Constitutional Law & Institutional “Tailoring”: My Contrarian View

I’ve just uploaded to SSRN my latest article, which I wrote and presented as part of a February UCLA Law Review Symposium on “Constitutional Niches: The Role of Institutional Context in Constitutional Law”, Prisoners and Students and Workers – Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine. (In January, I’d linked a blog post to a much more preliminary draft in advance of the conference; this is a much more complete draft, and editing is just starting, so I’d love any comments!)

With the Symposium focused on “The Role of Institutional Context in Constitutional Law, my paper took a slightly contrarian view, arguing that when courts tailor doctrine to the needs and characteristics of particular institutions (like public schools, prisons, and workplaces), courts tend to overstate the uniqueness of those institutions. This is dangerous in the First Amendment context, because when courts overstate the unique institutional needs of, say, prisons, they’ll end up allowing too much restriction of speech on an exaggerated “prisons are special” theory. The basis for my conclusion that courts are exaggerating, not just recognizing, institutional uniqueness is a “pL“-type risk analysis of the arguments that prisons, schools, and workplaces face unique risks from dangerous speech.

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