Special Republications | The University of Chicago Law Review

Confirmation Messes, Old and New
Article by Elena Kagan

This Book Review presents some of Professor Kagan's views on the confirmation process. Professor Kagan argues that Senators ought to straightforwardly and candidly engage with judicial candidates in the confirmation process: "the problem is not that senators engage in substantive discussion with Supreme Court nominees; the problem is that they do not." Professor Kagan suggests that such a deferential process undermines the Senate's real duty—to explore the "essential rightness—the legitimacy and desirability—of exploring a Supreme Court nominee's set of constitutional views and commitments." 62 U Chi L Rev 919.

Private Speech, Public Purpose: The role of Governmental Motive in First Amendment Doctrine
Article by Elena Kagan

This Article argues that, as a purely descriptive matter, First Amendment law, "as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives." Professor Kagan argues that such an indirect route of discovery is necessary because such motives are often not discoverable through "direct inquiry." Thus as a general matter, they have been appropriate proxies for "ferreting out and then invalidating impermissibly motivated governmental actions." 63 U Chi L Rev 413.

Regulation of Hate Speech and Pornography After R.A.V.
Article by Elena Kagan

This Article discusses the Supreme Court's ruling in R.A.V. v City of St. Paul. In R.A.V., "the Court struck down a so-called hate speech ordinance, in the process reiterating, in yet strengthened form, the tenet that the First Amendment presumptively prohibits the regulation of speech based upon its content, and especially upon its viewpoint. That decision demands a change in the nature of the debate on pornography and hate speech regulation. It does so for principled reasons-because it raises important and valid questions about which approaches to the regulation of hate speech and pornography properly should succeed in the courts. And it does so for purely pragmatic reasons—because it makes clear that certain approaches almost surely will not succeed." 60 U Chi L Rev 873.