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Upcoming UCLA Con Law Conference, & My Paper on Prisoner/Student/Employee 1st Amdmt Claims

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3 Responses

  1. Joe says:

    How real is the distinction between institution-specific doctrines and unified doctrines? As you note in Part V, unified doctrines are inherently institution-specific because what is compelling in one place may not be compelling in another. So what difference does it make whether the institutional aspect of the case is taken into account on the front end or the back end?

    This sounds much like the tort debate over the necessity of a duty for negligence liability. Who cares about where you put the analysis under duty, under proximate cause, or under a separate public policy factor like Wisconsin, if the result is the same?

  2. Scott Moss says:

    That’s a fair point, Joe: even “unified” doctrines (eg “strict scrutiny all around!”) considers contextual differences. My argument is that in the current “institution-specific” approach, courts are too quick to buy the argument, “prisons or schools are really special and different from other institutions in society, so we judges should defer to them when they say they need to restrict speech.” I don’t buy that any one institution is so unique, and I think a unified heightened scrutiny approach (whether strict or intermediate scru) would minimize the risk of courts getting fooled into believing any one institution is especially deserving of “deference.” As the race equal prot’n cases show, courts apply some deference to prisons and schools, but ultimately evaluate those institutions just like they evaluate all other kinds of institutions (eg private employers) in cases they adjudicate.

  3. Joe says:

    Understood, Scott, and I think your paper makes a good theoretical argument for why institution-specific doctrines MIGHT exaggerate the importance of institutional contexts. But your paper would be more persuasive, and I think ultimately more useful, if you included more examples of where this phenomenon actually occurs.