Tuesday, February 25, 2003|
New scholarship - takings; code and free speech
Bernard Hibbitts at 4:49 PM ET
[JURIST] SSRN is busy today. Two more new and interesting papers just posted online:
Takings, Regulations, and Natural Property Rights [abstract]
by Eric Claeys [faculty profile] of Saint Louis University School of Law [official website].
From the Abstract: "According to most legal history and takings scholarship, the whole notion of a "regulatory taking" was a contradiction in terms until Justice Oliver Wendell Holmes invented it in the 1922 Supreme Court decision Pennsylvania Coal v. Mahon. This Article calls that view into question. The Article reexamines a line of constitutional eminent-domain decisions decided in the state courts over the nineteenth century. These decisions are often read to suggest that property "regulations" could never trigger takings protections unless they physically invaded owners' land. In fact, however, they drew on Founding Era ideas about the regulation of natural property rights to generate a body of what modern lawyers would call a body of "regulatory-takings" law."
From Social Friction to Social Meaning: What Expressive Uses of Code Tell Us About Free Speech [abstract]
by David McGowan [faculty profile] of the University of Minnesota Law School [official website].
From the Abstract: "This article relates social friction to First Amendment theory and doctrine. The article defines social friction as the cost of engaging in one expressive behavior rather than another, and of moving among different types of behavior. Social friction separates social contexts and practices from one another. By separating them, it partly defines and stabilizes them, so courts may use them to relate expressive conduct to free speech values. Social friction is therefore integral to social meaning, and thus to free speech analysis. Cases involving the Internet distribution of software code exemplify the importance of social friction to free speech analysis.... Using cases such as United States v. Elcom, Ltd. and Universal City Studios, Inc., v. Corley, the article suggests ways in which courts may distinguish uses of code that implicate free speech values from those that do not. It suggests that incitement doctrine be adapted to deal with cases in which free speech interests are at stake."
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