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Alan Garfield

Distinguished Professor

B.A., Brandeis University 

J.D., UCLA School of Law 


Contact

Email: [email protected]

Phone: 302.477.2140

About

Alan E. Garfield is a distinguished professor at Delaware Law School. He received his Bachelor of Arts, magna cum laude, from Brandeis University, and his Juris Doctorate from UCLA School of Law, where he was a member of the UCLA Law Review and the Order of the Coif (top 10%). Prior to joining the Delaware Law faculty, Professor Garfield worked for three years in the litigation department of Weil, Gotshal & Manges in New York City. He is licensed to practice in California and New York.

Professor Garfield has been honored for his scholarship and teaching.  He received the Outstanding Faculty Award in 2004 and 2019 and the Douglas E. Ray Excellence in Faculty Scholarship Award in 2006 and 2015. Professor Garfield served as the H. Albert Young Fellow in Constitutional Law from 2005 to 2007 and, in 2018, was named a distinguished professor.  Professor Garfield has been a visiting professor at American University’s Washington College of Law and Bryn Mawr College and is currently an adjunct professor at Drexel University School of Law.

Professor Garfield writes and teaches in the areas of Constitutional Law, Copyright, and Contracts.  His scholarship has appeared in numerous journals including the Columbia Law Review Sidebar, the Cornell Law Review, and the Washington University Law Review.  He has also published op-eds in the Philadelphia Inquirer, the Wilmington News Journal, PennLive, and NBC News THINK. Since October 2009, Professor Garfield has published a column on the Supreme Court in The News Journal.  The column, Bench Press, received the Delaware Press Association’s first place award for a personal opinion column in seven of the past eight years, and received a first-place award in a national competition in both 2012 and 2019. Professor Garfield has been quoted in The Washington Post, The Los Angeles Times, The Philadelphia Inquirer, The News Journal, Fortune, Frontline, and CBS News, and has been interviewed or appeared on WHYY, WDEL, Make No Law Podcast, and CSPAN.

Professor Garfield is the founder and coordinator of “The First State Celebrates Constitution Day,” a project run in collaboration with The News Journal editors since 2006.  He also co-founded and is the current administrator for the Delaware Law School Patent Pro Bono Program, which pairs low-income inventors with volunteer attorneys who help the inventors file patent applications.

Professor Garfield is a past chair of the Association of American Law Schools Section on Mass Communication Law.  He has served on the Board of Directors of the Delaware ACLU since 2006 and was the Board President from 2015-2017.

Why do lawyers matter?

Lawyers are the guardians of justice. Their job is to ensure that our society treats people fairly, whether it is someone who was accused of a crime, injured in an accident, or taken advantage of by an unscrupulous merchant. Ensuring that people are treated fairly is a tremendous responsibility. But it is a great honor and can be immensely gratifying.

Publications

Publications on Selected Works

Publications on SSRN

Publications in Law Reviews and Other Legal Publications

Copyright Law’s Delicate Balancing Act, Delaware Lawyer, Fall 2017, at 12, reprinted in The Computer and Internet Lawyer, Vol. 35, No. 5, at 1.

How Conservative Justices are Undermining Our Democracy (or What’s at Stake in Choosing Justice Scalia’s Successor?), 96 Ind. L. J. Supp. 60 (2016)

And the Wall Comes Tumbling Down: How the Supreme Court is Striking the Wrong Balance between Majority and Minority Rights in Church and State Cases, 68 Ark. L. Rev. 789 (2015)

The Contraception Mandate Debate: Achieving a Sensible Balance, 114 Colum. L. Rev. Sidebar 1 (2014)

To Swear or Not to Swear: Using Foul Language during a Supreme Court Oral Argument, 90 Wash. U. L. Rev. 279 (2012)

“Reasoning-Lite” in the Violent Video Game Case, 1 Wake Forest L. Rev. Online 124 (2011)

Calibrating Copyright Statutory Damages to Promote Speech, 38 Fla. St. U. L. Rev. 1 (2010)

Finding Shared Values in a Diverse Society: Lessons from the Intelligent Design Controversy, 33 Vt. L. Rev. 225 (2008)

What Should We Celebrate on Constitution Day?, 41 Ga. L. Rev. 453 (2007)

The Case for First Amendment Limits on Copyright Law, 35 Hofstra L. Rev. 1169 (2007) in Reclaiming the First Amendment: Constitutional Theories of Media Reform Symposium

Bartnicki v. Vopper, in The Encyclopedia of American Civil Liberties 113 (Paul Finkelman ed., 2006)

Protecting Children from Speech, 57 Fla. L. Rev. 565 (2005), reprinted in First Amendment Law Handbook (Rodney Smolla, ed., 2005-2006 ed.)

Basic Assumption (A Poem Based on Sherwood v. Walker), 57 SMU L. Rev. 137 (2004), reprinted in Hogg et al., Contracts: Cases and Theory of Contractual Obligation 688 (2008)

A Positive Rights Interpretation of the Establishment Clause, 76 Temp. L. Rev. 281 (2003)

The Mischief of Cohen v. Cowles Media Co., 35 Ga. L. Rev.1087 (2001)

The First Amendment as a Check on Copyright Rights, 23 Hastings Comm/Ent L.J. 587 (2001) in 13th Annual Computer Law Symposium: “Beta Testing the First Amendment: Balancing Intellectual Property and Freedom in a Networked Society”

Promises of Silence: Contract Law and Freedom of Speech, 83 Cornell L. Rev. 261 (1998)

Contractarians, Communitarians and Agnostics, 43 Am. J. Comp. L. 150 (1995) (reviewing Special Issue on the Corporate Stakeholder Debate: The Classical Theory and Its Critics, 43 U. Toronto L.J. No. 3) (peer-reviewed journal)

Taking the Other Road:  Polish Legal Education during the Past Thirty Years, 7 Temp. Int'l & Comp. L.J. 243 (1993) (co-authored)

Paramount: The Mixed Merits of Mush, 17 Del. J. Corp. L. 33 (1992)

Helping the Casualties of Creative Destruction:  Corporate Takeovers and the Politics of Worker Dislocation, 16 J. Corp. L. 249 (1991)

Evaluating State Anti-Takeover Legislation:  A Broadminded New Approach to Corporation Law or "A Race to the Bottom?,” 1990 Colum. Bus. L. Rev. 119 (1990)

State Competence to Regulate Corporate Takeovers: Lessons from State Takeover Statutes, 17 Hofstra L. Rev. 535 (1989)

Advising Directors on the D & O Insurance Crisis, 14 Sec. Reg. L.J. 130 (1986) (co-authored)

State Takeover Statutes, in Hostile Battles for Corporate Control, Vol. 1, New York:  Practising Law Institute, 59 (1986) (co-authored)

Affirmative Duty to Disclose Material Information Concerning Issuer's Financial Condition and Business Plans, 40 Bus. Law. 1243 (1985) (co-authored)

When the Court Awards Fees:  Time to Unload the Lodestar?, 7 Nat'l L. J. P.S6 col. 1 (July 8, 1985) (co-authored)

 

Bench Press Column

Is placing a cross on public property unconstitutional?, The news Journal, Feb. 25, 2109, at A24

Fight over Hill’s Israel comments is not helpful, The News Journal, Dec. 9, 2018, at A22

Abusive non-disclosure agreements like Trump’s need to be stopped, The News Journal, Aug. 22, 2018, available at https://www.delawareonline.com/story/opinion/contributors/2018/08/22/its-time-stop-abusive-non-disclosure-agreements-like-trumps/1061191002/

No Jeff Sessions, there isn’t a war on religion, The News Journal, Aug. 12, 2018, at A15

New Supreme Court justice should have an open mind, The News Journal, July 8, 2018, at A16

Trump’s forced patriotism has no place in a free society, The News Journal, June 17, 2018, at A17

Do Privacy Laws Apply to Cell Phones, The News Journal, Nov. 29, 2107, at A8

The Blessing of Separating Church and State, Sunday News Journal, July 9, 2017, at A19

Value of Valor: Soldier’s tenets should guide all Americans, Sunday News Journal, May 28, 2017, at A21

Supreme Conundrum, Sunday News Journal, April 2, 2017, at A21 (reproduced in USA TODAY online)

Who is the Check on Authoritarianism in the White House?, The News Journal, Feb. 25, 2107, at A7

The Supreme Court’s Brain Teaser, Sunday News Journal, Jan. 15, 2017, at A21(reproduced in USA TODAY online)

Trump’s Supreme Court, Sunday News Journal, Dec. 18, 2016, at A17

Some Advice for President-Elect Donald Trump, Sunday News Journal, Nov. 13, 2016, at A33

Test Your Knowledge of Church and State, The news Journal, Sept. 16, 2106, at A9

Equality: A Test on Equal Protection, The News Journal, Sept. 14, 2016, at A6

Implied vs. Fundamental Freedom: A Test, The News Journal, Sept. 13, 2107, at A7

A Quiz on Federal Power and States’ Rights, The News Journal, Sept. 12, 2016, at A7

Make it Count:Your Vote is Vital in Determining the Future of the Supreme Court, Sunday News Journal, July 10, 2016, at A17

Law and Religion Collide, Sunday News Journal, May 22, 2016, at A17

Advice & Consent: The Power Struggle behind the Merrick Garland’s Supreme Court Nomination, Sunday News Journal, Apr. 3, 2016 at A19

A Man of Honor, Sunday News Journal, Feb. 28, 2106, at A17

Labor unions and corporations both play their vital roles, Sunday News Journal, Jan. 10, 2016, at A17

Not all Black and White, Sunday News Journal, Dec. 6, 2015, at A19

The impact of “standing” is anything but boring, The News Journal, Nov. 2, 2015, at A6

Is it time to stop tinkering with the machinery of death?, The News Journal, Oct. 5, 2015

George Will’s Supreme Court History is Dubious, The News Journal, July 20, 2015

Will “Rule of Five’ End Marriage Debate?, The News Journal, July 13, 2015, at A9

Pondering the Death Penalty, Even for the Boston Bomber, The News Journal, May 24, 2015, at A25

When Should the Supreme Court Justices ‘Decide’ a Right?, The News Journal, Apr. 27, 2015, at A7

Are vanity license plates considered government speech or public speech?, The news Journal, Mar. 23, 2015, at A7

How Obamacare’s future rests on a single clause, The news Journal, Mar. 2, 2015, at A9

All Signs Points to a Headache When Court Hears this Case, The news Journal, Jan. 12, 2015, at A7

Should Musicians be Jailed for Their Threatening Lyrics?, The News Journal, Dec. 1, 2014, at A9

Who Speaks for the “People” on Policy?, The News Journal, Nov. 3, 2014, at A9

Supreme Court religious freedom case should give us pride, The News Journal, Oct. 6, 2014, at A10

Is Contraception Mandate ‘No Big Deal?,’ The News Journal, July 1, 2014, at A8

Here’s Some Malarky: Judges are Umpires, The News Journal, May 19, 2014, at A9

Instead of Government Truth Police, a Wiser Course is Informed Citizenry, The News Journal, April 21, 2014, at A9

Making the Case for Contraception over Religious Views, The News Journal, March 24, 2014, at A9

Who Deserves the Right to Decide on Abortion?, The News Journal, February 17, 2014, at A10

Court Considers Space Restrictions on First Amendment, The News Journal, Jan. 13, 2014, at A13

Justices Could Do Well to Heed a Father’s Example, The News Journal, Dec. 23, 2013, at A8

Supreme Court Wrestles with Prayer at Public Meetings, The News Journal, Nov. 4, 2013, at A10

Court to Decide if Voters Can Ban Affirmative Action, The News Journal, Oct. 14, 2013, at A10

Weighing One Constitutional Need Against Another, The News Journal, June 30, 2013, at A27

No Resolution in Sight in Debate on Gun-Control Laws, The News Journal, May 27, 2013, at A13

Same-Sex Marriage Case Puts High Court in a Pickle, The News Journal, Apr. 8, 2013, at A11

Marriage based on love and trust, not multiplying, The News Journal, Mar. 25, 2013, at A11

Tools to Fight Voter Suppression Still are Needed, The News Journal, Feb. 25, 2013, at A13

Supreme Court Takes on Tricky “Takings Clause,’ The News Journal, Jan. 14, 2013, at A9

Cheer on Separation of School, Religious Messages, The News Journal, Dec. 17, 2012, at A11

Supreme Court Ponders Drug-Detection Dog’s ‘Sniff Test,’ The News Journal, Oct. 29, 2012, at A17

Affirmative Action in Education Weighed Again, The News Journal, Oct. 8, 2012, at A13

The Fight for Free Speech, Even if It’s Offensive, The News Journal, Sept. 26, 2012, at A17

Health Care Back Where It Belongs – Before the Voters, The News Journal, July 3, 2012, at A11

Religious Right versus Government Interest, The News Journal, May 21, 2012, at A13

Obama Didn’t Deny Court’s Right of Review, The News Journal, Apr. 16, 2012, at A11

Liberty Isn’t the Issue in Health Care Case, The News Journal, Mar. 26, 2012, at A9

When is a Lie an Affront to the Law?, The News Journal, Feb. 20, 2012, at A11

Dropping F-bombs at the Supreme Court, The News Journal, Jan. 9, 2012, at A9

Gerrymandering and the High Court, The News Journal, Dec. 12, 2011, at A11

GPS Tracking and the Fourth Amendment, The News Journal, Nov.7, 2011, at A13

Church Autonomy versus Civil Rights, The News Journal, Oct. 3, 2011, at A13

What’s More Important than Wise Judges?  Wise Voters, The News Journal, June 30, 2011, at A8

Why Should a President have to be Natural-Born Citizen, The News Journal, May 24, 2011, at A10

Court’s Ruling Fiercely un-Madisonian, The News Journal, April 13, 2011, at A17

Conservative Justices Fails to See Corrupting Influence of Money, The News Journal, Mar. 28, 2011, at A9

Leave Health Care Law’s Validity up to Voters, The News Journal, Feb. 10, 2011, at A13

Honest Debate at the Core of the Constitution, The News Journal, Jan. 24, 2011, at A15

Thin Line between Fighting Crime, Respecting Rights, The News Journal, Jan. 10, 2011, at A13

In Efforts to Regulate Immigration, States Test Limits of Their Authority, The News Journal, Dec. 6, 2010, at A13

Don’t Be So Quick to Ban Violent Video Games, The News Journal, Nov. 2, 2010, at A11

Hate Funeral Protests?  Then Ignore Them, The News Journal, Oct. 4, 2010, at A13

Don’t Expect Kagan to Change Court Dynamic, The News Journal, July 1, 2010, at A12

Stevens Applied Common Sense, The News Journal, May 10, 2010, at A13

Conservative College Club Should be Open to Gays, The News Journal, Apr. 19, 2010, at A13

Elevating Civic Discourse, The News Journal, Mar. 8, 2010, at A13

Congress’ Power is Properly Vested, The News Journal, Feb. 24, 2010, at A15

Court’s Campaign-Financing Decision Endangers Democracy, The News Journal, Jan. 25, 2010, at A4

Separation of Santa and State is Smart, Fair, The News Journal, Dec. 23, 2009, at A21

Do Kids Belong in Prison, Sunday News Journal, Nov. 8, 2009, at A25

Animal Cruelty vs. Freedom of Speech, The News Journal, Oct. 12, 2009, at A17

Using Activism Appropriately, The News Journal, Oct. 5, 2009, at A15

 

Constitution Day Introductions in The News Journal

Hate Speech and the First Amendment, Sunday News Journal, Sept. 17, 2017, at A17

Constitutional Conundrums, Sunday News Journal, Sept. 11, 2016, at A17

Constitution Day 2015: All Americans citizens fall under ‘We the People,’ but who is really  included?, Sunday News Journal, Sept. 13, 2015, at A19

Constitution Day 2014: Are ‘We the People’ meeting our responsibilities?, The News Journal, Sept. 14, 2014, at A19

Constitution Day 2013: Can We Find a Balance Between Privacy and Security?, The News Journal, Sept. 15, 2013, at A25 (reprinted in THE COURIER JOUNAL (Louisville), Sept. 17, 2013; THE DESSERT SUN (Palm Springs), Sept. 16, 2013; THE PENSACOLA NEWS JOURNAL, Sept. 17, 2013; THE TOWN TALK (Alexandria, LA), Sept. 17, 2013; VISALIA TIMES-DELTA, Sept. 15, 2013).

Constitution Day 2012: What’s Wrong with U.S. Political System, THE SUNDAY NEWS JOURNAL, Sept. 16, 2012, at A29

Constitution Day 2011: The Constitution and Economic Policy, THE NEWS JOURNAL, Sept. 12, 2011, at A13           

Constitution Day 2010: A Criminal Justice System that Works, The News Journal, Sept. 12, 2010, at A25

Constitution Day 2009: The Future of Local News Reporting, Sunday News Journal, Sept. 13, 2009, at A19

Constitution Day 2007: ‘We the People” Through Young Eyes, SUNDAY NEWS JOURNAL, Sept. 16, 2007, at A13

Constitution Day 2006: A More Perfect Union, SUNDAY NEWS JOURNAL, Sept. 17, 2006, at A21

Articles in The Philadelphia Inquirer

Half-Baked Discrimination against Gays, Phila. Inquirer, Dec. 4, 2017, at A13

End the Confidentiality Agreements that Help Perpetuate Abuse, Phila. Inquirer, Nov. 15, 2017, at A13

This is Why We Protect Hate Speech, Phila. Inquirer, Aug. 25, 2107, at A15

Rights Bring Responsibility, PHILA. INQUIRER, Sept. 17, 2010, at A23

Perfectly Legal to Mandate the Purchase of Insurance, Phila. Inquirer, Nov. 27, 2011, at D5 (Sunday Currents Section)

Hate the Vile Campaign Ads? Blame the Supreme Court, PHILADELPHIA INQUIRER, Nov. 2, 2006, at A19

and on ‘Constitution Day,’ What to Celebrate, PHILADELPHIA INQUIRER, Sept. 16, 2005, at A21 (also published in CENTRE DAILY TIMES, September 16, 2005)

 

Miscellaneous Additional Op-eds

Trump’s NDA with Stormy Daniels is about Much More than Infidelity. What Else is He Hiding, NBC News THINK (March 9, 2018) at https://www.nbcnews.com/think/opinion/trump-s-nda-stormy-daniels-about-much-more-infidelity-what-ncna855341

Before Election Day, Some Reminders of America’s Greatness, PennLive, Nov. 5, 2016

When Religion and Law Conflict, Philadelpia Jewish Voice (2013), available at http://blog.pjvoice.com/diary/2929/when-religion-and-law-conflict 

Let’s Put Our Cards on the Table When It Comes to Israel, Jewish Exponent, Dec. 23, 2010, at 17

Should Race Matter When Rectifying Past Errors?, The News Journal, July 2, 2009, at A11

The Reality Behind Supreme Court Picks, The News Journal, June 10, 2009, at A13

Foul Language and Free Speech, The News Journal, May 7, 2009, at A15

After Two Centuries, Our ‘Better Angles’ Finally Learn to Speak, The News Journal, Nov. 11, 2008, at A11

Making Money Making Music, Sunday News Journal, Nov. 4, 2007, at A17

Independence Day Honors Lofty Concept and Hard-Won Reality, The News Journal, July 4, 2006, at E3                     

Science-Belief Tension is Natural, The News Journal, April 8, 2006, at A7

Judge Judges on How They Use Their Power, The News Journal, Nov. 18, 2005, at A15