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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?