Toni M Massaro
- Professor, Law
- Regents Professor
- Endowed Chair, Milton O Riepe-Constitutional Law
- Member of the Graduate Faculty
- Executive Director, Agnese Nelms Haury Program in Environment / Social Justice
- J.D. Law
- College of William and Mary, Marshall-Wythe School of Law
- Northwestern University
- University of Arizona James E. Rogers College of Law (1989 - Ongoing)
- Stanford University (1989)
- UNC Chapel Hill School of Law (1989)
- University of Frankfurt (1987)
- University of Florida School of Law (1984 - 1989)
- Washington and Lee University (1982 - 1984)
- Vedder,Price, Kaufman and Kammholz (1980 - 1982)
- Weaving Beautiful Lives: Women’s Plaza of Honor Bench
- SBS, Law, ENS, Haury Program, Spring 2022
Licensure & Certification
- Member, American Law Institute (2008)
- Member of the Bar, Supreme Court Bar (1989)
- Supreme Court Bar (2006)
- Member (inactive), Illinois State Bar (1980)
Constitutional Law, Freedom of Expression, Equal Protection, State Action Doctrine
Freedom of Expression
Freedom of Speech & ExpressionLAW 615B (Spring 2023)
Substantial PaperLAW 692 (Fall 2022)
Constitutional Law ILAW 606 (Spring 2022)
Freedom of Speech & ExpressionLAW 615B (Spring 2022)
Independent StudyLAW 699 (Spring 2022)
Constitutional Law ILAW 606 (Spring 2021)
Freedom of Speech & ExpressionLAW 615B (Spring 2021)
Independent StudyLAW 699 (Spring 2021)
Independent StudyLAW 699 (Fall 2020)
Constitutional Law ILAW 606 (Spring 2020)
Equal ProtectionLAW 615D (Spring 2020)
Independent StudyLAW 699 (Spring 2020)
Substantial Paper SmnrLAW 696N (Spring 2020)
Freedom of Speech & ExpressionLAW 615B (Fall 2019)
Independent StudyLAW 699 (Fall 2019)
Substantial Paper SmnrLAW 696N (Fall 2019)
Constitutional Law ILAW 606 (Spring 2019)
Equal ProtectionLAW 615D (Spring 2019)
Independent StudyLAW 699 (Spring 2019)
Freedom of Speech and ReligionLAW 615E (Fall 2018)
Independent StudyLAW 699 (Fall 2018)
Substantial Paper SmnrLAW 696N (Fall 2018)
Constitutional Law ILAW 606 (Spring 2018)
Equal ProtectionLAW 615D (Spring 2018)
Independent StudyLAW 699 (Spring 2018)
Presidential PowerLAW 615A (Spring 2018)
Freedom of Speech and ReligionLAW 615E (Fall 2017)
Independent StudyLAW 699 (Fall 2017)
Honors ThesisPHIL 498H (Summer I 2017)
Constitutional Law ILAW 606 (Spring 2017)
Honors ThesisPHIL 498H (Spring 2017)
Substantial Paper SmnrLAW 696N (Spring 2017)
Constitutional Law ILAW 606 (Spring 2016)
Equal ProtectionLAW 615D (Spring 2016)
Independent StudyLAW 699 (Spring 2016)
- Massaro, T. M. (2021). Civil Procedure. Aspen.
- Massaro, T. M., Spaulding, N. W., & Babcock, B. A. (2019). Cases and Materials on Civil Procedure (7th edition). Aspen.
- Massaro, T. M., Spaulding, N. W., & Babcock, B. A. (2015). Civil Procedure: Cases and Materials (2015 update). Aspen.
- Massaro, T. M., & Norton, H. (2019). Artificial Intelligence and the First Amendment. In Research Handbook of Artificial Intelligence and Law (Barfield & Pagallo, eds)(pp 26 pages).
- Massaro, T. M., Babcock, B., & Spaulding, N. (2019). Due Process and Race (with B. Babcock and N. Spaulding). In Critical Theory and Civil Procedure (B. Coleman, E. Porter and P. Pedro, eds.)(pp 20 pages).
- Massaro, T. M., Pidot, J. R., & Slepian, M. J. (2022). Pandemics and the Constitution. University of Illinois Law Review, 2022(1), 229-277.
- Massaro, T. M., Slepian, M. J., Pidot, J. R., & Massaro, T. M. (2022).
Constitutional Norms for Pandemic Policy. University of Illinois Law Review, 2022(1), 229-276. doi:10.2139/SSRN.3635668More infoThe COVID-19 pandemic has unleashed a torrent of legal and political commentary, and rightly so: the disease touches every corner of life and implicates all areas of law. In response to the disease, governments, civic institutions, and businesses have struggled to protect public health, respect individual autonomy, and enable Americans to satisfy their elemental instinct to congregate with one another. Public perceptions about the disease, and our responses to it, have substantially fallen along predictable ideological lines. For example, the willingness of individuals to social distance may indicate something about their risk tolerance, but also about their political affiliation. Our ability to launch a unified response to COVID-19 has, in other words, been affected by rifts that generally infect American political life. How we manage these divides over pandemic response matters, because the costs of disunity are high. Those who fear the risk COVID-19 poses to their lives depend on others to participate in mitigation efforts; those who fear the risk our response to COVID-19 poses to their livelihoods depend on others to willingly reengage in economic life. Common ground, while elusive, is essential to America’s response to this pandemic, and the next one that will surely follow. We argue that ingredients for consensus already exist, even if they are obscured by political and policy rancor. Americans share the common goal to safely return to families, jobs, schools, places of assembly, pubs, parks, and the myriad of other settings that make up human lives and we share a fidelity to basic constitutional legal norms that can inform how we safely return. This Essay identifies four constitutional principles to shape pandemic policies and enable them to garner broad public acceptance: substantive and procedural rationality, respect of fundamental liberties, equal treatment, and flexibility to enable government to nimbly and effectively address emergencies that threaten life itself. Fidelity to these norms is essential for all institutions, public and private, because reopening safely can occur only through the cooperation of private individuals, and individuals will cooperate only if they have confidence in the ability of institutions to protect safety, liberty, and equality.
- Massaro, T. M., & Norton, H. (2021). Free Speech and Democracy: A Primer for 21st Century Reformers. UC Davis Law Review, 54.
- Massaro, T. M., Pidot, J., & Slepian, M. (2020).
Constitutional Norms for Pandemic Policy. SSRN Electronic Journal. doi:10.2139/ssrn.3635668
- Massaro, T. M., & Milczarek-desai, S. (2019). Constitutional Cities: Sanctuary Jurisdictions, Federalism and Individual Liberty. Columbia Human Rights Law Review, 50:1, 102 pages.
- Massaro, T. M. (2017). Chilling Rights. Colorado Law Review, 88(1), 64.
- Massaro, T. M., & Brooks, E. E. (2017). Flint of Outrage. Notre Dame Law Review, 93, 58.More infoAnalysis of constitutional issue regarding water contamination in Flint, MI.
- Massaro, T. M., Norton, H., & Kaminskie, M. E. (2017). Siri-ously 2.0: What Artificial Intelligence Reveals About the First Amendment. Minnesota Law Review, 101(6), 47.More infoThis is an in-depth follow-up to Siri-ously.1, incorporating feedback and critiques from presentations, especially from We, Robot! Conference.Analysis of free speech theories and their surprising inability to rule out free speech rights for A.I.
- Massaro, T. M. (2016). The Lawfulness of the Same-Sex Marriage Decisions: Charles Black on Obergefell. William & Mary Bill of Rights Journal, 25(321), 22.
- Massaro, T. M., & Norton, H. L. (2016). Siri-ously: Free Speech Rights of Artificial Intelligence. Northwestern Law Review, 110(5), 27.
- Bambauer, J. R., & Massaro, T. M. (2015). Outrageous and Irrational. 100 MINNESOTA LAW REVIEW 1(281).
- Massaro, T. M. (2015). Nuts and Seeds. Denver Law Review, 92(2), 325-362.
- Massaro, T. M., & Bambauer, J. (2015). Outrageous and Irrational. Minnesota Law Review, 100, 281-354.
- Massaro, T. M. (2011). Foreign nationals, electoral spending, and the first amendment. Harvard Journal of Law and Public Policy, 34(2), 663-703.
- Massaro, T. M. (1998). Reviving Hugo Black? The court's "jot for jot" account of substantive due process. New York University Law Review, 73(4), 1086-1121.More infoAbstract: In Graham v. Connor, the United States Supreme Court held that the Fourth Amendment effectively preempts any substantive due process claims that law enforcement officers used excessive force in the course of an arrest. Graham's disarmingly simple rationale was that an explicit textual provision trumps a more general constitutional provision. Professor Massaro argues that this rationale, as subsequently invoked by the Supreme Court and expansively applied by the lower courts in First, Fourth, Fifth, and Eighth Amendment cases, may ultimately have a pervasive impact on substantive due process. At the very least, the logic of Graham requires that substantive due process be confined to its current doctrinal limits. Carried to its furthest extreme, Graham requires overruling the Court's substantive due process "unenumerated rights" caselaw altogether. The author argues that Graham is an analytical and doctrinal oddity, inconsistent with well-accepted and regularly enforced principles of constitutional interpretation, that should be overruled rather than used to revive Hugo Black's "jot for jot" account of substantive due process.
- Massaro, T. M. (1997). The meanings of shame: Implications for Legal Reform. Psychology, Public Policy, and Law, 3(4), 645-704.More infoAbstract: This article describes and critiques the recent revival of interest in shame and shaming in various contexts, including criminal punishment. In particular, it addresses criminal sanctions that require defendants to wear signs in public, or to otherwise advertise their convictions. The article begins with the work of culture critics who claim that Americans have become shameless in ways that undermine important social and legal goals. The author takes issue with these critics and warns against legal reforms based on their provocative but potentially destructive call to shame. The author argues that the culture critics tend to conflate three terms: shame, shaming, and shameful and explains why separation of these terms is crucial to meaningful discussions about whether Americans have "lost" their sense of shame or should be shamed for violating social or legal norms. The author then develops the psychological and the anthropological meanings of shame, uses this backdrop to evaluate all three terms, and speculates about the likely individual and social consequences of official shaming techniques. The insight of these materials is that shame is a sophisticated, context-sensitive, and potentially highly destructive emotion. Only in certain cultural settings is official shaming likely to prove an effective or humane method of enforcing norm observation. Finally, the author applies these insights to the use of shaming penalties by courts in criminal cases and concludes that American criminal courts may be ill-equipped to exploit offender or audience shame vulnerabilities in a way that makes practical or moral sense.
- Massaro, T. M. (1996). Gay Rights, Thick and Thin. Stanford Law Review, 49(1), 45-.More infoAbstract: In this article, Professor Massaro observes that constitutional bases for gay rights have rested primarily on "thick" doctrine - First Amendment, privacy, and equal protection caselaw - in an effort to secure strict scrutiny of antigay measures. Although attractive in some respects, these arguments pose significant risks of double-binds and boomerangs in the long run, even if they yield short-term legal victories. Moreover, "thick" arguments are sufficiently porous to support judges' chilly responses to gay rights - responses that cannot be explained by inexorable doctrinal logic, but instead arise from hostility toward homosexuality in particular, and ignorance about sexuality in general. Thus, Professor Massaro argues for invoking "thin" doctrine - rational basis analysis - to expose these underlying factors. "Thin" doctrine directs judicial attention away from distracting doctrinal complexities and toward the central issue: "What is wrong with homosexuality?" Thin doctrine answers this question by posing fewer risks of double-binds, avoiding attempts to define homosexuality, and requiring minimal revision of the existing doctrinal structure. Finally, responses to this question are framed by consulting emerging interdisciplinary work that grapples with the unreason of Bowers v. Hardwick. The recent decision of Evans v. Romer is an important illustration of how thin doctrine can succeed where more ornate legal theories fail.
- Massaro, T. M. (1986). Continuing competency--regulatory alternatives.. Issues (National Council of State Boards of Nursing (U.S.)), 7(4), 8-10.More infoPMID: 3641794;
- Reed, M. E., & Massaro, T. M. (1982). The surgeon's liability as a Good Samaritan.. Bulletin of the American College of Surgeons, 67(7), 22-23, 30.More infoPMID: 10255858;
- Reed, M. E., & Massaro, T. M. (1981). Legal aspects of patient confidentiality.. Bulletin of the American College of Surgeons, 66(7), 17-18.More infoPMID: 10251705;
- Reed, M. E., & Massaro, T. M. (1981). When to refer a patient to a specialist.. Bulletin of the American College of Surgeons, 66(5), 37-38.More infoPMID: 10250886;
- Massaro, T. M. (2020. Freedom of Speech and the Academy.More info"Freedom of Speech and the Academy," Rod Smolla. Reviewed for Cambridge Press.
- Massaro, T. M. (2020. The Poisoned City: Flint’s Water And The American Urban Tragedy.More infoBook Review, "The Poisoned City: Flint’s Water And The American Urban Tragedy"(Author: Anna Clark) Rutgers J Crim L & Justice, March 2020
- Massaro, T. M. (2020. Review of book proposal - Bridging Divides: The Path to Empathy in a Divided Country.More infoManuscript review for Givens/Bristol University PressReview of Book ProposalAuthor: Terri Givens, Ph.D.Title: Bridging Divides: The Path to Empathy in a Divided Country
- Massaro, T. M. (2020. Various media requests and replies on Constitutional Law topics. KVOA, NPR, Tucson Daily Star, Politico, et al.
- Massaro, T. M. (2020. Where the Constitution and COVID-19 intersect. AZ Public Media - Christopher Conover. Tucson: University of Arizona. https://news.azpm.org/p/coronavirus/2020/8/3/177702-where-the-constitution-and-covid-19-intersect/
- Massaro, T. M. (2019. Interviewed in "Donald Trump Declares 'National Emergency'". Newsweek. https://www.newsweek.com/donald-trump-national-emergency-border-wall-1333130More infoQuoted in"Donald Trump Declares 'National Emergency'," Newsweek, 2/15/2019
- Massaro, T. M. (2019. Various other media requests and replies. KVOA, NPR, Tucson Daily Star, Politico, et al.
- Massaro, T. M. (2018. Interview on Artificial Intelligence and Free Speech. NPR.
- Massaro, T. M. (2018. Interview on Travel Ban and DACA. Law 360.
- Massaro, T. M. (2018. Interviewed in "Do Bots Have First Amendment Rights?". Politico. https://www.politico.com/magazine/story/2018/11/27/bots-first-amendment-rights-222689More infoQuoted for Politico article, "Do Bots Have First Amendment Rights?"
- Massaro, T. M. (2018. Interviewed in "Is That Tweet from a Human?". Philadelphia Inquirer. https://www.inquirer.com/politics/nj-bot-bill-disclosure-proposal-law-social-media-free-speech-20181228.htmlMore infoQuoted in "Is That Tweet from a Human? NJ Lawmaker Wants Bots to Identify Themselves, But Experts Have Concerns," Philadelphia Inquirer, 12/28/2018.
- Massaro, T. M., & Coan, A. B. (2018. "Mathew Whitaker's Supreme Court Opinions are Incoherent, May Cause Constitutional Crisis". USA Today. https://www.usatoday.com/story/opinion/2018/11/14/matthew-whitaker-acting-attorney-general-supreme-court-constitutional-crisis-column/1977742002/
- Massaro, T. M. (2017. "Fast Five: Indictments Heat Up Russia Collusion Investigation". Daily Wildcat, University of Arizona. http://www.wildcat.arizona.edu/article/2017/11/n-fast-five-indictmentsMore infoQuoted in "Fast Five: Indictments Heat Up Russia Collusion Investigation," Daily Wildcat, 11/7/2017
- Massaro, T. M. (2017. Interview regarding free speech in aftermath of Charlottesville protest. NY Public Radio.
- Massaro, T. M. (2016. NPR Marketplace (Tech) Radio interview.More infoNPR Marketplace (Tech) radio interview, broadcast nationally on free speech rights of A.I.
- Massaro, T. M. (2016. Wall Street Journal interview & story on free speech rights of A.I., online.More infoWall Street Journal - Interview and story on free speech rights of A.I., online
- Massaro, T. M. (2015. Arizona Daily Star, Arizona Republic and Arizona Wildcat interviews.More infoMultiple interviews with Arizona Daily Star, Arizona Republic and Arizona Wildcat reporters on various constitutional issues over the past two years.
- Massaro, T. M. (2015. New Republic interview.More infoInterview with New Republic writer on revival of shaming penalties
- Massaro, T. M. (2022. “White House Takes Aim at Environmental racism, But Won’t Mention Race”. Newspaper InterviewNew York Times.
- Massaro, T. M. (2020, July). Constitution Has Answers for Balancing Health and Liberties Amid COVID-19, Experts Say. UArizona News. https://news.arizona.edu/story/constitution-has-answers-balancing-health-and-liberties-amid-covid-19-experts-say
- Massaro, T. M. (2020, July). Coronavirus and Constitutional Law. BBC.
- Massaro, T. M. (2021, December). DIGGING DEEPER: Can Your Employer Require You to get the COVID-19 Vaccine?. KVOA. https://kvoa.com/news/2020/12/10/digging-deeper-can-your-employer-require-you-to-get-the-covid-19-vaccine/
- Massaro, T. M., Babcock, B., & Spaulding, N. (2019). Due Process and Race (with B. Babcock and N. Spaulding). Critical Theory and Civil Procedure (B. Coleman, E. Porter and P. Pedro, eds.).
- Massaro, T. M., Resnik, J., Vladeck, S. I., Feder, M., Levine, S. L., Rice, A. K., Lindberg, C. N., Temkin, E. M., & Kaufman, A. L. (2018, March). Amicus Brief in United States v. Sanchez-Gomez. United States Supreme Court.
- Massaro, T. M. (2017, February). Amazon Argues Alexa Speech Protected By First Amendment In Murder Trial Fight. Forbes. https://www.forbes.com/sites/thomasbrewster/2017/02/23/amazon-echo-alexa-murder-trial-first-amendment-rights/#37dc69ef5d81More infoQuoted in Forbes magazine article making reference to published paper "Siri-ously? Free Speech Rights and Artificial Intelligence," (Massaro, Toni M. and Norton, Helen L., Siri-ously? Free Speech Rights and Artificial Intelligence (October 4, 2016). 110 Northwestern University Law Review 1169 (2016)).
- Massaro, T. M. (2017, June). Free Speech Rights of Anti-Muslim Protesters. NYC NPR.
- Massaro, T. M. (2017, spring). Q&A on Immigration Policies in the City of Tucson for Vice Mayor Romero.
- Massaro, T. M. (2017, spring). Testimony. The AZ State Legislative Federalism Committee on Constitutional Conventions.
- Massaro, T. M., Kaminski, M. E., & Norton, H. (2017, March). Does Alexa Have Free Speech Rights? On the First Amendment and artificial intelligence.. Slate. http://www.slate.com/articles/technology/future_tense/2017/03/does_amazon_s_alexa_have_free_speech_rights.html
- Massaro, T. M. (2016, February). Amicus Brief of First Amendment Legal Scholars, Wikimedia FDN v. NSA.
- Massaro, T. M. (2016, November). At Federalist Society, Scholar Casts Scalia's Sharp Rhetoric in Negative Light, Q&A with Tony Mauro. The National Law Journal - Supreme Court Brief. Mauro, T. (2016, November 22). At Federalist Society, Scholar Casts Scalia's Sharp Rhetoric in Negative Light. Retrieved July 06, 2017, from http://www.nationallawjournal.com/supremecourtbrief/id=1202773027992More infoInterviewed by Tony Mauro for the Supreme Court Brief, the National Law Journal.