Faculty Scholarship Digest

September 2009

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


Book

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Christopher M. Fairman, FUCK: WORD TABOO AND PROTECTING OUR FIRST AMENDMENT LIBERTIES (Sphinx Publishing 2009).

This book follows Chris’ well-known 2007 law review article, and many of the reactions to that article underline the power of taboo that Chris analyzes here. The book defines taboo as “a proscription on behavior for a specific community in a specific context” and notes that every culture has taboo words — “things you’re not supposed to say.” Obviously, the word “fuck” falls into that category, and Chris details its origins (uncertain, put probably from as early as the 16th century), its two primary meanings ((i) copulation and, relatedly, cheating and exploiting and (ii) an emotional meaning with offensive force, used as an expletive but without independent meaning), its persistence (“not in spite of taboo but because of it”), and its force (taboo words trigger automatic, involuntary reactions). The book then turns to a thorough review of the law’s regulation of the use of the word, covering obscenity, fighting words, indecency, school speech, and workplace speech. Chris argues that the law may play a role in either fortifying or conquering taboo, and that on balance, legal regulation of the use of “fuck” has fortified the taboo, a result the book condemns as a broader threat to the freedoms enshrined in the First Amendment.


Book Review

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Daniel P. Tokaji, Laboratories of Election Reform, 8 ELECTION L.J. 267 (2009).

Dan’s review of DEMOCRACY IN THE STATES: EXPERIMENTS IN ELECTION REFORM (Cain et al., eds. 2008) praises the book for taking seriously the common description of the states as “laboratories of democracy.” The “hyper-decentralization of American elections” means that a breathtaking array of electoral practices have been attempted, and this book — including papers from leading empirical social scientists analyzing many of those practices — “moves us several steps closer to the worthy ideal of research-driven electoral policymaking.”

While praising the editors’ structure of the book for the “especially helpful feature” of having each paper conclude with a section on “Implications for Reform,” Dan also provides some useful warnings of the risks of moving too quickly from empirical analysis to reform. More broadly, the review notes that, taken as a whole, the book demonstrates some limits of election reform. For example, almost of all of the reforms designed to improve participation (i.e., voter turnout), such as absentee voting, choice of voting location, voting by mail, and early voting fail to effect participation — the one exception being election day registration.

The final section of the book discusses election reform and creating a “more responsive” government. Dan takes issue with one of the editors’ assertions that creating true electoral competition ought to be the main goal of future electoral reforms and notes a number of issues not covered in the book that also “warrant more searching examination,” most importantly, “different institutional arrangements for running elections and drawing district lines.”


Book Supplement

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Daniel P. Tokaji (w/Daniel Hays Lowenstein and Richard L. Hasen), 2009 SUPPLEMENT TO ELECTION LAW CASES AND MATERIALS (4th ed. Carolina Academic Press).

This supplement, written by Professors Tokaji and Hasen, to the leading text is comprehensive and detailed. It already runs 67 casebook style pages, even though the 4th edition was just published in 2008. The scope is a reflection of the current vibrancy of legal development and scholarship in this area. The Supreme Court’s decision from last term in which it, perhaps surprisingly, avoided deciding on the constitutionality of Section 5 of the Voting Rights Act receives full treatment, as does the 2008 election, the California Supreme Court’s ruling on Proposition 8, and many other matters at both the federal and state levels.