Deceit and Impersonation

Changes in media technology often require a reevaluation of the underlying assumptions that guide policymakers. A case in point is the electronic media’s move to digital technology. The literature that describes this transition and its policy implications has focused on … Continue reading

Posted in Articles | Tagged , , , | Leave a comment

A Listener’s Free Speech, A Reader’s Copyright

Two of the necessary conditions for a legitimate republican government are that each competent citizen have an equal vote and that each voter have access to the inputs needed for autonomous, informed decision-making. This Article assumes that the required inputs … Continue reading

Posted in Articles | Tagged , , , | Leave a comment

Freedom of the Press for Whom? The Question to be Answered in our Critical Juncture

“Freedom of the press for whom?” That was the question that Professor Jerome Barron raised some forty years ago. It was a revolutionary question because in six words it called into question the dominant perception of freedom of the press, … Continue reading

Posted in Articles | Tagged , , , | Leave a comment

Market Triumphalism, Electoral Patologies, and the Abiding Wisdom of First Amendment Access Rights

Jerome Barron’s seminal writings that advocate a First Amendment right of access to the media make a powerful case that constitutional speech protection must actually yield dynamic, broad-based public debate in order to ensure the vitality of our democratic society. … Continue reading

Posted in Articles | Tagged , , , | Leave a comment

In Search of Regulatory Equilibrium

Suggestions for how to reform the media obviously depend on what we think most needs reforming. But they also depend on our views of the most appropriate and constitutionally viable regulatory models for achieving reform. There is no dearth of … Continue reading

Posted in Articles | Tagged , , , | Leave a comment

Heckler’s Veto Case Law as a Resource for Democratic Discourse

Almost forty years ago, Jerome Barron proposed a listener-centered First Amendment right. He argued that the central concern of the First Amendment should be with the listeners—that difficult questions of competing First Amendment rights should be resolved with the goal … Continue reading

Posted in Articles | Tagged , , , | Leave a comment