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Tuesday, June 05, 2012

A Jurisdictional Perspective on New York Times v. Sullivan

I just posted a new paper on SSRN, entitled, A Jurisdictional Perspective on New York Times v. Sullivan: An Essay in Honor of Martin H. Redish. Here is the abstract:

New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its 50th anniversary in 2014. Often-overlooked in discussions of the case's impact on the freedom of speech is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before The Times and its civil-rights-advocate co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and the particular substantive First Amendment rules it established are a product of this jurisdictional and procedural background.

This article is a contribution to Northwestern Law Review's Festschrift in Honor of Martin H. Redish, a scholar who has produced a record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment. He also has been a sharp and unforgiving critic of many of the jurisdictional rules that kept this case out of federal court for so long. It is appropriate to recognize Redish's scholarly legacy by considering a landmark case at the intersection of his three scholarly pursuits that demonstrates why many of his arguments and criticisms are precisely correct.

I use Sullivan as the wrap-up/review for the subject matter jurisdiction portion in Civ Pro. Although doctrinally the absence of jurisdiction is clear, the discussion really helps pull subject matter jurisdiciton together and make students articulate the arguments (even if they fail). I have wanted to turn this into a paper for a couple of years. The combination of the upcoming 50th anniversary of Sullivan and this symposium honoring Redish's work made this the right to time to get this out, since I could tie the discussion directly into Redish's jurisdiction scholarship.

As always, comments welcome.

Posted by Howard Wasserman on June 5, 2012 at 10:31 AM in Article Spotlight, Civil Procedure, First Amendment, Howard Wasserman | Permalink


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I am so glad you brought my attention to this article. I can't wait to read it.

Posted by: Lyrissa | Jun 9, 2012 4:36:37 PM

I don't know how final the draft is, but if it's not too late, you might consider citing to the parity literature from the late 1970s to the early 1990s in the first part of your paper to further explain the ramifications of getting to federal court (or not). I have a (hopefully decent) summary of the main participants and their views in 12 Nev. L.J. 1. Professor Redish was one of these parity commentator, so it may fit in nicely to a tribute to him.

Posted by: Josh | Jun 5, 2012 4:14:48 PM

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