Scholarly Articles

I have organized my academic articles topically under the following categories:

  • assembly and association

  • free exercise

  • other First Amendment topics

  • law and theology

  • pluralism  

You can find most of these on my SSRN page or through the links below.

Assembly

Unlawful Assembly as Social Control, 64 UCLA L. REV. 2 (2017).

  • This Article advances the simple but important thesis that contemporary approaches to unlawful assembly cede too much discretion to law enforcement. Too many unlawful assembly provisions neglect important elements of earlier statutory formulations. They also ignore constitutional principles meant to constrain the scope and extent of discretionary enforcement of social control by public authorities. In doing so, they fall short of the aspirations of the First Amendment — stifling dissent, muting expression, and ultimately weakening the democratic experiment.

Re-Assembling Labor2015 ILL. L. REV. 1791 (2015) (with Marion Crain).

  • Scholarly commentary to date has overlooked the important connection between the collective, group-based nature of labor activism and the First Amendment’s right of assembly. We seek to draw the lessons of assembly squarely into contemporary labor law — to re-assemble labor law around the theory and doctrine of assembly that formed its early core. We begin in Parts I and II by situating the historical relationship between labor and assembly. Part III develops theoretical insights reinforced by the connections between assembly and labor, and obscured by the contemporary focus on the rights of speech and expressive association. Part IV applies these theoretical insights, suggesting how the gains of assembly might facilitate a richer understanding of labor unionism and its connections to the rest of First Amendment jurisprudence.

The First Amendment’s Public Forum, 55 WM. & MARY L. REV. 1159 (2015)

  • The ideal of the public forum represents one of the most important aspects of a healthy democracy.  It signifies a willingness to tolerate dissent, discomfort, and even instability.  The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today.  That distortion is partially attributable to two important doctrinal developments.  The first is increased judicial reliance on purportedly “content-neutral” time, place, and manner restrictions.   The second is the relationship between the public forum and the evolving government speech doctrine.   This Article suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause.  The public forum is a First Amendment doctrine, not a free speech doctrine.  And we will only comprehend its purposes and its possibilities when we rediscover the values underlying the rights of the First Amendment.

Virtual Assembly, 98 CORNELL L. REV. 1093 (2013).

  • This Article provides one of the first scholarly considerations of the constitutional boundaries for online groups. It explores both why and how we should protect these groups by asking two related questions. The first question is theoretical: do online groups implicate the kinds of values that warrant elevated constitutional protection. The second question is doctrinal: what is the best framework for providing constitutional protection to these groups. Virtual Assembly makes four contributions to emerging scholarship at the nexus of constitutional law, cyberlaw, sociology, and political theory. First, it demonstrates the normative and prudential reasons for protecting online groups. Second, it shows how expression includes the acts of exclusion, embrace, expulsion, and establishment (an observation that calls into question the Supreme Court’s category of “expressive association”). Third, it explains how the right of assembly applies in online contexts. Finally, it introduces the concept of nested groups — online groups that exist within other structural frameworks, such as Facebook and Internet service providers.

The Unsettling ‘Well-Settled’ Law of Freedom of Association, 43 CONN. L. REV. 149 (2010)

  • This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply to the groups denied their protections. The Roberts categories of intimate and expressive association set in place a framework in which courts sidestep the hard work of weighing the constitutional values that shape the law that binds us. This article exposes the problems inherent in these categories and calls for a meaningful constitutional inquiry into laws impinging upon associational freedom. It suggests that the Court eliminate the categories of intimate and expressive association and turn instead to the right of assembly, which emphasizes the centrality of dissent to associational freedom.

The Forgotten Freedom of Assembly, 84 TUL. L. REV. 565 (2010)

  • The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called ‘the right of the people peaceably to assemble’ part of ‘the Constitutional substitute for revolution’. In 1939, the popular press heralded it as one of the ‘four freedoms’ at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the ‘basic liberties’. But in the past thirty years, assembly has been reduced to a historical footnote in American law and political theory. Why has assembly so utterly disappeared from our democratic fabric? This article explores the history of the freedom of assembly and what we may have lost in losing sight of that history.

The Strange Origins of the Constitutional Right of Association, 77 TENN. L. REV. 485 (2010)

  • Although much has been written about the freedom of association and its ongoing importance to the American experiment, much recent scholarship mistakenly relies on a truncated history that begins with Roberts v. United States Jaycees, the case that divided constitutional association into intimate and expressive components and introduced the paradigm that continues today. Roberts’s doctrinal framework has been rightly criticized. But neither the right of association nor all of its doctrinal problems start with Roberts. The Court’s foray into the constitutional right of association began a generation earlier, in its 1958 decision,NAACP v. Alabama. This article offers a new look at the Court’s initial approach to the right of association. I highlight three factors that influenced the shaping of association: (1) the conflation of rampant anti-communist sentiment with the rise of the civil rights movement (a political factor); (2) infighting on the Court over the proper way to ground the right of association in the Constitution and the relationship between association and assembly (a jurisprudential factor); and (3) the pluralist political theory of mid-twentieth century liberalism that emphasized the importance of consensus, balance, and stability (a theoretical factor). I suggest how these factors shaped a right of association with an ambiguous constitutional anchor and an ill-defined doctrinal framework. Despite its shortcomings, the right of association quickly took hold in legal and political discourse and handed the Court a resource that has arguably become more responsive to political pressure than constitutional principle. Part of that whimsicality stems from the Court’s reformulation of the right of association in Roberts. But Roberts cannot bear all of the blame. If today’s freedom of association is less than we might like it to be, the roots of its problems may lie in the political, jurisprudential, and theoretical factors present at its inception.

Free Exercise

Peyote and Ghouls in the Night: Justice Scalia's Religion Clause Minimalism, 15 FIRST AMENDMENT L. REV 239 (2017)

  • The late Justice Antonin Scalia held a minimalist view of the religion clauses: the Free Exercise Clause does not protect against neutral laws of general applicability, and the Establishment Clause prohibits neither longstanding traditional practices nor legislative acts with a plausible secular purpose. In both free exercise and establishment cases, Scalia resisted judicial second-guessing of legislative judgments unless he saw an explicit singling out of religious practice. Yet Scalia had an uneven influence on religion clause jurisprudence. When it came to the Free Exercise Clause, he played a pivotal role in shaping a doctrinal framework that has arguably created more tensions than it has resolved. In contrast, when it came to the Establishment Clause, he failed to influence his colleagues to alter a doctrinal framework that arguably remains less coherent than it would have been under his proposed alternative. The net result is the worst of both worlds: a Court that followed Scalia into a murky free exercise experiment and ignored his pleas to clarify its understanding of establishment. This Article explores Justice Scalia’s religion clause minimalism in six opinions. It then considers three difficulties raised by his approach: one theoretical, one doctrinal, and one normative. The theoretical difficulty is that Scalia’s minimalism made him less likely to help religious minorities that he believed worth protecting. The doctrinal difficulty is that his minimalism makes it difficult to justify the Court’s protections for religious institutions. The normative difficulty — for those who favor strong religious liberty protections — is that his minimalism makes it hard to require that discretionary public funding include religious beneficiaries.

The Four Freedoms and the Future of Religious Liberty92 N.C. L. REV. 101 (2014)

  • The First Amendment’s rights of speech, press, religion, and assembly were once “interwoven” but distinct.  Together, these freedoms advanced a pluralist skepticism of state orthodoxy that protected religious and other forms of liberty.  The connections among these rights were evident at the Framing.  They were also prominent during the 1930s and 1940s, when legal and political rhetoric recognized the “preferred position” of the “Four Freedoms.”  Our forgetting the Four Freedoms is nowhere more evident than in the diminishing constitutional protections for religious groups, which are paradigmatic of the expressive, dissenting, and culture-forming groups of civil society.  The Four Freedoms remind us that the boundaries of religious liberty have never rested solely in the First Amendment’s free exercise clause—religious liberty is best strengthened by ensuring robust protections of more general forms of liberty. 

Justice Ginsburg and Religious Liberty, 63 HASTINGS L.J. 1213 (2012)

  • Justice Ginsburg has left an important mark on many areas of the Supreme Court’s jurisprudence, but she has written relatively little in the area of religion. This relatively small footprint increased significantly in the opinion that she wrote in the Court’s 2010 decision in Christian Legal Society v. Martinez. This essay examines three strands of Justice Ginsburg’s jurisprudence leading up to the opinion that she authored in Martinez: religion, government funding of expression, and equality. It considers the interplay of these three strands in Martinez, and offers three observations. First, because Martinez pitted religious liberty against liberal equality, it forced Justice Ginsburg to make a choice that prioritized one over the other and may have caused her to overlook some of the religious dimensions of the case. Second, Justice Ginsburg’s previous views about government funding of speech should have caused her greater concern over the implications of unconstitutional conditions in this case. Third, Martinez ultimately failed to address the values clash directly, relying instead on doctrinal intricacies that detracted from the core issues raised in this case.

Other First Amendment topics

Holmes, Humility, and How Not to Kill Each Other, NOTRE DAME L. REV (forthcoming 2019)

  • Oliver Wendell Holmes’s dissent in Abrams v. United States is one of the intellectual anchors of modern First Amendment doctrine. In the century since Abrams, we have witnessed changes in society, technology, and politics that have shaped and reshaped the contours of our First Amendment landscape. But not everything has changed — some aspects of our human experience remain remarkably similar to the context in which Holmes wrote. One unchanged aspect of the human condition is our inability to know with certainty. Confronted with this reality in his own day, Holmes at times gestured toward a foundationless relativism. But even if his larger corpus tends in that direction, his Abrams dissent can be read to sketch a less skeptical approach rooted in a kind of epistemic humility. This interpretation enlists Holmes as an advocate for more charitable discourse across deep differences. In today’s pluralistic society, acknowledging our lack of certainty can help us move toward better dialogue with one another.  Part I offers a reading of Holmes’s Abrams dissent that focuses on the humility underlying Holmes’s epistemic claims and explains the implications of this humility for discourse norms. Part II distinguishes epistemic humility from more skeptical views. Part III then applies a lens of epistemic humility to three kinds of truth claims in contemporary discourse: claims whose certainty is not provable (focusing on the example of religious claims), claims whose practical certainty is not yet proven (focusing on the example of medical treatments of transgender children), and claims that are certain to be false (focusing on the example of demonstrable lies).

Institutions in Context, 50 TULSA L. REV. 491 (2015)

  • This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates.  

More is More: Strengthening Free Exercise, Speech, and Association, 99 MINN. L. REV. 485 (2014)

  • Prominent scholars have suggested that one important means of strengthening the First Amendment is by limiting its protections to “core” interests.  Philip Hamburger has asserted the argument most forcefully.  His generalized worry is that expanding the coverage of First Amendment rights shifts absolute protection of a defined core to contingent “balancing” for all claims asserted under those rights.  In the context of religious liberty, he contends that “[t]he expansion of the First Amendment’s right of free exercise has undermined its core.”  In Hamburger’s words, “more is less.”  We can think of these cautions as arguments for rights confinement.  On this view, legal doctrine will be most resilient to cultural pressures when it is construed narrowly.  But the interplay between doctrine and cultural views suggests that rights confinement is an unproven, and indeed, unprovable, theory. Sometimes rights expansion will increase rights protection.  Sometimes “more is more.”

Making Sense of  Schaumburg: Seeking Coherence in First Amendment Charitable Solicitation Law, 92 MARQ. L. REV. 551 (2009)

  • This Article focuses on three cases in the 1980s that shaped the Supreme Court’s approach to charitable solicitation: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Munson (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear rationale for the value of charitable solicitation and lower courts without a workable test for evaluating regulations affecting this form of speech. I propose a new test that incorporates current notions of content analysis and tiered scrutiny and better accounts for the speaker-based interests tied to charitable solicitation.

Law and Theology 

The Freedom of the Church (New Revised Standard Version), 21 J. CONTEMP. LEGAL ISSUES 335 (2013)

  • Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. This Article adds to the mostly Catholic discussion of the freedom of the church a Protestant account: the New Revised Standard Version. The Protestant account reinforces some of the normative claims underlying the Catholic story, but through a lens more familiar to American political thought.

Stanley Hauerwas and the Law: Is There Anything to Say?, 75 LAW & CONTEMP. PROBS. i (2012)

  • This essay is the special editor’s introduction to a symposium in Law & Contemporary Problems that explores the work of theologian Stanley Hauerwas and its implications for law and legal scholarship. Although not well-known in the legal academy, Hauerwas is an important scholar and public intellectual who has written scores of books and hundreds of articles, been named “America’s Best Theologian” by Time Magazine, and delivered the prestigious Gifford Lectures. The inattention to Hauerwas in legal scholarship is particularly odd given that he has written for decades about issues central to the law: violence, liberalism, bioethics, theories of disability, theories of interpretation, capital punishment, just war theory, reconciliation, public reason, patriotism, euthanasia, abortion, and religious freedom, to name only a few of the more obvious connections. This introductory essay is aimed at an audience largely unfamiliar with Hauerwas’s thought. It situates the symposium essays and suggests why legal scholars ought to pay greater attention to his work. Symposium contributors include Michael Moreland, Lisa Schiltz, James Logan, Brad Wendel, David Skeel, Cathy Kaveny, Charlton Copeland, John Inazu, Steve Macedo, and Stephen Carter. The Law & Contemporary Problems volume also includes a transcribed dialogue between Stanley Hauerwas and Jeff Powell (from a conference at Duke that brought together the symposium contributors), and Hauerwas’s written response to the symposium essays. 

The Limits of Integrity, 75 LAW & CONTEMP. PROBS. 181 (2012)

  • This article draws upon the work of theologian Stanley Hauerwas to demonstrate how Ronald Dworkin’s theory of law as integrity relies upon secular liberal presuppositions. Dworkin’s constraint on “religious convictions or goals” not only inhibits theological argument in our discussions about law and legal interpretation, but also neutralizes what may be the strongest objections to Dworkin’s normative views. The juxtaposition of Hauerwas and Dworkin is particularly apt because both hold similar interpretive commitments that hang in the balance between a fixed textualism and an unbounded pragmatism. Both justify their epistemic practices by a kind of faith — they do not and cannot know what comes next in their interpretive traditions. 

No Future Without (Personal) Forgiveness: Reexamining the Role of Forgiveness in Transitional Justice, 10 HUM. RTS. REV. 309 (2009)

  • The Article explores the political possibilities of personal forgiveness in transitional justice. Personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. The victim forgives only that harm which has been done to him or her. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, it is my three-fold contention that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including legal forgiveness), while not without a normative function, cannot effectuate either personal or political forgiveness; and (3) personal forgiveness requires a shared narrative framework to lead to political forgiveness.

Pluralism

The Purpose (and Limits) of the University, UTAH L. REV. (2018)

  • This Article links insights from scholars of the university and legal scholars to clarify and defend the purpose of the university against growing technological, ideological, and cultural pressures. It argues that a better understanding of the relationship between the First Amendment and the public university can help strengthen the coherence of the university’s purpose against growing technological, ideological, and cultural pressures. The connection between the First Amendment and institutional purpose is in some ways unsurprising. Limits on expressive liberties have always set the boundaries of expression for political communities, and the university is a kind of political community. These boundaries reflect something about a community’s goals, values, and ultimately, its purpose. Part I briefly explores the nature of the university. Part II focuses more closely on the residential public university. Part III turns to five issues at the intersection of the First Amendment and the public university: academic freedom, public employee speech, public forums, safe spaces, and religious pluralism.

A Confident Pluralism, 88 S. CAL. L. REV. 587 (2015)

  • A confident pluralism seeks to maximize the spaces where dialogue and persuasion can coexist with deep and intractable differences about beliefs, commitments, and ways of life. It is based upon two normative premises. The first is a suspicion of state power, a view that operates primarily as a constraint upon government. The second is a commitment to letting differences coexist, until (and unless) persuasion eliminates those differences. The second premise suggests that it is better to tolerate than to protest, better to project humility than certainty, and better to wait patiently for the fruits of persuasion than force the consequences of coercion.