First Amendment Architecture
The right to free speech is meaningless without some place to exercise it. But constitutional scholarship generally overlooks the role that judicial doctrine plays in ensuring the availability of spaces for speech. Indeed, scholarship generally characterizes doctrines that are concerned with speech spaces, such as public forums and Internet forums, as “exceptions” to “standard”
This Article adopts a different approach. Rather than making the descriptive assumption that free speech doctrine is unconcerned with spaces, this Article identifies and interprets the Court’s role in ensuring, requiring, or permitting government to make spaces available for speech. This Article identifies five persistent judicial principles across a range of physical and virtual spaces. These principles are evident in precedent and practice that either require or permit government to ensure spaces for speech—in order to promote particular, substantive speech goals. Further, rather than quarantining these speech principles as exceptions to the “standard” analysis, this Article explores the significance of these principles for “core” speech doctrine and theory. The resulting analysis poses fundamental challenges to conventional wisdom about the First Amendment and the normative principles generally believed evident in doctrine. This Article provides timely guidance for legislators and judges, as it should inform statutory and constitutional decisions for shaping access to the technology enabled virtual spaces increasingly central to Americans’ discourse, to our liberty, and to our democracy.
Federal Sentencing Policy: Changes Since the Sentencing Reform Act of 1984 and the Evolving Role of the United States Sentencing Commission
William K. Sessions III
The Thomas E. Fairchild Lecture, University of Wisconsin Law School, April 15, 2011
Anthony V. Alfieri
This Essay is part of an ongoing classroom study and clinical service project addressing the mindful education of law students and the civic training of lawyers. Its purpose is to build a pedagogy of community and public citizenship within an outcome-based, rotation curricular model of legal education sketched out by commonly allied scholars in prior work here in the Wisconsin Law Review and elsewhere.
Popular constitutionalism defies easy definition. Its leading theorists fail to offer a common reading of constitutional history, a common methodology, or even a common set of remedies. Given these diverse approaches, it is little wonder that one recurring complaint among popular constitutionalism’s critics is that the theory itself is incoherent
Michael M. O’Hear
Good-time programs have long been an important part of the American penal landscape. At least twenty-nine states and the federal government currently offer prison inmates early release, sometimes by many years, in return for good behavior. Written a generation ago, the leading law review article on good time presented a strong case against such programs.
In response to this important challenge, the present Essay proposes a new way to conceptualize good-time credits, specifically, as a way to recognize atonement. Drawing on communicative theories of punishment, the Essay argues that good time can be seen as congruent with (and not, as is commonly supposed, in opposition to) the basic purposes of sentencing. The Essay then proposes reforms that would help good-time programs more fully to embody the atonement model.