The distinction between speech and action lies at the foundation of any individualistic, self-expressive, or autonomy-based account of freedom of speech, and very possibly at the foundation of the very idea of free speech itself. But a close examination of the distinction reveals that the justification for treating speech differently from action, or, more precisely, for treating speech differently from non-speech action, is far less sound than is commonly supposed. In particular, neither the principle of autonomy nor the principle of freedom of thought can explain why speech or even thoughts whose consequences are equivalent to those of other actions are entitled to some special or differential immunity from state control. The absence of a sound justification for such differentiation casts doubt on both autonomy and freedom of thought justifications for a free speech principle, and may even, although less plainly, challenge the fundamental basis for any form of a free speech principle.
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
A large segment of the political left identifies as “progressive,” but what does a belief in progress entail? This short essay, written for a...
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This article argues that the fact that an action will compound a prior injustice counts as a reason against doing the action. I call this reason The...
At first blush, the debate between Stanley Fish and Ronald Dworkin that took place over the course of the 1980s and early 90s seems to have produced...
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Given that no two acts, events, situations, and legal cases are identical, precedential constraint necessarily involves determining which two...
This chapter examines the intellectual and social contexts in which the American Law Institute (ALI) has operated and how they have influenced the...
Sometimes a police officer can only stop a fleeing suspect by striking or shooting him. When is it morally justified to use such force rather than let...
This short essay considers Benjamin Zipursky’s intriguing effort to identify a tradition of “American natural law theory” that links Benjamin Cardozo...