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Free Speech and the Fight Against Terrorism

Posted: 28 Sep 2011 03:56 PM PDT

Owen Fiss, Yale University Law School, has published The World We Live In, at 83 Temple Law Review 295-308 (Winter 2011).

This Essay focuses on a threat to our constitutional order — the curtailment of freedom of speech in the name of fighting terrorism. Specifically, my subject is the Supreme Court's decision last June in Holder v. Humanitarian Law Project, which upheld the authority of Congress to criminalize political advocacy on behalf of foreign terrorist organizations. Like warrantless wiretapping, the risk of a criminal prosecution for political advocacy — for example, an utterance by an American citizen in an American forum that a foreign terrorist organization has a just cause — poses a threat to our democracy, but the danger is greater.

The risk of warrantless wiretapping inhibits speech; the risk of a criminal prosecution stops it altogether.
Download the article from SSRN at the link.

The Nature of Law

Posted: 28 Sep 2011 03:58 PM PDT

Frederick Schauer, University of Virginia School of Law, has published On Open Texture of Law as Virginia Public Law and Legal Theory Research Paper No. 2011-35. Here is the abstract.

This paper, prepared for the University of Frankfurt Symposium on Defeasibility in Epistemology, Ethics, law and Logic, addresses the claim of H.L.A. Hart and others that law is open-textured. It is in the nature of law, they say, that it necessarily possesses an open texture going beyond the open texture of the language in which legal rules are written. But when we examine the question of open texture in light of Hart's claim that the open texture of law entails the necessary defeasibility of legal rules, we discover that Hart and his followers are mistaken. Both the alleged open texture of law qua law (as opposed to the open texture occasioned by the open texture of the language used by law) and the defeasibility of legal rules are contingent features of certain legal rules in certain legal regimes, but neither are necessary components of the nature of law or the nature of rules.

Download the paper from SSRN at the link.