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19 Lewis & Clark L. Rev. [i] (2015)

handle is hein.journals/lewclr19 and id is 1 raw text is: Lewis & Clark Law Review VOLUME 19 2015 NUMBER 1 ARTICLES Brandenburg for Groups Steven R . M orrison ...................................................................................... 1 Contemporary emerging scholarship on the First Amendment right of assembly is based primarily on either normative arguments arising from post-World War II cases or constitutional originalism that looks to the Framers' intent. This scholarship continues to treat the advent of substantive First Amendment rights in the World War I era as isolated to the speech right. That is an incomplete picture because the formative First Amendment cases were assembly cases just as much as they were speech cases. This Article fills that historical gap and, from it, generates a doctrinal argument in favor of the assembly right. Historically, it shows that the seminal WI cases were part of a milieu that entailed the socio-political control primarily of groups, not individuals' speech. The mechanism was membership crime-criminal conspiracy in federal and state courts, and criminal syndicalism at the state level. This Article recovers assembly as a core First Amendment right, not secondary to speech. Doctrinally, this Article shows that at the advent of the substantive First Amendment it was assembly, rather than speech, that was often the primary right at issue. Indeed, even Brandenburg v. Ohio was an assembly case before it was a speech case. This Article therefore presents what it calls the Brandenburg for groups test, which would protect groups-even some criminal conspiracies-if they pose no imminent likelihood of substantive crime. This test responds to emerging scholarship on the assembly right, most notably the debate between John D. Inazu and Ashutosh Bhagwat on the utility of Brandenburg v. Ohio to protect that right. Bhagwat on the utility of Brandenburg v. Ohio to protect that right. It traces a constitutionally and normatively appropriate line between protected and unprotected assembly that is currently lacking but is necessary to protect the democratic function of groups while continuing to ensure public safety. A Contextual Approach to Claim of Right in Adverse Possession Cases: On Van Valkenburgh v. Lutz, Bad Faith, and Mistaken Boundaries L uke M eier ................................................................................................ 47 This Article shows that, in adverse possession disputes, a uniform approach to the claim of right inquiry can produce undesirable results. To reach the desired result in one type of adverse possession case, a court might be forced to adopt a particular approach for determining whether the possessor had the required state of mind (claim of right). In a different type of adverse possession case, however, using this same

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