Lolly Gasaway Faculty-Student Writing Award
The Order of the Coif presents one award each year for exceptional scholarship authored collaboratively by a student and a faculty member. The award celebrates the high level of intellectual achievement at its member schools.
Award winners’ scholarship must be of the highest quality. The work shall exhibit originality, in-depth thought and analysis, and professional writing. It must make a substantial contribution to the scholarly discourse. At least one student and one faculty member must be named as primary authors of the work.
The Lolly Gasaway Student-Faculty Scholarship Award was established in 2022 to honor Lolly Gasaway for her many years of exceptional service to the Order of the Coif as Treasurer-Secretary. Lolly Gasaway retired from this role in 2022.
2025 Gasaway Award Winner
The First Amendment and Constitutive Rhetoric: A Policy Proposal by Lucy Williams & Mason Spedding was published in volume 99 of the New York University Law Review in 2024.
From the abstract:
First Amendment law is heavily influenced by a familiar set of policy considerations. Courts often defend their First Amendment rulings by referencing speech’s place within a “marketplace of ideas.” They consider whether speech facilitates self- governance or furthers society’s search for truth. They weigh the relative value of certain types of speech. And so on.
The Supreme Court has used these policy arguments to resolve and craft rules for many free speech dilemmas. But in some situations, existing policy arguments have generated rules and rulings that are incoherent, ineffective, or insufficient to address the underlying free speech problem. In this Article, we propose a new policy approach to aid courts in these situations. Specifically, we argue that in addition to traditional policy arguments, courts could and should use constitutive rhetorical theory when addressing and resolving today’s novel free speech dilemmas. Constitutive rhetorical theory views language as a process of meaning-making and culture building. It does not treat language only as a tool for persuasion or communication but instead emphasizes the ways language assigns value, creates communities, forges shared identities, and mediates human experiences. In this Article, we suggest that courts and legislatures should use constitutive rhetorical theory to supplement their traditional policy considerations. If judges take seriously the idea that language creates, rather than simply communicates, they might choose to restrict or protect speech not only because of its message or persuasive effects but also because of its constitutive, creative potential.
Our argument proceeds in four parts. In Part I, we review existing First Amendment policy arguments and describe their rhetorical underpinnings. We then present constitutive rhetorical theory as an alternative approach. In Part II, we discuss several contexts where the Court has hinted at, though not explicitly adopted, a constitutive rhetorical approach. In Part III, we apply a constitutive rhetorical lens to three First Amendment problems—hate speech, fighting words, and nonconsensual pornography—to show how the constitutive model might clarify or improve the law in those areas. In Part IV, we discuss the implications and limitations of our argument.
The First Amendment and Constitutive Rhetoric: A Policy Proposal
by Lucy Williams & Mason Spedding
2025 Gasaway Award Honorable Mention
The Non-Obvious Razor & Generative AI by Raina Haque, Simone Rose & Nick DeSetto was published in volume 25 of the North Carolina Journal of Law & Technology in 2024.
From the abstract:
This Article examines the challenges and prospects of crowd‑sourcing generative artificial intelligence (“GenAI”) systems in patent law as human and machine creativity become seamless. As GenAI technologies like GPT-4 become ubiquitous, AI-generated solutions will be less innovative and will complicate tenets about patentability. An evolution of patent law’s non-obviousness standard provides an elegant solution––borrowing from philosophy, a “razor”––to address the impact of advanced artificial intelligence (“AI”) on the innovation process. This Article’s thesis is distinct from the United States Patent and Trademark Office’s (“USPTO”) emphasis on whether or not AI systems can be inventors, because it assumes that human and artificial creativity will become indistinguishable. This Article focuses on a reevaluation of utility patent law’s non-obviousness standard in light of the steady societal shift toward broad information and technological empowerment. By exploring GenAI’s role in augmenting creativity and its implications for the standard of “ordinary creativity,” this Article suggests factors for a revised patentability examination methodology.
This reevaluation seeks to balance AI’s rapid advances with patent law’s goals to promote progress. There is precedent for the non-obviousness standard to absorb advancements in artificial intelligence that rely on crowd-sourced information. GenAI challenges traditional notions of invention and creativity. The legal construct against which “non-obviousness” is determined––the ordinary creativity of the “person of ordinary skill in the art” (“PHOSITA”)––should be recalibrated to account for GenAI and to encourage innovation while protecting public access to tools of creativity.