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The Institute for the Study of the Judiciary, Politics, and the Media (IJPM) is a collaborative effort between Syracuse University's College of Law, Maxwell School of Citizenship and Public Affairs, and S.I. Newhouse School of Public Communications. IJPM is devoted to the interdisciplinary study of issues at the intersection of law, politics, and the media. The institute sponsors lectures, conferences, and symposia designed to foster discussion and debate between legal scholars, sitting judges, and working journalists. The institute provides research grants and seed money for scholars pursuing law-oriented projects that cut across traditional academic boundaries. The institute also oversees a cross-disciplinary graduate certificate program organized around a team-taught course offerings. To learn more about IJPM and its activities, please visit http://jpm.syr.edu/.


Table of Contents

The 'Press,' Then & Now

Sonja West, University of Georgia School of Law

Measuring Illegal and Legal Corruption in American States: Some Results from the Edmond J. Safra Center for Ethics Corruption in America Survey

Oguzhan C. Dincer, Illinois State University - Department of Economics, Harvard University - Edmond J. Safra Center for Ethics
Michael Johnston, Colgate University, Harvard University - Edmond J. Safra Center for Ethics

The Half-Hearted Protection of Journalists’ Sources: Judicial Interpretation of Australia’s Shield Laws

Hannah Ryan, University of Sydney

The Barons of the Constitution: Pact and Politics on the Definition of the Right to Property in the Brazilian Constituency

Wellington Migliari, University of Barcelona
Alexandre Douglas Zaidan de Carvalho, Universidade de Brasília (UnB), Universitat Pompeu Fabra - Department of Law

A 'Faustian Pact'?: Native Advertising and the Future of the Press

Lili Levi, University of Miami - School of Law

Congress's International Legal Discourse

Kevin L. Cope, University of Michigan


LAW, POLITICS & THE MEDIA eJOURNAL
Sponsored by Institute for the Study of the Judiciary,
Politics, and the Media (IJPM) at Syracuse University

"The 'Press,' Then & Now" Free Download
UGA Legal Studies Research Paper No. 2015-6

SONJA WEST, University of Georgia School of Law
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Does the First Amendment’s protection of freedom of “the press? simply mean that we all have the right to use mass communication technology to disseminate our speech? Or does it provide constitutional safeguards for a particular group of speakers who function as government watchdogs and citizen surrogates? This question defines the current debate over the Press Clause. The Supreme Court’s Citizens United decision, along with recent work by Michael McConnell and Eugene Volokh, suggests the answer is the former. This article pushes back on that view.

It starts by expanding the scope of the relevant historical evidence. Discussions about the original meaning of the “press? typically focus only on the ratifying generation’s explicit rhetoric. This approach, however, fails to consider valuable evidence about colonial and early-American lived experiences with the printing press. To members of the framing generation, this new evidence reveals, the press was a tool of limited access, available only to certain speakers, controlled by gatekeeper printers, and used primarily for matters of public concern. Early Americans may have spoken of press freedom as open and inclusive, but printing, as they actually knew it, was not. Rather, it played a specific societal role.

Historical evidence is only of true value, moreover, if it is used to address the right question. This article thus shifts the pertinent question from “what? members of the founding generation were protecting — technology or trade — to “why? they sought to protect it. History reveals that they saw the Press Clause as having two functions — an individual, self-expressive function and a structural, government-monitoring function. At the time, a singular notion of the “press? embodied all of these concepts (a technology as well as an expressive and a structural function), leaving no need to distinguish among them. Today, however, that conceptual overlap no longer exists. For a variety of reasons — including advances in communication technologies, expansion of access to these technologies, growing complexity of government, and development of journalistic standards — press functions and press technology are now unique concepts.

Today’s advanced mass communication technologies, buoyed by our modern robust speech jurisprudence, provide individuals with extensive expressive channels. Modern journalistic practices, meanwhile, fill a more dedicated and refined watchdog role. To be sure, some overlap still exists. Broad use of mass communication technology can lead to government scrutiny, and journalism has expressive qualities. But the primary uses of the two have diverged significantly since the late-1700s. An interpretation of the Press Clause that is faithful to the original goals of press freedom should reflect these modern realities.

"Measuring Illegal and Legal Corruption in American States: Some Results from the Edmond J. Safra Center for Ethics Corruption in America Survey" Free Download
Edmond J. Safra Working Papers, No. 58

OGUZHAN C. DINCER, Illinois State University - Department of Economics, Harvard University - Edmond J. Safra Center for Ethics
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MICHAEL JOHNSTON, Colgate University, Harvard University - Edmond J. Safra Center for Ethics
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Using data from the "Edmond J. Safra Center for Ethics Corruption in America Survey", we construct indices measuring two specific forms of corruption across American states: illegal and legal. We define illegal corruption as the private gains in the form of cash or gifts by a government official, in exchange for providing specific benefits to private individuals or groups, and legal corruption as the political gains in the form of campaign contributions or endorsements by a government official, in exchange for providing specific benefits to private individuals or groups, be it by explicit or implicit understanding. We then put our indices to work and investigate why some states are more corrupt than the others. In addition to demographic and economic variables we also investigate how political participation effects corruption depending on how well it is covered by the media. Our results suggest that we have a lot to learn about the politics of corruption control.

"The Half-Hearted Protection of Journalists’ Sources: Judicial Interpretation of Australia’s Shield Laws" Free Download
(2014) 19 Media and Arts Law Review 325

HANNAH RYAN, University of Sydney
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Since 2011, several Australian jurisdictions have introduced ‘shield laws’ featuring a rebuttable presumption that journalists will not be compellable to give evidence that would disclose the identity of a confidential source. The first relevant case decided under these laws suggested that they will be more favourable to journalists than previous common law and statutory positions. However, celebration is premature. Australian judges have always been reluctant to exempt journalists from compelled disclosure of their sources, despite the fundamental ethical obligation journalists have to keep source identity and information confidential. Courts have only slowly and hesitantly recognised a public interest supporting that obligation. One important reason is that, unlike European and English courts, Australian courts have failed to consider the free speech implications of disclosure. As long as this judicial predisposition persists, Australian shield laws may provide only a weak protection for journalists.

"The Barons of the Constitution: Pact and Politics on the Definition of the Right to Property in the Brazilian Constituency" Free Download

WELLINGTON MIGLIARI, University of Barcelona
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ALEXANDRE DOUGLAS ZAIDAN DE CARVALHO, Universidade de Brasília (UnB), Universitat Pompeu Fabra - Department of Law
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The close reading of newspaper articles for the construction of law may seem really interesting, but it is not certainly a sociological common practice in the juridical studies. As part of society, journalists can be considered actors of a privilege point of view in delineating the boundaries of a social system and its surroundings based on selectiveness. We have tried to make evident the definition of the right to property and the critical paradox involving its social function. There is also an attempt to make clear a very biased discussion on the effects of what would be social in an urban country, but with strong traditional forces of large rural property owners. For that, we created a set of concepts strongly recommended to shed light on what we define as supra and meta-party during the 1987-88 Brazilian Constituency. The selection of discourses, personal relations, informality and parallel legislative mechanisms were common practices only during the anti-democratic periods as barons used to have in the Brazilian society. The national dimensions of singular structures of the re-democratic legislatures and the logic to capture the legal order in the right to property are essential as well. The objective of the present article is the analysis of forty-two pieces of newspaper articles to show how the idea of selectiveness structured the legislative work in the making of the 1988 Federal Constitution. We collected documents from 1985 to 1988 period related to the tension on the right to property and the fights for what would mean “social function? in the Magna Chart.

"A 'Faustian Pact'?: Native Advertising and the Future of the Press" Free Download

LILI LEVI, University of Miami - School of Law
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As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of “native advertising? – a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers’ well-documented ad avoidance. Although the native advertising model debuted on digital native news sites, it is now ubiquitous in elite legacy media as well. Everyone knew “native? had “arrived for good? when the venerable New York Times not only introduced its online “Paid Post,? but incorporated sponsored content in its print editions, and even hired an in-house branded content production team to conceive and execute the embedded ads on behalf of advertisers. Because such integrated advertising must inevitably flirt with disguise and deception, administrative and scholarly attention has principally addressed it through a consumer protection lens. Yet this conventional frame ignores the more insidious hazards of this transformational development. Apart from confusing at least some consumers, the turn to native ads will profoundly hobble the press in the exercise of its democratic role and will invite recalibration of its privileged constitutional status. These effects are particularly troubling in an age when increases in global state power and new forms of censorship most call for a powerful, independent and fearless press. Still, since native advertising is here to stay, admittedly imperfect responses must be explored. In that spirit, this Article proposes three solutions: 1) designing sponsorship disclosure at the per-ad level in close alignment with results of rigorous empirical research regarding consumers’ cognitive and perceptual responses to labeling; 2) adopting an additional new approach to corporate-level disclosure – highlighting advertiser identity and spending – in order to aid public oversight over the editorial independence of news organizations; and 3) addressing structural impediments to collective action by news organizations in order to promote collective strategies for effective self-regulation in the deployment of native advertising.

"Congress's International Legal Discourse" Free Download
Michigan Law Review, Vol. 114 (2015, Forthcoming)

KEVIN L. COPE, University of Michigan
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Despite Congress’s important role in enforcing international law obligations, the relevant existing literature largely ignores the branch. This omission may stem partly from the belief, common among both academics and lawyers, that Congress is generally unsympathetic to or ignorant of international law. Under this conventional wisdom, members of Congress would rarely if ever imply that international law norms should impact otherwise desirable domestic legislation. Using an original dataset comprising thirty years of legislative histories of pertinent federal statutes, this Article questions and tests that view. The evidence refutes the conventional wisdom. It shows instead that, in legislative debates over bills whose enactment arguably triggers international law violations, members of Congress urge international law compliance relatively often, using rhetorical framing devices similar to those that members use for comparable constitutionally problematic bills. The arguments are overwhelmingly supportive of international law and often phrased in legalistic terms. The evidence suggests, moreover, that such international law invocation may be partially motivated by political self-interest. These findings, together with existing literature and qualitative evidence from former policymakers, imply that members of Congress may be incentivized to take public pro-international law positions by international law-minded executive officials. In this way, the executive may use the legislature to reinforce the national commitment to international law obligations. Through this interbranch bargaining, the president might use congressional international law discourse to boost the country’s international credibility and strengthen her office’s own hand in making and enforcing future commitments.

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About this eJournal

Sponsored by: Institute for the Study of the Judiciary, Politics, and the Media (IJPM) at Syracuse University.


Legal systems operate in a complex environment of principle, political pressure, and media coverage. The goal of the Law, Politics, and the Media subject eJournal is to distribute abstracts of working papers and articles that promote a more integrated understanding of law, courts, and their environment. To this end, the eJournal seeks scholarship that addresses any combination of legal, political, and media-related themes in the analysis of legal institutions, beliefs, and practices. The eJournal is open to work from the social sciences, the humanities, and the legal academy. Papers and articles that focus on the United States, as well as scholarship that is comparative or international in scope, are welcome.

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LSN SUBJECT MATTER EJOURNALS

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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Advisory Board

Law, Politics & the Media eJournal

LYLE DENNISTON
Reporter, SCOTUSblog

CHARLES G. GEYH
John F. Kimberling Professor of Law, Indiana University School of Law-Bloomington

TONY MAURO
Supreme Court Correspondent, Legal Times/Incisive Media

MICHAEL MCCANN
Gordon Hirabayashi Professor for Advancement of Citizenship; Director, Comparative Law and Society Studies (CLASS) Center, University of Washington - Department of Political Science

AUSTIN SARAT
William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College