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Thomas Halper

Abstract

Most judicial opinions, for a variety of reasons, do not speak with the voice of identifiable judges, but an analysis of several of John Marshall’s best known opinions reveals a distinctive voice, with its characteristic language and style of argumentation. The power of this voice helps to account for the influence of his views.

Open access

Thomas Halper

Abstract

Felix Frankfurter, renowned as a public intellectual fighting for justice, became as a member of the Supreme Court a figure proclaiming his devotion to the rule of law and its corollary, judicial self restraint, even when its results conflicted with his deepest beliefs. Yet an analysis of several of his leading opinions suggests that his famous balancing tests had little to do with law. In sacrificing his policy and ethical goals in the service of law, he often failed to serve the law, and in that sense, his well publicized sacrifices were for nothing.

Open access

Thomas Halper

Abstract

The first amendment does not protect all speech. Should it protect lies? Some argue that the state should intervene to prevent and punish lying because the people are insufficiently rational (they are too emotional, and, therefore vulnerable) or excessively rational (they find it too costly to investigate claims and are, therefore, vulnerable). Others retort that state officials are not neutral or objective, but have their own interests to advance and protect, and, therefore, cannot be trusted. Though certain kinds of lying, like fraud and perjury, are clearly not protected speech, courts have recently seemed sympathetic to the view that the proper response to lying is not government action, but the workings of the marketplace of ideas. The distinguished economist, Ronald Coase, has taken this argument much farther, applying it to commercial speech, but thus far his views have not prevailed.