Adrienne Stone (University of Melbourne – Law School) has posted Schauer’s Free Speech Comparativism on SSRN. Here is the abstract:
This essay, written as a tribute to Professor Frederick Schauer, offers reflections on two of the most important essays he wrote on freedom of speech for a comparative audience: “The Exceptional First Amendment” and “Freedom of Expression Adjudication in Europe and the United States: a case study in comparative constitutional architecture”. The essays, which demonstrate the command of doctrinal detail and deep jurisprudential insight that are hallmarks of Schauer’s work, offer a prediction on the development of freedom of expression in the US and elsewhere that is worth revisiting after 20 years. In the first piece, Schauer introduced a distinction between ‘methodological’ and ‘substantive’ exceptionalism in his account of First Amendment law. The second essay he went further, drawing firm links between American substantive exceptionalism and its methodological exceptionalism. The second essay, which goes somewhat against the grain of the first, concluded that the rulified nature First Amendment law was unlikely to change because of its deep roots in American constitutional culture. This essay reflects on Schauer’s argument, noting that his prediction as to the future of First Amendment law has proved correct. It then turns to two closely related jurisdictions – Australia and Canada. Consistently with Schauer’s claims about the connection between doctrinal structure and constitutional culture, the law in both Australia and Canada exhibits the same close connection between method and substance. This connection has proved a force that resists doctrinal convergence, and has left each jurisdiction with distinctive doctrinal structures.
Highly recommended.