Opening remarks and introduction to the 12th annual Tulsa Law Review\u27s Legal Scholarship Sympo... more Opening remarks and introduction to the 12th annual Tulsa Law Review\u27s Legal Scholarship Symposium
On June 23, 2011, the Supreme Court decided an important case that has been largely overlooked-So... more On June 23, 2011, the Supreme Court decided an important case that has been largely overlooked-Sorrell v. IMS Health, Inc. 1 In Sorrell the Court struck down a Vermont law prohibiting the sale for marketing purposes of physicians' prescription records without their permission on the grounds that the law was not "content neutral." The majority found that because the Vermont statute singled out marketing for special treatment, the law constituted a form of "viewpoint discrimination." The First Amendment, Justice Kennedy wrote in the majority opinion, requires us to tolerate speech we may not like as a "necessary cost of freedom." This reading of "content neutrality" makes the commercial speech doctrine incoherent. By definition the doctrine only applies to speech which is "commercial"-that is, speech distinguished by its commercial content. After Sorrell any regulation of marketing could potentially fail the content neutrality test. Moreover, by casting the marketer as a "disfavored" speaker by virtue of regulation, Sorrell turns the rationale for the commercial speech doctrine upside down. The doctrine was not created to protect commercial speakers. It was created to carve out a limited area of First Amendment protection for truthful commercial speech in order to protect consumers' right to receive accurate product information and to thereby promote the public interest in a properly functioning market. There
The commercial speech doctrine, the doctrine establishing a subcategory of protected speech under... more The commercial speech doctrine, the doctrine establishing a subcategory of protected speech under the First Amendment, has been under increased fire, most prominently in 2003 with Nike v. Kasky, but also in other cases around the country covering a variety of contexts. A key distinguishing attribute of the commercial speech doctrine is that it permits the government to regulate the speech that it covers for its truth. This is precisely what the government may not regulate in the area of political and expressive speech. Many critics would like to see the commercial speech doctrine done away with altogether. They argue commercial speech should be treated like political and expressive speech under the First Amendment. Professor Piety has argued elsewhere that subjecting commercial speech to the same strict scrutiny as political and expressive speech would have far reaching negative consequences. In this Article, Professor Piety addresses a narrower concern: the argument that (assuming efforts to eliminate it altogether fail) the commercial speech doctrine's application should be expressly limited to "traditional advertising," excluding corporate speech in the form of public relations. She proposes that this argument is misplaced because the purposes articulated by the Supreme Court in establishing the commercial speech doctrine would be better served by applying it to all marketing-related speech, including public relations.
Corporate Law: Corporate & Takeover Law eJournal, 2015
One of the most controversial aspects of Citizens United is the Court's treatment of corporat... more One of the most controversial aspects of Citizens United is the Court's treatment of corporate personhood. Many members of the public feel that the Court held that corporations are "just like people" and they feel this wrong. Yet many scholars argue that the concern for corporate personhood is misplaced. This article argues that corporate personhood is indeed an important part of the rhetorical strategy to suggest that making distinctions between corporations and persons, or between different types of corporations, is discriminatory and ought to be forbidden on that ground. Moreover, this rhetorical strategy allows the Court to elide more substantive justifications for the extension of fundamental rights to ordinary business corporations. The justifications that have been offered -- corporate rights are merely a "pass through" to recognize the rights of the people who make up the corporation or corporate speech is protected for its value to the public -- are ...
fifty thousand dollars.' In accordance with the magistrate's findings, 6 American Bankers issued ... more fifty thousand dollars.' In accordance with the magistrate's findings, 6 American Bankers issued Alvarez the fifty thousand dollar bond in return for a contingent promissory note from him and a mortgage for the same amount on his home. 7 Approximately six months after Alvarez's arrest, and before his scheduled trial, the government instituted separate, but parallel, civil forfeiture proceedings against Alvarez's home,' pursuant to 21 U.S.C. § 881(a)(7) (1988), 9 the same home that the magistrate had determined Alvarez could offer as security for his bond, and in which American Bankers had taken its security interest. Under the statute, 5. Id. 6. "The Magistrate set a $50,000 corporate surety bond. She also determined that Alvarez had about $50,000 equity in his home, and that a hearing pursuant to United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966), was unnecessary." Alvarez, 683 F. Supp. at 785. This fact is significant because the purpose of a Nebbia hearing is to determine whether or not the source of the defendant's bond suggests that he has sufficient interest in the security that the risk of flight is actually decreased by its posting. Nebbia, 357 F.2d at 304. The establishment of ownership and the threat of losing one's home meets this level of reliability. American Bankers tried to argue that the government was equitably estopped from bringing the forfeiture action because American Bankers had relied on the magistrate's finding that the house would be acceptable security for the bond and further, that an Assistant United States Attorney had "affirmatively assured it that Alvarez' house would not be subject to forfeiture." Alvarez, 683 F. Supp. at 789. The court rejected these arguments, stating that, at the outset, "[e]quitable estoppel cannot be asserted against the United States regarding actions it takes in its sovereign capacity." Id. at 789-90. Furthermore, it found that "[e]ven if such an assurance was made, this conversation took place after the United States had filed the instant forfeiture action." Id. at 790. Neither of these responses adequately addresses the question of whether or not American Bankers' reliance on the magistrate's finding was reasonable in the absence of any collusion between American Bankers and Alvarez. The invocation of sovereign immunity does not provide a justification for the government's actions. Rather, it represents the government taking the position that it declines to justify its actions because it does not have to do so. 7. Alvarez, 683 F. Supp. at 790. 8. Id. at 785. 9. Section 881(a)(7) states: (a) The following shall be subject to forfeiture to the United States and no property right shall exist in them: .... (7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of a violation of this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. 21 U.S.C. § 881(a)(7) (1988) (emphasis added) (The clause following the italicized portion of the statute is the "innocent owner" exception to the provision.). The Comprehensive Forfeiture Act of 1984, Pub. L. No. 98-743, 98 Stat. 1837, 2040-57, added this section, which consolidated the civil and criminal forfeiture statutes for drug-related violations and significantly expanded the categories of forfeitable property. 18. It may be that the court means to advance the government's goal by making it impossible for people accused of drug violations to post bond. If, as the court wiote, a "reasonable" bonding company "would have fully apprised itself of the allegations against Alvarez," id. presumably leading it to decline to issue the bond, the court is suggesting that any person charged with a drug violation should not be able to obtain bond from a "reasonable" bonding company. That would mean that persons, otherwise able to obtain a bond, would be punished merely for being charged with drug violations. Such a practice smacks of a determination of guilt before conviction. The government has a legitimate interest in seeing that criminals do not use ill-gotten gains to post bond and then fleas Alvarez did. That interest, however, is in direct conflict with the accused's constitutional rights. This case poses precisely the same dilemma presented by the relation-back provision of the criminal forfeiture statutes which serves to deprive those accused under these statutes of their counsel of choice. See Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646, 2670 n.7 (1989) (Blackmun, J., dissenting) (describing stripping of economic power prior to conviction as "constitutionally suspect"); Winick, Forfeiture of Attorneys' Fees Under RICO and CCE and the Right to Counsel of Choice: The Constitutional Dilemma and How to Avoid It, 43 U.
In this essay submitted to the Loyola Los Angeles Law Review in honor of Professor Steve Shiffrin... more In this essay submitted to the Loyola Los Angeles Law Review in honor of Professor Steve Shiffrin, Professor Piety discusses the proposals for more First Amendment protection for commercial speech in light of one of the persistent problems in the commercial speech area: preventing fraud. Decades ago prominent economists initiated a deregulatory revolution in part premised on the argument that this sort of hands off approach was thought best in the marketplace of ideas, so why not the market itself? This argument from the outset dismissed too quickly the reality that in fact only a fairly limited area of speech received this heightened degree of protection. But in recent years many have taken the parallelism further and have argued that the heightened protection given to those limited areas of speech should also be extended to commercial speech. Extending the metaphor of the market, Professor Piety argues that there is sufficient evidence of market failure with respect to commercial ...
Although the Nike v. Kasky case was widely reported to involve Nike's attempt to "defend... more Although the Nike v. Kasky case was widely reported to involve Nike's attempt to "defend" itself against its critics, in this article I demonstrate that according to textbook descriptions of the practice Nike was actually engaged in a form of marketing – reactive marketing PR. This marketing was designed to improve sales of its products in the wake of criticism of its labor practices and consumer backlash in response to those criticisms. Kasky claimed in his lawsuit that many of the statements Nike's representatives made in its defense were knowingly and intentionally false and he charged that they constituted fraud. The pleadings in the case reveal (despite widespread reportage to the contrary) that Nike hoped to raise a First Amendment defense to fraud.
INTRODUCTIONIt is commonplace to hear legal scholarship derided as out of touch, too theoretical,... more INTRODUCTIONIt is commonplace to hear legal scholarship derided as out of touch, too theoretical, low quality, unread, and of little practical impact.1 Chief Justice John Roberts reportedly asserted that he seldom reads or relies on law review articles.2Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar.3Judge Harry Edwards is likewise famously critical of legal scholarship. He has written a number of law review articles criticizing legal scholarship.4 In these articles, Judge Edwards claims that legal scholarship does not address the concerns of the profession because it has "little relevance to concrete issues, or addresses concrete issues in a wholly theoretical manner."5 Perhaps most curiously, this critique is one that ac...
Ronald Collins: It's a delight to be back here in the Pacific Northwest where I once had the ... more Ronald Collins: It's a delight to be back here in the Pacific Northwest where I once had the honor to teach. Thank you, Kellye Testy and Dana Gold, for including me in this splendid conference. And, of course, a bow to my colleague of many years, Professor David Skover. Today's discussion will be about a rather famous case-actually, a non-case, Nike v. Kasky. 1 Is there anybody in the room who didn't file an amicus brief in Nike? There were so many people who filed on this or that side in the case. All three of our panelists today filed amicus briefs. I think Martin Redish filed one as well. And Erik Jaffe, I think you also filed an amicus brief in Nike. Question: When you think about a case like Nike, where is the conservative/liberal divide? Laurence Tribe, he's liberal. So why is he representing Nike in the United States Supreme Court? And Erwin Chemerinsky, the great defender of the First Amendment, why did he oppose Nike's First Amendment rights? Where does ...
This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Dig... more This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Recommended Citation Tamara R. Piety, Tribute to the Scholarship of Frank Michelman: Meditations on Mentoring and the Scholar as Mentor, 39 Tulsa L. Rev. 583 (2013).
Utilizing Dove's infamous "Onslaught" viral ad, this Article explores the ways in w... more Utilizing Dove's infamous "Onslaught" viral ad, this Article explores the ways in which commercial speech constructs images of and attitudes toward women that interfere with full equality for women. Advertising and marketing contribute to creating a social reality in which it is taken for granted that women must spend a great deal of time on appearance and that appearance is of critical importance to life success. As is typical for much advertising, it does this by stimulating anxiety. Such anxiety contributes to low self-esteem, lowered ambitions and stereotype threat reactions, as well as to biased reactions on the part of others. Harms such as these are often justified on the basis of the right of the speaker to participate in public debate or in the public's right to receive advertising "information." The Dove ad itself, however, illustrates the problem in locating a "speaker" for commercial speech and raises questions about the nature of th...
When I saw that Martin Redish 2 and Burt Neuborne 3 had written reviews of my book, Brandishing t... more When I saw that Martin Redish 2 and Burt Neuborne 3 had written reviews of my book, Brandishing the First Amendment, 4 for the Texas Law Review I was both pleased and apprehensive. The apprehension is easy to understand. As Professor Larry Kramer has observed, "Having one's work closely criticized is never pleasant: hugely complimentary, and oh-so-much better than having it ignored, but still difficult and painful." 5 Thus, I approached both reviews with some trepidation. On the one hand, it was a compliment to be reviewed in such a prominent journal. On the other, I had little reason to
This paper compares the psychology of addiction and the psychology of advertising and argues that... more This paper compares the psychology of addiction and the psychology of advertising and argues that parallels suggest that some regulation of advertising may be justified in the interest of public health.
fifty thousand dollars.' In accordance with the magistrate's findings, 6 American Bankers issued ... more fifty thousand dollars.' In accordance with the magistrate's findings, 6 American Bankers issued Alvarez the fifty thousand dollar bond in return for a contingent promissory note from him and a mortgage for the same amount on his home. 7 Approximately six months after Alvarez's arrest, and before his scheduled trial, the government instituted separate, but parallel, civil forfeiture proceedings against Alvarez's home,' pursuant to 21 U.S.C. § 881(a)(7) (1988), 9 the same home that the magistrate had determined Alvarez could offer as security for his bond, and in which American Bankers had taken its security interest. Under the statute, 5. Id. 6. "The Magistrate set a $50,000 corporate surety bond. She also determined that Alvarez had about $50,000 equity in his home, and that a hearing pursuant to United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966), was unnecessary." Alvarez, 683 F. Supp. at 785. This fact is significant because the purpose of a Nebbia hearing is to determine whether or not the source of the defendant's bond suggests that he has sufficient interest in the security that the risk of flight is actually decreased by its posting. Nebbia, 357 F.2d at 304. The establishment of ownership and the threat of losing one's home meets this level of reliability. American Bankers tried to argue that the government was equitably estopped from bringing the forfeiture action because American Bankers had relied on the magistrate's finding that the house would be acceptable security for the bond and further, that an Assistant United States Attorney had "affirmatively assured it that Alvarez' house would not be subject to forfeiture." Alvarez, 683 F. Supp. at 789. The court rejected these arguments, stating that, at the outset, "[e]quitable estoppel cannot be asserted against the United States regarding actions it takes in its sovereign capacity." Id. at 789-90. Furthermore, it found that "[e]ven if such an assurance was made, this conversation took place after the United States had filed the instant forfeiture action." Id. at 790. Neither of these responses adequately addresses the question of whether or not American Bankers' reliance on the magistrate's finding was reasonable in the absence of any collusion between American Bankers and Alvarez. The invocation of sovereign immunity does not provide a justification for the government's actions. Rather, it represents the government taking the position that it declines to justify its actions because it does not have to do so. 7. Alvarez, 683 F. Supp. at 790. 8. Id. at 785. 9. Section 881(a)(7) states: (a) The following shall be subject to forfeiture to the United States and no property right shall exist in them: .... (7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of a violation of this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. 21 U.S.C. § 881(a)(7) (1988) (emphasis added) (The clause following the italicized portion of the statute is the "innocent owner" exception to the provision.). The Comprehensive Forfeiture Act of 1984, Pub. L. No. 98-743, 98 Stat. 1837, 2040-57, added this section, which consolidated the civil and criminal forfeiture statutes for drug-related violations and significantly expanded the categories of forfeitable property. 18. It may be that the court means to advance the government's goal by making it impossible for people accused of drug violations to post bond. If, as the court wiote, a "reasonable" bonding company "would have fully apprised itself of the allegations against Alvarez," id. presumably leading it to decline to issue the bond, the court is suggesting that any person charged with a drug violation should not be able to obtain bond from a "reasonable" bonding company. That would mean that persons, otherwise able to obtain a bond, would be punished merely for being charged with drug violations. Such a practice smacks of a determination of guilt before conviction. The government has a legitimate interest in seeing that criminals do not use ill-gotten gains to post bond and then fleas Alvarez did. That interest, however, is in direct conflict with the accused's constitutional rights. This case poses precisely the same dilemma presented by the relation-back provision of the criminal forfeiture statutes which serves to deprive those accused under these statutes of their counsel of choice. See Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646, 2670 n.7 (1989) (Blackmun, J., dissenting) (describing stripping of economic power prior to conviction as "constitutionally suspect"); Winick, Forfeiture of Attorneys' Fees Under RICO and CCE and the Right to Counsel of Choice: The Constitutional Dilemma and How to Avoid It, 43 U.
for their readings, suggestions, and encouraging words; and to Pierre Schlag for his generosity a... more for their readings, suggestions, and encouraging words; and to Pierre Schlag for his generosity and sense of humor. As usual, any shortcomings that remain in this piece are wholly mine. 1. THE MEDITATIONS OF MARCUS AURELIUS 77-78 (adapted from translation by George Long 1993) [hereinafter AURELIUS]. I did think that perhaps I should use a more "scholarly" source for this quote than a pocket meditation book. I sought out another source but found it unsatisfactory as it lacked the lyricism of this version. Judge for yourself: "At day's first light have in readiness, against the disinclination to leave your bed, the thought that 'I am rising for the work of man."' MARCUS AURELIUS, MEDITATIONS 77 (Maxwell Staniforth trans., 1996). 2. TALKING HEADS, Burning Down the House, on SPEAKING IN TONGUES (WEA/Warner Bros. 1983). 3. PIERRE SCHLAG, THE ENCHANTMENT OF REASON (1998) [hereinafter ENCHANTMENT].. When I say "such works," I mean law review articles.
Preservation of freedom of expression is properly understood as one of the bulwarks of our consti... more Preservation of freedom of expression is properly understood as one of the bulwarks of our constitutional liberty. Yet the prohibition on government regulation of expression has never been considered absolute. One area of less than absolute protection is found in the commercial speech doctrine. Government may regulate commercial speech for its truth where such regulation advances a substantial governmental interest which is advanced by the regulation and there is a good fit between regulation's aims and the regulation itself. Some argue that even this intermediate level of scrutiny is too much and that commercial speech should be fully protected. Alternatively, proponents of a more protective standard for commercial speech would have the doctrine's application limited to traditional advertising. In this article Prof. Piety argues that both of these arguments should be rejected in light of experience and of the interests the First Amendment is commonly supposed to further. Si...
It is probably unique in the first year curriculum, but every year I make my civil procedure stud... more It is probably unique in the first year curriculum, but every year I make my civil procedure students read chapter 89 entitled Fast-Fish and Loose-Fish from Herman Melville’s Moby-Dick. And it is invariably a mystery to my students why I do so. They always wonder (even if they don’t ask), “What has this got to do with the law?” “What am I supposed to take from this?” And, though every year I endeavor to explain it to them, I rather suspect that for many the lesson is one that takes some time to sink in – if indeed it is not entirely lost. For they are first-year students, and thus still laboring under all sorts of delusions about what the law is, what will we teach them and what they are expected to know. Still, I always start the semester of civil procedure with this reading. I believe that no matter how mystifying it may be to the vast majority of them, there is virtually no better vehicle from which to launch a discussion of and to begin thinking about the knotty problem that is ...
Opening remarks and introduction to the 12th annual Tulsa Law Review\u27s Legal Scholarship Sympo... more Opening remarks and introduction to the 12th annual Tulsa Law Review\u27s Legal Scholarship Symposium
On June 23, 2011, the Supreme Court decided an important case that has been largely overlooked-So... more On June 23, 2011, the Supreme Court decided an important case that has been largely overlooked-Sorrell v. IMS Health, Inc. 1 In Sorrell the Court struck down a Vermont law prohibiting the sale for marketing purposes of physicians' prescription records without their permission on the grounds that the law was not "content neutral." The majority found that because the Vermont statute singled out marketing for special treatment, the law constituted a form of "viewpoint discrimination." The First Amendment, Justice Kennedy wrote in the majority opinion, requires us to tolerate speech we may not like as a "necessary cost of freedom." This reading of "content neutrality" makes the commercial speech doctrine incoherent. By definition the doctrine only applies to speech which is "commercial"-that is, speech distinguished by its commercial content. After Sorrell any regulation of marketing could potentially fail the content neutrality test. Moreover, by casting the marketer as a "disfavored" speaker by virtue of regulation, Sorrell turns the rationale for the commercial speech doctrine upside down. The doctrine was not created to protect commercial speakers. It was created to carve out a limited area of First Amendment protection for truthful commercial speech in order to protect consumers' right to receive accurate product information and to thereby promote the public interest in a properly functioning market. There
The commercial speech doctrine, the doctrine establishing a subcategory of protected speech under... more The commercial speech doctrine, the doctrine establishing a subcategory of protected speech under the First Amendment, has been under increased fire, most prominently in 2003 with Nike v. Kasky, but also in other cases around the country covering a variety of contexts. A key distinguishing attribute of the commercial speech doctrine is that it permits the government to regulate the speech that it covers for its truth. This is precisely what the government may not regulate in the area of political and expressive speech. Many critics would like to see the commercial speech doctrine done away with altogether. They argue commercial speech should be treated like political and expressive speech under the First Amendment. Professor Piety has argued elsewhere that subjecting commercial speech to the same strict scrutiny as political and expressive speech would have far reaching negative consequences. In this Article, Professor Piety addresses a narrower concern: the argument that (assuming efforts to eliminate it altogether fail) the commercial speech doctrine's application should be expressly limited to "traditional advertising," excluding corporate speech in the form of public relations. She proposes that this argument is misplaced because the purposes articulated by the Supreme Court in establishing the commercial speech doctrine would be better served by applying it to all marketing-related speech, including public relations.
Corporate Law: Corporate & Takeover Law eJournal, 2015
One of the most controversial aspects of Citizens United is the Court's treatment of corporat... more One of the most controversial aspects of Citizens United is the Court's treatment of corporate personhood. Many members of the public feel that the Court held that corporations are "just like people" and they feel this wrong. Yet many scholars argue that the concern for corporate personhood is misplaced. This article argues that corporate personhood is indeed an important part of the rhetorical strategy to suggest that making distinctions between corporations and persons, or between different types of corporations, is discriminatory and ought to be forbidden on that ground. Moreover, this rhetorical strategy allows the Court to elide more substantive justifications for the extension of fundamental rights to ordinary business corporations. The justifications that have been offered -- corporate rights are merely a "pass through" to recognize the rights of the people who make up the corporation or corporate speech is protected for its value to the public -- are ...
fifty thousand dollars.' In accordance with the magistrate's findings, 6 American Bankers issued ... more fifty thousand dollars.' In accordance with the magistrate's findings, 6 American Bankers issued Alvarez the fifty thousand dollar bond in return for a contingent promissory note from him and a mortgage for the same amount on his home. 7 Approximately six months after Alvarez's arrest, and before his scheduled trial, the government instituted separate, but parallel, civil forfeiture proceedings against Alvarez's home,' pursuant to 21 U.S.C. § 881(a)(7) (1988), 9 the same home that the magistrate had determined Alvarez could offer as security for his bond, and in which American Bankers had taken its security interest. Under the statute, 5. Id. 6. "The Magistrate set a $50,000 corporate surety bond. She also determined that Alvarez had about $50,000 equity in his home, and that a hearing pursuant to United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966), was unnecessary." Alvarez, 683 F. Supp. at 785. This fact is significant because the purpose of a Nebbia hearing is to determine whether or not the source of the defendant's bond suggests that he has sufficient interest in the security that the risk of flight is actually decreased by its posting. Nebbia, 357 F.2d at 304. The establishment of ownership and the threat of losing one's home meets this level of reliability. American Bankers tried to argue that the government was equitably estopped from bringing the forfeiture action because American Bankers had relied on the magistrate's finding that the house would be acceptable security for the bond and further, that an Assistant United States Attorney had "affirmatively assured it that Alvarez' house would not be subject to forfeiture." Alvarez, 683 F. Supp. at 789. The court rejected these arguments, stating that, at the outset, "[e]quitable estoppel cannot be asserted against the United States regarding actions it takes in its sovereign capacity." Id. at 789-90. Furthermore, it found that "[e]ven if such an assurance was made, this conversation took place after the United States had filed the instant forfeiture action." Id. at 790. Neither of these responses adequately addresses the question of whether or not American Bankers' reliance on the magistrate's finding was reasonable in the absence of any collusion between American Bankers and Alvarez. The invocation of sovereign immunity does not provide a justification for the government's actions. Rather, it represents the government taking the position that it declines to justify its actions because it does not have to do so. 7. Alvarez, 683 F. Supp. at 790. 8. Id. at 785. 9. Section 881(a)(7) states: (a) The following shall be subject to forfeiture to the United States and no property right shall exist in them: .... (7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of a violation of this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. 21 U.S.C. § 881(a)(7) (1988) (emphasis added) (The clause following the italicized portion of the statute is the "innocent owner" exception to the provision.). The Comprehensive Forfeiture Act of 1984, Pub. L. No. 98-743, 98 Stat. 1837, 2040-57, added this section, which consolidated the civil and criminal forfeiture statutes for drug-related violations and significantly expanded the categories of forfeitable property. 18. It may be that the court means to advance the government's goal by making it impossible for people accused of drug violations to post bond. If, as the court wiote, a "reasonable" bonding company "would have fully apprised itself of the allegations against Alvarez," id. presumably leading it to decline to issue the bond, the court is suggesting that any person charged with a drug violation should not be able to obtain bond from a "reasonable" bonding company. That would mean that persons, otherwise able to obtain a bond, would be punished merely for being charged with drug violations. Such a practice smacks of a determination of guilt before conviction. The government has a legitimate interest in seeing that criminals do not use ill-gotten gains to post bond and then fleas Alvarez did. That interest, however, is in direct conflict with the accused's constitutional rights. This case poses precisely the same dilemma presented by the relation-back provision of the criminal forfeiture statutes which serves to deprive those accused under these statutes of their counsel of choice. See Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646, 2670 n.7 (1989) (Blackmun, J., dissenting) (describing stripping of economic power prior to conviction as "constitutionally suspect"); Winick, Forfeiture of Attorneys' Fees Under RICO and CCE and the Right to Counsel of Choice: The Constitutional Dilemma and How to Avoid It, 43 U.
In this essay submitted to the Loyola Los Angeles Law Review in honor of Professor Steve Shiffrin... more In this essay submitted to the Loyola Los Angeles Law Review in honor of Professor Steve Shiffrin, Professor Piety discusses the proposals for more First Amendment protection for commercial speech in light of one of the persistent problems in the commercial speech area: preventing fraud. Decades ago prominent economists initiated a deregulatory revolution in part premised on the argument that this sort of hands off approach was thought best in the marketplace of ideas, so why not the market itself? This argument from the outset dismissed too quickly the reality that in fact only a fairly limited area of speech received this heightened degree of protection. But in recent years many have taken the parallelism further and have argued that the heightened protection given to those limited areas of speech should also be extended to commercial speech. Extending the metaphor of the market, Professor Piety argues that there is sufficient evidence of market failure with respect to commercial ...
Although the Nike v. Kasky case was widely reported to involve Nike's attempt to "defend... more Although the Nike v. Kasky case was widely reported to involve Nike's attempt to "defend" itself against its critics, in this article I demonstrate that according to textbook descriptions of the practice Nike was actually engaged in a form of marketing – reactive marketing PR. This marketing was designed to improve sales of its products in the wake of criticism of its labor practices and consumer backlash in response to those criticisms. Kasky claimed in his lawsuit that many of the statements Nike's representatives made in its defense were knowingly and intentionally false and he charged that they constituted fraud. The pleadings in the case reveal (despite widespread reportage to the contrary) that Nike hoped to raise a First Amendment defense to fraud.
INTRODUCTIONIt is commonplace to hear legal scholarship derided as out of touch, too theoretical,... more INTRODUCTIONIt is commonplace to hear legal scholarship derided as out of touch, too theoretical, low quality, unread, and of little practical impact.1 Chief Justice John Roberts reportedly asserted that he seldom reads or relies on law review articles.2Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar.3Judge Harry Edwards is likewise famously critical of legal scholarship. He has written a number of law review articles criticizing legal scholarship.4 In these articles, Judge Edwards claims that legal scholarship does not address the concerns of the profession because it has "little relevance to concrete issues, or addresses concrete issues in a wholly theoretical manner."5 Perhaps most curiously, this critique is one that ac...
Ronald Collins: It's a delight to be back here in the Pacific Northwest where I once had the ... more Ronald Collins: It's a delight to be back here in the Pacific Northwest where I once had the honor to teach. Thank you, Kellye Testy and Dana Gold, for including me in this splendid conference. And, of course, a bow to my colleague of many years, Professor David Skover. Today's discussion will be about a rather famous case-actually, a non-case, Nike v. Kasky. 1 Is there anybody in the room who didn't file an amicus brief in Nike? There were so many people who filed on this or that side in the case. All three of our panelists today filed amicus briefs. I think Martin Redish filed one as well. And Erik Jaffe, I think you also filed an amicus brief in Nike. Question: When you think about a case like Nike, where is the conservative/liberal divide? Laurence Tribe, he's liberal. So why is he representing Nike in the United States Supreme Court? And Erwin Chemerinsky, the great defender of the First Amendment, why did he oppose Nike's First Amendment rights? Where does ...
This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Dig... more This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Recommended Citation Tamara R. Piety, Tribute to the Scholarship of Frank Michelman: Meditations on Mentoring and the Scholar as Mentor, 39 Tulsa L. Rev. 583 (2013).
Utilizing Dove's infamous "Onslaught" viral ad, this Article explores the ways in w... more Utilizing Dove's infamous "Onslaught" viral ad, this Article explores the ways in which commercial speech constructs images of and attitudes toward women that interfere with full equality for women. Advertising and marketing contribute to creating a social reality in which it is taken for granted that women must spend a great deal of time on appearance and that appearance is of critical importance to life success. As is typical for much advertising, it does this by stimulating anxiety. Such anxiety contributes to low self-esteem, lowered ambitions and stereotype threat reactions, as well as to biased reactions on the part of others. Harms such as these are often justified on the basis of the right of the speaker to participate in public debate or in the public's right to receive advertising "information." The Dove ad itself, however, illustrates the problem in locating a "speaker" for commercial speech and raises questions about the nature of th...
When I saw that Martin Redish 2 and Burt Neuborne 3 had written reviews of my book, Brandishing t... more When I saw that Martin Redish 2 and Burt Neuborne 3 had written reviews of my book, Brandishing the First Amendment, 4 for the Texas Law Review I was both pleased and apprehensive. The apprehension is easy to understand. As Professor Larry Kramer has observed, "Having one's work closely criticized is never pleasant: hugely complimentary, and oh-so-much better than having it ignored, but still difficult and painful." 5 Thus, I approached both reviews with some trepidation. On the one hand, it was a compliment to be reviewed in such a prominent journal. On the other, I had little reason to
This paper compares the psychology of addiction and the psychology of advertising and argues that... more This paper compares the psychology of addiction and the psychology of advertising and argues that parallels suggest that some regulation of advertising may be justified in the interest of public health.
fifty thousand dollars.' In accordance with the magistrate's findings, 6 American Bankers issued ... more fifty thousand dollars.' In accordance with the magistrate's findings, 6 American Bankers issued Alvarez the fifty thousand dollar bond in return for a contingent promissory note from him and a mortgage for the same amount on his home. 7 Approximately six months after Alvarez's arrest, and before his scheduled trial, the government instituted separate, but parallel, civil forfeiture proceedings against Alvarez's home,' pursuant to 21 U.S.C. § 881(a)(7) (1988), 9 the same home that the magistrate had determined Alvarez could offer as security for his bond, and in which American Bankers had taken its security interest. Under the statute, 5. Id. 6. "The Magistrate set a $50,000 corporate surety bond. She also determined that Alvarez had about $50,000 equity in his home, and that a hearing pursuant to United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966), was unnecessary." Alvarez, 683 F. Supp. at 785. This fact is significant because the purpose of a Nebbia hearing is to determine whether or not the source of the defendant's bond suggests that he has sufficient interest in the security that the risk of flight is actually decreased by its posting. Nebbia, 357 F.2d at 304. The establishment of ownership and the threat of losing one's home meets this level of reliability. American Bankers tried to argue that the government was equitably estopped from bringing the forfeiture action because American Bankers had relied on the magistrate's finding that the house would be acceptable security for the bond and further, that an Assistant United States Attorney had "affirmatively assured it that Alvarez' house would not be subject to forfeiture." Alvarez, 683 F. Supp. at 789. The court rejected these arguments, stating that, at the outset, "[e]quitable estoppel cannot be asserted against the United States regarding actions it takes in its sovereign capacity." Id. at 789-90. Furthermore, it found that "[e]ven if such an assurance was made, this conversation took place after the United States had filed the instant forfeiture action." Id. at 790. Neither of these responses adequately addresses the question of whether or not American Bankers' reliance on the magistrate's finding was reasonable in the absence of any collusion between American Bankers and Alvarez. The invocation of sovereign immunity does not provide a justification for the government's actions. Rather, it represents the government taking the position that it declines to justify its actions because it does not have to do so. 7. Alvarez, 683 F. Supp. at 790. 8. Id. at 785. 9. Section 881(a)(7) states: (a) The following shall be subject to forfeiture to the United States and no property right shall exist in them: .... (7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of a violation of this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. 21 U.S.C. § 881(a)(7) (1988) (emphasis added) (The clause following the italicized portion of the statute is the "innocent owner" exception to the provision.). The Comprehensive Forfeiture Act of 1984, Pub. L. No. 98-743, 98 Stat. 1837, 2040-57, added this section, which consolidated the civil and criminal forfeiture statutes for drug-related violations and significantly expanded the categories of forfeitable property. 18. It may be that the court means to advance the government's goal by making it impossible for people accused of drug violations to post bond. If, as the court wiote, a "reasonable" bonding company "would have fully apprised itself of the allegations against Alvarez," id. presumably leading it to decline to issue the bond, the court is suggesting that any person charged with a drug violation should not be able to obtain bond from a "reasonable" bonding company. That would mean that persons, otherwise able to obtain a bond, would be punished merely for being charged with drug violations. Such a practice smacks of a determination of guilt before conviction. The government has a legitimate interest in seeing that criminals do not use ill-gotten gains to post bond and then fleas Alvarez did. That interest, however, is in direct conflict with the accused's constitutional rights. This case poses precisely the same dilemma presented by the relation-back provision of the criminal forfeiture statutes which serves to deprive those accused under these statutes of their counsel of choice. See Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646, 2670 n.7 (1989) (Blackmun, J., dissenting) (describing stripping of economic power prior to conviction as "constitutionally suspect"); Winick, Forfeiture of Attorneys' Fees Under RICO and CCE and the Right to Counsel of Choice: The Constitutional Dilemma and How to Avoid It, 43 U.
for their readings, suggestions, and encouraging words; and to Pierre Schlag for his generosity a... more for their readings, suggestions, and encouraging words; and to Pierre Schlag for his generosity and sense of humor. As usual, any shortcomings that remain in this piece are wholly mine. 1. THE MEDITATIONS OF MARCUS AURELIUS 77-78 (adapted from translation by George Long 1993) [hereinafter AURELIUS]. I did think that perhaps I should use a more "scholarly" source for this quote than a pocket meditation book. I sought out another source but found it unsatisfactory as it lacked the lyricism of this version. Judge for yourself: "At day's first light have in readiness, against the disinclination to leave your bed, the thought that 'I am rising for the work of man."' MARCUS AURELIUS, MEDITATIONS 77 (Maxwell Staniforth trans., 1996). 2. TALKING HEADS, Burning Down the House, on SPEAKING IN TONGUES (WEA/Warner Bros. 1983). 3. PIERRE SCHLAG, THE ENCHANTMENT OF REASON (1998) [hereinafter ENCHANTMENT].. When I say "such works," I mean law review articles.
Preservation of freedom of expression is properly understood as one of the bulwarks of our consti... more Preservation of freedom of expression is properly understood as one of the bulwarks of our constitutional liberty. Yet the prohibition on government regulation of expression has never been considered absolute. One area of less than absolute protection is found in the commercial speech doctrine. Government may regulate commercial speech for its truth where such regulation advances a substantial governmental interest which is advanced by the regulation and there is a good fit between regulation's aims and the regulation itself. Some argue that even this intermediate level of scrutiny is too much and that commercial speech should be fully protected. Alternatively, proponents of a more protective standard for commercial speech would have the doctrine's application limited to traditional advertising. In this article Prof. Piety argues that both of these arguments should be rejected in light of experience and of the interests the First Amendment is commonly supposed to further. Si...
It is probably unique in the first year curriculum, but every year I make my civil procedure stud... more It is probably unique in the first year curriculum, but every year I make my civil procedure students read chapter 89 entitled Fast-Fish and Loose-Fish from Herman Melville’s Moby-Dick. And it is invariably a mystery to my students why I do so. They always wonder (even if they don’t ask), “What has this got to do with the law?” “What am I supposed to take from this?” And, though every year I endeavor to explain it to them, I rather suspect that for many the lesson is one that takes some time to sink in – if indeed it is not entirely lost. For they are first-year students, and thus still laboring under all sorts of delusions about what the law is, what will we teach them and what they are expected to know. Still, I always start the semester of civil procedure with this reading. I believe that no matter how mystifying it may be to the vast majority of them, there is virtually no better vehicle from which to launch a discussion of and to begin thinking about the knotty problem that is ...
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