Showing papers in "William and Mary Bill of Rights Journal in 1999"

The Hatefulness of Protected Speech: A Comparison of the American and European Approaches

Abstract: In its First Amendment jurisprudence, the United States Supreme Court has construed very broadly the constitutional protection of free speech. Similarly democratic governments in Europe, however, have adopted laws restricting certain types of speech-particularly hate speech-based on the view that the human rights of oppressed groups cannot be protected fully if hate speech is permitted. In this Article, Professor Douglas-Scott examines the American approach and contrasts it with the rationale underpinning European, especially German, law. Focusing on hate speech and the denial of the Holocaust voiced largely by neo-Nazi and other right-wing groups, she argues that such speech poses problems for society that are not addressed most effectively by strict adherence tounfettered free expression.

Tench Coxe and the Right to Keep and Bear Arms, 1787-1823

Abstract: Tench Coxe, a member of the second rank of this nation's Founders and a leading proponent of the Constitution and the Bill of Rights, wrote prolifically about the right to keep and bear arms. In this Article, the authors trace Coxe's story, from his early writings in support of the Constitution, through his years of public service, to his political writings in opposition to the presidential campaigns of John Adams and John Quincy Adams. The authors note that Coxe described the Second Amendment as guaranteeing an individual right, and believed that an individual right to bear arms was necessary for self-defense and hunting, as well as for militia purposes and protection against oppression by large standing armies. The views of this important Founding Era political commentator and public servant inform the ongoing Second Amendment debate. The authors argue that Coxe's depiction of an individual right to bear arms encompassing hunting, self-defense, and the public militia power supports the "Standard Model" of the Second Amendment prevalent in the legal literature. This Article also discusses Coxe's important role as an economic scholar in early America, and in the creation of the protectionist system of the early Republic, as both an journalistic advocate and as an executive branch official. One of his executive branch positions involved heading the federal government program to give guns to militiamen who could not afford their own. Available: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1421&context=wmborj Available at SSRN: http://ssrn.com/abstract=1272675 Keywords: Tench Coxe, Second Amendment, Right to Keep and Bear Arms, John Adams, James Madison, Thomas Jefferson, George Washington Language: en

Faragher, Ellerth, and the Federal Law of Vicarious Liability for Sexual Harassment by Supervisors: Something Lost, Something Gained, and Something to Guard Against

Abstract: In this article, the author posits that the Supreme Court's articulation of a new standard for vicarious liability under Title VII for sexual harassment by supervisors in Faragher and Ellerth represents a significant severing of ties between state tort law and federal sexual harassment law. The article discusses the influence of sexual harassment law in shaping some state tort law theories of recovery and the influence of state tort respondeat superior analysis on vicarious liability analysis under federal sexual harassment law. The article further suggests that the borrowing of state tort respondeat superior concepts for sexual harassment vicarious liability analysis may have influenced courts to apply the respondeat superior analysis to tort claims in ways they would not have had it not been for the relationship between the two, with courts reading course and scope of employment expansively. Written from the perspective of a torts and employment discrimination teacher, the article expresses some regret over the severing of the tie. It acknowledges, however, that given the different policies underlying respondeat superior liability for torts and vicarious liability for sexual harassment, the creation of a federal common law of vicarious liability in Faragher and Ellerth was a good result; vicarious liability analyses are not "one size fits all" items. The article concludes by warning that courts applying respondeat superior analysis to tort claims should not be influenced by the results produced by the new vicarious liability analysis in sexual harassment cases.