Georgetown University Law Center

About: Georgetown University Law Center is a based out in . It is known for research contribution in the topics: Supreme court & Public health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Making Sense of Hybrid Speech: A New Model for Commercial Speech and Expressive Conduct

Abstract: Under First Amendment doctrine, many types of speech receive the most stringent level of constitutional protection, whereas other types receive no protection at all. For example, some categories of speech, such as political speech, are viewed as being at the core of the First Amendment. Restrictions on these forms of speech receive strict scrutiny and consequently are rarely upheld. Other categories of speech, such as obscenity, receive no protection under the First Amendment, and restrictions on such speech are subject only to rational basis review under the due process clause. But not all speech fits neatly within this dichotomy. Commercial speech and expressive conduct are prominent categories of speech that can receive an intermediate level of First Amendment protection. In its 1968 decision in United States v. O’Brien, the Supreme Court held that incidental restraints on expressive conduct are evaluated under a four-factor intermediate scrutiny test. Within a decade, the Court held, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., that restrictions on commercial speech are also subject to intermediate scrutiny. Four years later, in Central Hudson Gas & Electric Corp. v. Public Service Commission,7 the Court formalized its analysis of commercial speech by adopting a four-factor test that closely parallels the one created in O’Brien. Recognizing these similarities, this Note proposes a new framework for understanding commercial speech and expressive conduct by examining their different purposes and mechanisms of expression. Part I describes how commercial speech and expressive conduct are different forms of hybrid speech - each has a different mixture of protected elements that merit a heightened level of First Amendment scrutiny and of regulable elements that deserve only rational basis review. More specifically, this Part asserts that while expressive conduct generally has a protected purpose but a regulable method of expression, commercial speech typically has a regulable purpose but a protected method of expression. Part II explores how the hybrid nature of commercial speech and expressive conduct affected the development of those doctrines. This Part explains how the Court’s general expansion of the First Amendment’s scope and its increased deference to government regulation during the twentieth century came into tension in the context of hybrid speech. Part II suggests that the Court resolved this tension by adopting intermediate scrutiny for restrictions on commercial speech and incidental restraints on expressive conduct. Part III further develops the framework for analyzing commercial speech and expressive conduct by exploring their similarities with non-speech sales activities, which are defined here as actions designed to increase consumer demand that do not operate linguistically or use a conventional form of media to communicate. Focusing on the exterior designs of products as a prominent example of nonspeech sales activities, Part III demonstrates that such designs share a regulable purpose with commercial speech: to sell products by making them more attractive to consumers. This Part then illustrates how exterior product designs also share a regulable method of operation with expressive conduct, in that neither form of expression uses spoken or written words. Finally, this Part explores why product designs do not receive First Amendment protection and how this distinction clarifies the framework within which commercial speech and expressive conduct both fit. Part IV examines how the type of governmental regulation at issue affects the level of review by exploring how the framework that this Note establishes helps to explain why content-based restrictions receive strict scrutiny in the expressive conduct context but not in the commercial speech context. Finally, Part V of the Note examines why, although commercial speech and expressive conduct are both hybrid speech evaluated under similar four-part intermediate scrutiny tests, the actual levels of review applied to restrictions on these types of speech have diverged in recent years, with protection for commercial speech moving toward strict scrutiny and protection for expressive conduct drifting toward rational basis review. This Part suggests two possible reasons for this shift: the current Court’s affinity for bright-line rules rather than standards, and a perception that modern commercial speech contains more expressive content than in the past. This Part also describes problems that may result if either form of hybrid speech is removed from the realm of intermediate scrutiny.

An Interprofessional Approach to Teaching Advocacy Skills: Lessons from an Academic Medical-Legal Partnership

Abstract: Medical students and educators recognize that preparing the next generation of health leaders to address seemingly intractable problems like health disparities should include advocacy training. Opportunities to acquire the knowledge and skills needed to effectively advocate at the policy level to promote systems-, community-, and population-level solutions are a critical component of such training. But formal advocacy training programs that develop and measure such skills are scarce. Even less common are interprofessional advocacy training programs that include legal and policy experts to help medical students learn such skills. This 2016–2017 pilot study started with a legislative advocacy training program for preclinical medical students that was designed to prepare them to meet with Capitol Hill representatives about a health justice issue. The pilot assessed the impact of adding an interprofessional education (IPE) dimension to the program, which in this case involved engaging law faculty and students to help the medical students understand and navigate the federal legislative process and prepare for their meetings. Results from the pilot suggest that adding law and policy experts to advocacy-focused training programs can improve medical students’ advocacy knowledge and skills and increase their professional identity as advocates.

Divide and Confound: The Relationship Between Transparency, Public Health, and Regulatory Authority in the National Food System

Abstract: One of the great problems of the food system in the United States is its failure to understand and embody the unity of the health of the environment in which food is grown and the wholesomeness of the food itself. In law, no feature of the system better symbolizes this failure than the scattering of regulatory authority over the food supply across multiple federal agencies with multifarious missions. The fragmentation of authority induces inefficiency and ineffectiveness in pursuing a safe food supply. It also promotes opacity and dissonance in messages about the nature and quality of our food. Moving regulatory authority over food into one body rather than many would not, however, remove the most basic obstacles to a safe and transparent food supply, and it could, counterproductively, convince us that a bureaucratic reshuffling is all we need to achieve wholesome and open food.

Promise, Agreement, Contract

Abstract: It is natural to wonder about contract law’s relationship to the morality of promises and agreements. This Chapter distinguishes two ways to conceive of that relationship. First, parties’ agreement-based moral obligations might figure into the explanation of contract law — into an account of its functions or justifications. Contract law might serve to enforce parties’ first-order performance obligations, to enforce second-order remedial obligations, to support the culture of making and keeping agreements more generally, or at least to do no harm to that culture or to people’s ability to act morally. Second, contract can be understood as the legal analog to promise. Both contract and promise enable people to undertake new obligations to one another when they wish. Each is a type of normative power, the one legal, the other moral. The Chapter concludes by arguing that these two ways of thinking about contract law are not mutually exclusive. Contract law both imposes on parties to exchange agreements a legal obligation to perform for reasons independent of the parties’ possible contractual intent, and confers on them the power to undertake that legal obligation when they so intend because they so intend.