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Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

Religion, Division, And The First Amendment, Richard W. Garnett

Richard W Garnett

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Richard W Garnett

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

The Disincorporation Proclamation: Emancipating The Establishment Clause From The Fourteenth Amendment, Martin Wishnatsky

Martin Wishnatsky

No abstract provided.

The Categorical Approach To Protecting Speech In American Constitutional Law, Daniel A. Farber

Daniel A Farber

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Anonymity Is The Battlefield: Practical And Legal Considerations In The Fight For Free Expression On The Web, Dan Massoglia

Dan Massoglia

No abstract provided.

Religious Pretenders In The Courts: Unmasking The Imposters, John O. Hayward

John O. Hayward

When courts decide First Amendment “Free Exercise” cases, they often are confronted with the daunting task of defining what exactly is a “religion.” This article examines how judicial definitions and interpretations of religious faith have evolved over many decades, including legal recognition of Wicca (modern day witchcraft) and Hare Krishna as “religions,” as well as courts steering clear of the issue whenever possible, for example, when faced with an adherent of the “Church of Body Modification” who claims her employer’s dress code violates her religion. It also explores how courts have sought to uncover deception and fraud hiding behind disingenuous …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education LEWIS M. WASSERMAN Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

A Comprehensive Approach To Bridging The Gap Between Cyberbullying Rules And Regulations And The Protections Offered By The First Amendment For Off-Campus Student Speech, Vahagn Amirian

Vahagn Amirian

No abstract provided.

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

"Kill The Sea Turtles" And Other Things You Can't Make The Government Say, Scott W. Gaylord

Scott W. Gaylord

In Pleasant Grove City v. Summum, the Supreme Court confirmed that there is no heckler’s veto under the government speech doctrine. When speaking, the government has the right to speak for itself and to select the views that it wants to express. But the Court acknowledged that sometimes it is difficult to determine whether the government is actually speaking. Specialty license plates have proven to be one of those difficult situations, raising novel and important First Amendment issues. Six circuits have reached four separate conclusions regarding the status of messages on specialty license plates. Three circuits have held that …

The First Amendment Structure For Speakers And Speech, Charles W. Rhodes

Charles W Rhodes

A noticeable trend in the Roberts Court’s free speech decisions is heightened attention to the dimensions of the First Amendment. From holding false factual statements, violent video games, and depictions of animal cruelty are covered by the First Amendment, to determining that a legislator’s vote, governmental acceptance of a monument, and a law school’s refusal to allow access to military recruiters are not, the Court has highlighted the importance of evaluating both the scope of the First Amendment and the appropriate attribution of communicative efforts. But the Court has failed to announce an overarching structural framework for resolving these prefatory …

Anatomy Of The Reasonable Observer, Jessie Hill

Jessie Hill

The “reasonable observer”—the fictional person from whose perspective we are to judge whether a governmental display or practice violates the Establishment Clause—has been under fire for decades. Primarily, critics argue that the reasonable observer, as conceived by the Supreme Court, is incapable of representing a community perspective because he does not sufficiently resemble a flesh-and-blood person. This criticism can be further articulated as two specific complaints: first, that too much knowledge is imputed to the reasonable observer, making him more omniscient than the average passerby; and second, that the reasonable observer, like the average judge, is biased toward a majoritarian …

The Conspiracy Origin Of The First Amendment, Steven R. Morrison

Steven R Morrison

Scholars and jurists have misunderstood the import of three seminal 1919 First Amendment cases—Schenck v. United States, Frohwerk v. United States, and Abrams v. United States—as primarily free speech cases. They are better understood as free assembly cases. This is important for two reasons. First, individuals’ speech has the intended First Amendment effect only when speakers combine into groups. Second, the 1919 cases were the beginning of substantive First Amendment law, and so have resulted in a First Amendment jurisprudence that favors individual rights over group rights. This is a constitutional and normative mistake. Combined with the first reason, the …

Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman

Stephen J Elkind

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

"Merchants Of Discontent": An Exploration Of The Psychology Of Advertising, Addiction, And The Implications For Commercial Speech, Tamara R. Piety

Tamara R. Piety

In this paper, I attempt to draw parallels between the psychology of commercial advertising and marketing and the psychology of addiction. Both appear to be characterized by denial, escapism, narcissism, isolation, insatiability, impatience, and diminished sensitivity. Advertising appeals to these impulses and addiction is marked by them. In what follows, I explore these parallels in general and then explore the potential consequences or side effects in three specific contexts: the advertising of addictive products, advertising and children, and advertising and women. In these three areas, there is some evidence that advertising may be contributing to negative social phenomena in a …

A Corporation Has No Soul - The Business Entity Law Response To Challenges To The Contraceptive Mandate Under The Ppaca, Thomas E. Rutledge

Thomas E. Rutledge

The most contentious matter in the implementation of the Patient Protection and Affordable Care Act (the “PPACA”) is not a question of health care, but rather one of the law of business organizations. The dispute has been over the requirement that group health insurance plans provide, on a no-cost sharing basis, coverage for a variety of procedures and prescription medicines involving contraception and what are described as “abortificants.”

The class of suits subject to this discussion were filed by what are not religious organizations but rather for-profit business ventures, asserting that they should be exempt from the requirements of the …

Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz

Martin A. Schwartz

"The purpose of this presentation is to examine two recent Supreme Court decisions, Connick v. Thompson and Ashcroft v. Iqbal with an eye to their impact on how lower federal courts will assess such claims in the wake of new constraints imposed by these cases. The focus of the discussion will be on developments in single-incident liability cases after Connick and supervisory liability claims after Iqbal."

Use "The Filter You Were Born With": The Unconstitutionality Of Mandatory Internet Filtering For The Adult Patrons Of Public Libraries, Richard J. Peltz-Steele

Richard J. Peltz-Steele

The only federal court (at the time of this writing) to consider the question ruled unconstitutional the mandatory filtering of Internet access for the adult patrons of public libraries. That 1998 decision helped the American Library Association and other free speech advocates fend off mandatory filtering for two years at the state and federal level, against the vigorous efforts of filtering proponents. Then, in 2000, the U.S. Congress conditioned federal funding of libraries on filter use, forcing the question into the courts as the latest colossal struggle over Internet regulation. This Article contends that the federal court in 1998 was …

Internet Control Or Internet Censorship? Comparing The Control Models Of China, Singapore, And The United States To Guide Taiwan’S Choice, Jeffrey Li

Jeffrey Li

Internet censorship generally refers to unjustified online speech scrutiny and control by the government or government-approved measures for Internet control. The danger of Internet censorship is the chilling effect and the substantial harm on free speech, a cornerstone of democracy, in cyberspace. This paper compares China’s blocking and filtering system, the class license system of Singapore, and the government-private partnership model of the United States to identify the features, and pros and cons of each model on the international human rights. By finding lessons from each of the model, this paper suggests Taiwan should remain its current meager internet control …

2002 U.S. Supreme Court Term Includes Zoning Referendum Case, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford

George B. Crawford

No abstract provided.

U.S. Asylum Law As A Path To Religious Persecution, Jack C. Dolance Ii

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark however — at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion” — in whatever form that religion may take. In the asylum context, then, “religion” must be …

Tactics, Strategies & Battles—Oh My!: Perseverance Of The Perpetual Problem Regarding Preaching To Public School Pupils & Why It Persists, Casey S. Mckay

Casey Scott McKay

After reviewing the history of the religious war on Darwin’s Theory of Evolution, my article, “Tactics, Strategies & Battles—Oh My!: Perseverance of the Perpetual Problem Regarding Preaching to Public School Pupils & Why it Persists,“ examines why such a seemingly well-settled issue survives and, to some extent, succeeds.

First, by exploiting common misconceptions among the American public, lawmakers are able to take advantage of ignorance driven by strong emotions. Next, religious special interests groups, with seemingly unlimited funds, thrust propaganda supported by worldwide media reinforcement on an already vulnerable American public. Thus, irresponsible state legislators, caught between a rock and …

For-Profit Corporations, Free Exercise, And The Hhs Mandate, Scott W. Gaylord

Scott W. Gaylord

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the fifteen cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free …

Dancing Around Equality: Public Schools And Prejudice At The Prom, Jeffrey S. Thomas

Jeffrey S. Thomas

No abstract provided.