Articles

Patrick Garry has published more than 100 scholarly articles in the field of law. Many of those articles address a subject on which Garry has become a nationally-recognized expert—the First Amendment. In his First Amendment articles, Garry addresses both the speech and religion clauses. Regarding the speech clause, he applies the original meaning behind the First Amendment to the complex and unforeseen circumstances of our modern media society. In his articles on the Establishment Clause, Garry argues that too often the courts apply this clause in a way completely unintended by the constitutional framers and ratifiers. He argues that the courts frequently apply the Establishment Clause as a kind of distorted individual “dissenter’s” right to be free of exposure to religion in society.

Garry has also published scholarly articles in the fields of general constitutional law, administrative law, and media law. His work in the area of constitutional law focuses on federalism and separation of powers. And his scholarly work in media law stems from his earlier experiences as a lawyer for the Minnesota News Council and a research fellow with the Freedom Forum Media Studies Center at Columbia University.

The law journals in which Patrick Garry has published include the Utah Law Review, Southern Methodist University Law Review, Brigham Young University Law Review, Pepperdine Law Review, Missouri Law Review, Arizona State Law Journal, University of Miami Law Review, Kentucky Law Journal, Alabama Law Review, Temple Law Review, Florida Law Review, Wake Forest Law Review, and Pittsburgh Law Review. In addition to being published in leading law journals, Garry has also published articles in a wide array of reference books. These reference books include the Encyclopedia of the Supreme Court of the United States, the Encyclopedia of the First Amendment, The Oxford Companion to U.S. History, The Oxford Companion to the Supreme Court of the United States, the First Amendment Law Handbook, and The American Midwest: An Interpretive Encyclopedia.

Some of the titles and citations of  Garry’s articles appear below.

 

Scholarly Articles

  • Prayer and the Meaning of the Establishment Clause: A Debate on Greece v. Galloway, AKRON JOURNAL OF CONSTITUTIONAL LAW & POLICY (invited article)(2014).
  • Government Power, Rather Than Individual Autonomy, as the Focus of the Bill of Rights, LAW AND LIBERTY (invited feature article)(forthcoming).
  • Aspirations as a Basis of Law: Competing Approaches, JOURNAL OF LAW & INTERDISCIPLINARY STUDIES (invited symposium article)(forthcoming)
  • The Hard Look Doctrine and the Inherent Contradictions in Views About Judicial Review of Administrative Agencies, WASHBURN LAW REVIEW (invited symposium piece)(forthcoming).
  • A Constitutional History of the 1889 South Dakota Constitution, SOUTH DAKOTA LAW REVIEW (invited article)(co-author)(forthcoming).
  • The Growing Importance of State Constitutional Law in the U.S. Legal System, SOUTH DAKOTA LAW REVIEW (invited article)(lead article)(forthcoming).
  • The Debates of the 1885 and 1889 South Dakota Constitutional Conventions, SOUTH DAKOTA LAW REVIEW (invited article)(co-author)(forthcoming).
  • An Equal Protection View of the First Amendment, 28 QUINNIPIAC LAW REVIEW 787 (2010) (lead article).
  • Assessing the Constitutional Autonomy of Such Non-State Institutions as the Press and Acadamia, 2010 UTAH LAW REVIEW 141 (2010) (forthcoming) (invited Symposium article).
  • Liberty Through Limits: The Bill of Rights as Limited Government Provisions, 62 SMU LAW REVIEW (1745)  2009.
  • Re-evaluating Media Regulation in a Media Environment of Nearly Unlimited Entertainment Programming and Ample Alternative Channels of Communication. 22 REGENT LAW REVIEW 347 (2010) (invited symposium articles).
  • The Internet and the Captive Audience Doctrine, 2007 BRIGHAM YOUNG UNIVERSITY LAW REVIEW 1595 (2008) (invited symposium article) (listed as an SSRN Top-Ten downloaded article in relevant category) (reprinted in Online Child Protection (ICFAI Law Books) and in Internet Pornography – Legal Issues (Amicus Books)).
  • Diversity as a Compelling Interest for Racial Preferences in Higher Education, 35 PEPPERDINE LAW REVIEW 649 (2008) (invited symposium article).
  • The First Amendment and Non-Political Speech: Exploring a Constitutional Model That Focuses on the Existence of Alternative Channels of Communication, 72 MISSOURI LAW REVIEW 477 (2007).
  • Accommodating the Administrative State:  The Interrelationship Between the Chevron and Nondelegation Doctrines, 38 ARIZONA STATE LAW JOURNAL 921 (2007).
  • The Constitutional Relevance of the Employer-Sovereign Distinction: Examining the Due Process Rights of Government Employees in Light of Recent Developments in the Public Sector Speech Doctrine, 81 ST. JOHN’S LAW REVIEW 797 (2007), reprinted in Due Process-Legal Dynamics (Amicus Books, 2008).
  • The Democratic Aspect of the Establishment Clause: A Refutation of the Argument that the Clause Serves to Protect Religious or Nonreligious Minorities, 59 MERCER LAW REVIEW 595 (2008).
  • Coordinating the Exercise and Establishment Clauses: A Constitutional Test for Government Funding of Prisoner Rehabilitation Services by Non-secular Providers, 5 AVE MARIA LAW REVIEW 387 (2007) (invited symposium article) (reprinted in Prison Reforms: A Legal Perspective (Amicus Law Books)).
  • A Different Model for the Constitutional Right to Privacy:  The Political Question Doctrine as a Substitute for Substantive Due Process, 61 UNIV. OF MIAMI LAW REVIEW 169 (2006) (reprinted in Anita Allen, Privacy Law and Society (Thomson/West), and in Due Process of Law – An Overview (Amicus Books)).
  • Liberty From On High: The Growing Reliance on a Centralized Judiciary to Protect Individual Liberty, 95 KENTUCKY LAW JOURNAL 385 (2006) (listed in SSRN Top-Ten Downloaded articles).
  • The Unannounced Revolution: How the Court Has Indirectly Effected a Shift in the Separation of Powers, 57 ALABAMA LAW REVIEW 689 (2006).
  • Judicial Review and the Hard Look Doctrine, 7 NEVADA LAW REVIEW 151 (2007).
  • Where Speech Loses Its Lustre: Campaign Finance Laws and the Downgrading of Political Speech in Comparison with Indecent Speech, 12 NEXUS LAW JOURNAL 83 (2007) (invited symposium article).
  • The Constitutional Lynchpin of Liberty In an Age of New Federalism:  Replacing Substantive Due Process with the Right to Travel, 45 BRANDEIS LAW JOURNAL 469 (2006).
  • A Congressional Attempt to Alleviate the Uncertainty of the Court’s Establishment Clause Jurisprudence: The Public Expression of Religion Act, 37 CUMBERLAND LAW REVIEW 1 (2006).
  • A One-Sided Federalism Revolution: The Unaddressed Constitutional Compromise on Federalism and Individual Rights, 36 SETON HALL LAW REVIEW 851 (2006).
  • An Ideological Turning Point, MODERN AGE: A QUARTERLY REVIEW (Winter, 2007) (listed and abstracted in INTERNATIONAL POLITICAL SCIENCE ABSTRACTS).
  • Federalism’s Battle with History: The Inaccurate Associations With Unpopular Politics, 74 UMKC LAW REVIEW 365 (2006).
  • Anonymous Sources, Libel Law and the First Amendment, 78 TEMPLE LAW REVIEW 579 (2005) (reprinted in Defamation (ICFAI Books)) (listed as an SSRN Top-Ten Downloaded article).
  • Law and Religion in Modern Culture, MODERN AGE: A QUARTERLY REVIEW (Summer 2005).
  • Religious Freedom Demands More Than Neutrality: The Constitutional Argument for Nonpreferential Aid to Religion, 57 FLORIDA LAW REVIEW 1 (2005) (lead article) (reprinted in Freedom of Religion and Secularism (ICFAI Law Books, forthcoming) (featured on University of Montana’s The Scholarship of the Original Understanding of the Constitution) (listed as an SSRN Top-Ten Downloaded article).
  • An Inequality Among Equals: Disparities in the Judicial Treatment of Free Speech and Religious Exercise Claims, 39 WAKE FOREST LAW REVIEW 361 (2004).
  • The Institutional Side of Religious Liberty: A New Model of the Establishment Clause, 2004 UTAH LAW REVIEW 1155 (Vol. 2004).
  • The Right to Reject: The First Amendment in a Media-Drenched Society, 42 SAN DIEGO LAW REVIEW 129 (2005).
  • The Distorted Uses of the First Amendment, 10 NEXUS LAW JOURNAL 83 (2005) (invited symposium article).
  • Confronting the Changed Circumstances of Free Speech in a Media Society, 33 CAPITAL UNIVERSITY LAW REVIEW 551 (2005).
  • The Next Step in the Diversity Rationale, 82 DENVER UNIVERSITY LAW REVIEW 1 (2005).
  • The Myth of Separation: Church-State Relations in the U.S., 33 HOFSTRA LAW REVIEW 475 (2005) (listed as an SSRN Top-Ten Downloaded article).
  • The Flip Side of the First Amendment: A Freedom to Filter, 2004 MICHIGAN STATE UNIV. LAW REVIEW 57 (2004).
  • The First Amendment in a Time of Media Proliferation, 65 UNIV. OF PITTSBURGH LAW REVIEW 183 (2004).
  • Defining Speech in an Information Age: The Case of First Amendment Protection for Video Games, 57 SOUTHERN METHODIST UNIV. LAW REVIEW 139 (2004).
  • Censorship by the Free-Speech Generation, NATIONAL FORUM (Spring 1995) (invited article).
  • Churches and Courts: The First Amendment and Clergy Lawsuits, 9 JOURNAL OF LAW AND RELIGION 179 (1991).
  • The Trouble with Confidential Sources: A Criticism of the Supreme Court’s Interest?Group View of the First Amendment in Cohen v. Cowles Media Company, 14 HASTINGS COMMUNICATION AND ENTERTAINMENT LAW JOURNAL 403 (1992).
  • Opening Up the Marketplace to Free Trade in Ideas, 14 LAW AND SOCIAL INQUIRY 415 (1989) (with Paul Murphy).
  • The Emerging Legal Relationship Between an Investment Banker and Its Client: An Argument for a Fiduciary Relationship, 12 HAMLINE LAW REVIEW (1988), reprinted in 32 CORPORATE PRACTICE COMMENTATOR (1990) (with Pat McDavitt).
  • That Venerable (or is it Vulnerable?) Institution: The Supreme Court, 17 REVIEWS IN AMERICAN HISTORY 631 (1989) (with Paul Murphy).
  • The First Amendment and Freedom of the Press: A Revised Approach to the Marketplace of Ideas, 72 MARQUETTE LAW REVIEW 187 (1989).
  • The Press and the Dilemma of the Fourth Estate, 22 LAW AND SOCIETY REVIEW 1043 (1988) (with Paul Murphy).
  • The Relationship Between Employment Agreements and Trade Secret Litigation, 11 WILLIAM MITCHELL LAW REVIEW 501 (1985).

Empirical Research Articles

  • The Use and Success of Summary Judgment – Motions: A Case Study of Summary Judgment – Motion Practice in Minnehaha County, 7 LIBERTY UNIVERSITY LAW REVIEW 1 (2012) (with Jaclyn Aberson, Candice Spurlin, John P. Garry) (Awarded the LitigationWorld Pick of the Week Award )
  • Federalism Implications of Campaign Financing Practices: A Case Study of the South Dakota Referndum on Abortion, 54 SOUTH DAKOTA LAW REVIEW 36 (2010) (lead author) (listed as an SSRN Top-Ten downloaded article).
  • The First Amendment and Indian Tribal Constitutions and Legal Systems: A Case Study, 53 SOUTH DAKOTA LAW REVIEW 335 (2008) (lead author) (listed as a SSRN Top-Ten downloaded article in relevant category)(reprinted in Tribal Rights: A Praxis (ICFAI Books, 2010)).
  • Does Filtering Stop the Flow of Valuable Information?: A Case Study of the Children’s Internet Protection Act (CIPA) in South Dakota, 54 SOUTH DAKOTA LAW REVIEW 89 (2009) (with Candice Spurlin) (reprinted inInternet Censorship (ICFAI Law Books)) (listed as SSRN Top-Ten downloaded article in relevant category).
  • Wind Energy in Indian Country: A Study on the Challenges and Opportunities Facing the South Dakota Tribes, 54 SOUTH DAKOTA LAW REVIEW 448 (2009) (with Derek Nelson and Candice Spurlin) (listed as an SSRN Top-Ten Downloaded article).
  • The Effectiveness of Media Ratings Systems in Preventing Children’s Exposure to Violent and Sexually Explicit Media Content: An Empirical Study, 32 OKLAHOMA CITY UNIVERSITY LAW REVIEW 215 (2007) (with Candice Spurlin) (selected for inclusion in University of La Verne’s Selective Bibliographic Index of Juvenile Law Publications).
  • The Challenges to Harmonization of Inter-jurisdictional Trade Laws, 51 SOUTH DAKOTA LAW REVIEW 256 (2006) (with Candice Spurlin).
  • The Irrationality of Shareholder Class Actions: A Proposal for Reform, 49 SOUTH DAKOTA LAW REVIEW (2004) (lead author) (listed as an SSRN Top-Ten downloaded article in relevant category).

Reference Book Contributions

  • The Antifederalists, appearing in THE ENCYCLOPEDIA OF THE FOURTH AMENDMENT (forthcoming from Congressional Quarterly Press).
  • Bowers v. Hardwick, appearing in THE ENCYCLOPEDIA OF THE FOURTH AMENDMENT.
  • Carolene Products Footnote Four, appearing in THE ENCYCLOPEDIA OF THE FOURTH AMENDMENT.
  • Bartnicki v. Vopper, appearing in THE ENCYCLOPEDIA OF THE FOURTH AMENDMENT.
  • Samuel Adams, appearing in THE ENCYCLOPEDIA OF THE FOURTH AMENDMENT.
  • Zurcher v. Stanford Daily, appearing in THE ENCYCLOPEDIA OF THE FOURTH AMENDMENT.
  • The Red Scare, appearing in THE ENCYCLOPEDIA OF THE FOURTH AMENDMENT.
  • Ashcroft v. Free Speech Coalition, appearing in the ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES (Thomson/Gale 2008).
  • O’Hare Truck Service v. City of Northlake appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES (Thomson/Gale).
  • Agostini v. Felton, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • Aguillar v. Felton, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • FCC v. Pacifica Foundation, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • Lemon v. Kurtzman, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • National League of Cities v. Usery, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • Branzburg v. Hayes, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • Widmar v. Vincent, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • Lynch v. Donnelly, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • Rosenberger v. Rector and Visitors of the University of Virginia, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • Motor Vehicle Manufacturers Assn. v. State Farm Mutual Automobile Ins. Co., appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • Board of Commissioners v. Umbehr, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • U.S. v. Playboy Entertainment Group Inc., appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • Reno v. ACLU, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • Cohen v. California, appearing in ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES.
  • The Captive Audience Doctrine, appearing in THE ENCYCLOPEDIA OF THE FIRST AMENDMENT (Congressional Quarterly Press 2008).
  • The Self-Government Rationale, appearing in THE ENCYCLOPEDIA OF THE FIRST AMENDMENT (Congressional Quarterly Press).
  • Action for Children’s Television v. FCC, appearing in THE ENCYCLOPEDIA OF THE FIRST AMENDMENT (Congressional Quarterly Press).
  • Heffron v. International Society for Krishna Consciousness, appearing in THE ENCYCLOPEDIA OF THE FIRST AMENDMENT (Congressional Quarterly Press).
  • Zechariah Chafee, appearing in THE ENCYCLOPEDIA OF THE FIRST AMENDMENT (Congressional Quarterly Press).
  • Video Games, appearing in THE ENCYCLOPEDIA OF THE FIRST AMENDMENT (Congressional Quarterly Press).
  • Cohen v. Cowles Media Co., appearing in THE ENCYCLOPEDIA OF THE FIRST AMENDMENT (Congressional Quarterly Press).
  • Miami Publishing Co. v. Tornillo, appearing in THE ENCYCLOPEDIA OF THE FIRST AMENDMENT (Congressional Quarterly Press).
  • Randall v. Sorrell, appearing in THE ENCYCLOPEDIA OF THE FIRST AMENDMENT (Congressional Quarterly Press).
  • Rowan v. U.S. Post Office, appearing in THE ENCYCLOPEDIA OF THE FIRST AMENDMENT (Congressional Quarterly Press).
  • The History of Civil Liberties, appearing in THE OXFORD COMPANION TO U.S. HISTORY (Oxford University Press, 2001).
  • Prior Restraint and the Supreme Court, appearing in THE OXFORD COMPANION TO U.S. HISTORY (2001).
  • Schenck v. United States, appearing in THE OXFORD COMPANION TO U.S. HISTORY (2001).
  • The Sam Sheppard Trial, appearing in THE AMERICAN MIDWEST: AN INTERPRETIVE ENCYCLOPEDIA (Indiana University Press, 2007).
  • The Free Speech Debate During WWI and the Search for National Identity, appearing in THE ENCYCLOPEDIA OF WORLD WAR I (Garland Publishing, Inc., 1995).
  • Prior Restraint, appearing in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES (Oxford University Press, 1992).
  • Pretrial Publicity and the Gag Rule, appearing in THE OXFORD COMPANION TO THE SUPREME COURT (1992).
  • Nebraska Press Association v. Stuart and the Fourth Estate Model, appearing in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES (1992).
  • The Legacy of Shephard v. Maxwell, appearing in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES (1992).
  • The Commercial Speech Doctrine, appearing in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES (1992).
  • Edwards v. California, appearing in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES (1992).
  • Contributing author, HISTORY OF THE U.S. DISTRICT COURT (West Publishing Co., 1988).

Other Publications

  • Published essays and articles in many popular audience periodicals, including the Minneapolis Star Tribune, Chicago Tribune, Cincinnati Post, Commonweal, Washington Times, Union Leader, The Republic, Indianapolis News, Law & Politics, News-Globe, Insight Magazine, Omaha World-Herald, Daily Times, Free Lance-Star, The Gazette, Northwest Herald, Standard-Examiner, The Chicago Tribune Magazine, Corpus Christi Caller-Times, the News-Herald,and Renew America.

Media Coverage and Citations

  • Cited or quoted in such mass media entities asThe New Yorker, Times Literary Supplement, San Diego Union-Tribune, Sioux Falls Argus Leader, Sioux City Journal, National Catholic Register, Indianapolis Star, St. Paul Pioneer Press, National Journal, WNYC-FM, KSJN-FM, WFPL-FM,  WCCO-AM, KSTP-AM, KDLT-TV, KSGF-FM, WCWA, WWCR, MSNBC, 169 XM Radio, Information Radio Network, KWRE, WCBM, The Michael Dresser Show, KVON, WLQV, The Dennis Prager Show, CBS (network) News.