First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:

1. Ruben G. Rumbaut (University of California, Irvine- Department of Sociology), Assimilation's Bumpy Road, published in AMERICAN DEMOCRACY AND THE PURSUIT OF EQUALITY, M. Chowkwayun & R. Serhan eds., pp. 184-219, Paradigm Publishers (2011).  The abstract states:

“Assimilation,” a protean concept with an American pedigree and a checkered past, is back in vogue. But in academic and colloquial usage, in social science, public policy and popular culture, the idea and the ideal of “assimilation” have had a bumpy history. Over time the term has conflated various normative prescriptions (“e pluribus unum,” “melting pot”) and empirical descriptions (cultural adaptations, economic mobility, social acceptance by a dominant group) to make sense of the incorporation of “ethnic” difference in American life. After more than a century of use and misuse the term itself remains confusing and contentious. For a “canonical” concept, there remains surprising ambiguity as to its meaning, measurement and applicability. This essay, prepared for a Festschrift in honor of Herbert J. Gans, explores the history of the idea in American society and social science as a master frame and the teleology of Progress underlying it; considers cultural, social, legal, economic and identificational indices of intergenerational change among contemporary ethnic groups based on an array of census and survey data; and raises questions about the limitations and paradoxes of the concept itself in the study of ethnicity and inequality in American life. Despite the grand narratives of modernization which undergird the concept of assimilation, neither race nor religion nor ethnicity has vanished in American life. Linguistic “Anglicization” and other forms of acculturation do proceed rapidly, especially among immigrant children and the second generation. But alongside undeniable upward social mobility from the first to the second generation for most groups, especially the children of the poorest and least educated - though the gains appear to peak in the second generation and decline or plateau thereafter - there is compelling evidence of widening “ethclass” and legal inequalities, of new conflicts and political mobilizations around ethnic and racial issues, and of downward mobility and marginalization for vulnerable segments of these populations. An undocumented status has become a caste-like master status blocking access to the opportunity structure and paths to social mobility for millions of immigrants. A fraught concept like “assimilation,” weighted by the normative baggage of its past, seems ill-suited to grasp these complex dynamics and to focus critical attention on enduring structural inequalities and persistent ethnic and pan-ethnic formations in this “permanently unfinished” society. 

2. John D. Haskell (University of Helsinki-Eric Castren Institute of International Law and Human Rights (ECI)), Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism and the Politics of Restatement and Denial, published in Emory International Law Review, Vol. 25, No. 1, (2011).  The abstract states:

Hugo Grotius (1583-1645) frequently occupies the title, ‘father of international law’. While the origins of professional lineage were a source of professional and personal conflict for jurists in the 19th century, scholars today tend to treat Grotius as either a symbolic marker of changing historical thought, or the symbolic figure of a style or school of global governance. These two contemporary streams of remembrance operate within a dense background of assumptions about the nature and possibilities of the global order, which raise at least three sets of curiosities. First, in light of nuanced scholarship of Grotius’ primary materials in recent decades, what does an emphasis on the actual content of Grotius’ work impart about the character of his times, and through what lens should we organize our understanding (e.g., political, juridical, theological, and so on)? Second, what inspires the almost cyclical (or perhaps more perversely, fetishistic) attraction to Grotius in the fields of international law and politics, and how might this help us better understand both the psychological and structural underpinnings of contemporary practice, or even the nature and trajectory of the profession in a more broad sense? And third, in lieu of any findings, what if any possibility does this attraction to Grotius open up for future strategic, or even imaginative engagement? In sum, what stories does the Grotius rhetoric allow us to tell about the international legal order, and do such stories carry any political, if not personal, impact?
 
It is these questions that I attempt to grapple with in this paper in the hopes of providing a concise synthesis of the various engagements within the Grotian tradition to better understand the imaginative contours of our contemporary professional vocabularies and reflect on any emancipatory possibilities this might open up. What seems particularly striking is while ever more scholarship exposes a strong empirical dissonance in respect to the memory of Grotius, such representations continue to exercise powerful sway over ongoing discussions about the past, present, and future of global governance. In response, I have organized the paper into three themes, which overlapping in some respects, are nevertheless helpful in parceling out the various approaches and motivations at work in the literature. The first and second sections provide an overview and then a revisionist account of the claims to what might be labeled the turn to ‘the secular’ and ‘liberal tolerance’. In the third section, the paper moves to reflect more broadly upon the implications of this attraction, attempting particularly to deduce some possible motivations for the continuous misreading of Grotius’ actual work. In conclusion, I briefly trace out some initial suggestions about an alternative future towards the legacy of the Grotian tradition, what might be characterized as a shift from a politics of restatement and denial to a politics of truth.

3. Meredith Render (The University of Alabama School of Law), Power, Paradigm, and Legal Prescriptions: 'The Rule of Law' as a Necessary but Not Sufficient Condition for Transitional Justice, published in TRANSITIONS, Austin Sarat, ed., (2011).  The abstract states:

This essay considers the various ways that law functions to sometimes perpetuate and sometimes prevent genocide and other mass catastrophes in transitional societies. In particular, the essay examines three conceptually distinct aspects of law within a given society -- the concept of law, the “rule of law” and the role (or function) of law – and posits that only by considering the interplay of these three aspects of law within transitional societies can we fully appreciate the necessity of a robust commitment to the rule of law as a bulwark against mass atrocity within transitional societies.
 
The essay offers a response and supplement to the insights contained in David Gray’s interesting essay, "Transitional Disclosures: What Transitional Justice Reveals about Law” in which Gray thoughtfully challenges the conventional view that a commitment to the rule of law is the sole and best hope for preventing mass atrocity given the role that “law” and legal officials often play in perpetuating mass violence, and contends that dynamic stability among competing and overlapping identities (i.e. religious, ethnic, class) and associations is necessary to stave off abusive regimes. While this essay accepts the latter insight, I argue that Gray’s multi-dimensional “law as paradigm” understanding of the relationship between legal institutions and abusive norms obscures important distinctions between the concept of law, the rule of law, and the role of law. By retracing these distinctions, the essay demonstrates that a robust commitment to the rule of law is indeed a necessary (but not sufficient) condition for preventing the rise of abusive regimes, even within Gray’s own prescription. 

4. Luke Beck, The Constitutional Prohibition on Religious Tests, published in Melbourne University Law Review, Vol. 35, No. 2, (2011).  The abstract states:

Section 116 of the Australian Constitution sets out four important guarantees of religious freedom. The fourth clause of that section provides that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. During the Convention Debates, the religious tests clause was described as being the least necessary clause of s 116 on the basis that there were no remaining religious tests in the Australian colonies and that it was outlandish to think that the Commonwealth would ever impose one. This paper seeks to explore the meaning of the religious tests clause and refute those two suggestions. It seeks to show that at the time of Federation religious tests remained in the Australian colonies. It also seeks to show that the Commonwealth today, albeit unconstitutionally, requires the satisfaction of religious tests for certain public positions. 

5. Niamh Howlin (Queen's University Belfast), English and Irish Jury Laws: A Growing Divergence 1825-1833, published in THE LAWS AND OTHER LEGALITIES OF IRELAND, 1689-1850, Michael Brown, ed., Ashgate, (2011).  The abstract states:

Although the Irish system of trial by jury had its roots in the laws of England, the late eighteenth and early nineteenth centuries saw the beginnings of a divergence between the jury systems of the two countries. By the second half of the nineteenth century the differences had become even more pronounced, and the effect that this had during the turmoil of the 1870s and 1880s has been documented elsewhere. There were various reasons why Irish jury trials operated differently to those in England; some relating to procedural variations which evolved over time; some with their roots in the specific social and political make-up of the Irish population; some stemming directly from a failure to legislate in the early years of the nineteenth century, and some arising out of differences between English and Irish juries legislation when this was eventually enacted in both countries. There were also numerous ways in which the differences between jury trials in the two countries manifested themselves. The social, political and religious make-up of Irish society in the late eighteenth and early nineteenth centuries meant that there was a comparatively small pool of potential jurors. In order to ensure that there were enough suitable jurors to try all civil and criminal cases, it was found necessary to provide for a lower property qualification for Irish jurors than pertained in England. The categories of persons exempted or disqualified from jury service differed in both countries. In addition, crown prosecutors in Ireland made use of their right to order jurors to ‘stand aside’, and all parties made extensive use of their right to challenge jurors where this was deemed necessary. The cumulative effect of these factors was that Irish juries had their own distinctive composition. There also arose, as a result, several notable differences in relation to certain aspects of jury procedure in the two countries. These seemingly innocuous procedural discrepancies could have a significant impact on the trial itself, and on the justice system as a whole. This paper examines the perceived need to legislate for jury reform in the early nineteenth century, and considers why attempts to introduce Irish jury legislation in the wake of the English Act of 1825 initially failed. Finally, it will outline the role of the Irish bench in shaping the Juries (Ireland) Act 1833. 

6. T.J. McIntyre (University College of Dublin-School of Law), Child Abuse Images and Cleanfeeds: Assessing Internet Blocking Systems, forthcoming in RESEARCH HANDBOOK ON GOVERNANCE OF THE INTERNET, Ian Brown, ed. Edward Elgar.  The abstract states:

One of the most important trends in internet governance in recent years has been the growth of internet blocking as a policy tool, to the point where it is increasingly becoming a global norm. This is most obvious in states such as China where blocking is used to suppress political speech; however, in the last decade blocking has also become more common in democracies, usually as part of attempts to limit the availability of child abuse images. Numerous governments have therefore settled on blocking as their “primary solution” towards preventing such images from being distributed.
 
Child abuse image blocking has, however, been extremely controversial within the academic, civil liberties and technical communities. Why have these systems been so controversial? Two lines of criticism can be identified, which might be termed the practical and the principled. The practical argument claims that blocking is ineffective, with ill-defined goals and easily evaded by widely available circumvention technologies. The principled argument, on the other hand, is that blocking systems undermine the norms associated with freedom of expression in democratic societies.
 
This chapter introduces and evaluates these claims by examining three prominent examples of child abuse image blocking – the United Kingdom Internet Watch Foundation Child Abuse Image Content list, the European Union sponsored CIRCAMP system and United States hash value systems. It discusses the operation of each and the extent to which the critics’ concerns are borne out. It concludes by considering the lessons which might be learned for proposals to extend blocking to other types of content. 

7. Kristie Anne LaSalle, Note - A Prescription for Change: Citizens United's Implications for Regulation of Off-Label Promotion of Prescription Pharmaceuticals, published in Journal of Law & Policy, Vol. `9, p. 867 (2011).  The abstract states:

This Note examines the complex regulatory structure that controls off-label promotion of prescription pharmaceuticals. Using the recent case of United States v. Caronia as an example of the unconstitutional shortcomings of this regulatory scheme, the Note analogizes the FDA's obstruse regulatory scheme to the corporate campaign contributions limitations struck down in Citizens United v. FEC, and argues that the same logic applied in Citizens United should be applied to the regulation of truthful speech regarding prescription pharmaceuticals. 

8. Clive Walker (University of Leeds-Centre for Criminal Justice Studies (CCJS)), Militant Speech About Terrorism in a Smart Militant Democracy, published in Mississippi Law Journal, Vol. 80, No. 4,  (2011).  The abstract states:

When faced with terrorism, the state should be “militant” but, state action must recognize that terrorism often represents endemic reactions to modernity and late modernity. The “smart militant state” must therefore work out forms of militant reaction that become more or less per-manent and must adopt forms that can be accommodated within fundamental values rather than displacing them even during a temporary period of “emergency.” Having thus set the scene for action by a “smart militant democracy,” it is intended in this paper to consider the performance by the United Kingdom state in the context of a classical dilemma facing a militant democracy. That context is the appropriate response to militant speech—speech that in some ways encourages extremist political violence, but which is deli-vered in a mode that avoids participation in violence or even the traditional inchoate crimes of incitement or solicitation. Just two responsive state measures of militancy will be selected for discussion in this paper. Both were enacted by the UK's Terrorism Act 2006, and both relate to indirect incitement and glorification of terrorism. 

JFB