Temple Law Review Online
Volume 89, Online
Articles

The reflexive nature of the argument that the criminality of an act can reside in the definition of it—an argument that this Article terms “reflexive violence”—creates a self-reinforcing regime. This Article demonstrates that the creation of reflexive violence as a justification, and the use of it as a logical device in theories of criminality, is both typical of cyberlaw and dangerous for the future of the First Amendment.

By Merritt Baer [PDF]

This Article examines whether Scalia’s reasoning in Employment Division v. Smith should be the appropriate rationale adopted by the Court when reviewing laws that may burden religious freedom, in rejection of the heightened religious protections afforded by the Religious Freedom Restoration Act.

By Martha Swartz [PDF]

This Article undertakes an empirical analysis in an attempt to answer the question of whether law clerks who have clerked for multiple Supreme Court Justices have nudged them to agree on case holdings during the clerks’ second terms on the Court.

By Michael P. Kenstowicz [PDF]
Essays

In The Invention of Low-Value Speech, Genevieve Lakier criticizes recent free expression developments from a powerful historical perspective. The crux of Lakier’s article is her challenge to the historical underpinning of United States v. Stevens and the entire two-level theory of free speech. This Essay describes the lacuna in Lakier’s historical analysis of the post-1937 Court’s free expression transition and argues that the history she misses matters to our current understanding of free expression.

By Stephen M. Feldman [PDF]
Comments

Innovation is often bred of necessity. When Larry Page and Sergey Brin created Google, they didn’t look for a company to start—they looked for a problem to solve. Currently, antitrust in the United States faces a clear problem: inapplicability to new technology. The Sherman Act (“the Act”), enacted in 1890, is the primary antitrust statute in the United States. It was created to combat abuses by companies that could potentially harm the American people. At that time, America was dominated by agriculture, railroads, and industry. While the types of businesses that existed in 1890 still exist, today the nation is also home to a vast array of companies specializing in fast-moving technology. As businesses evolve, so do the ways in which they can harm the public. If there is any hope of protecting consumers, the law must keep pace with this evolution.

This paper explains the complications of applying the Sherman Act to the world of online search and offers an alternative approach. Section II provides the necessary background to understanding search engines and the ways in which they may be anticompetitive. It also explains the current state of antitrust law in the United States, and the ways in which it may apply to search engines. Section III discusses the shortcomings of the current state of the law and proposes an updated framework. The proposed framework mimics intellectual property law, dividing antitrust into industry-specific approaches with a common goal of consumer welfare. Section III then details how the Internet industry may look under such a framework and how an analysis of Google should be approached.

By Jenny Paquette [PDF]