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Law And Redemption: Expounding And Expanding Robert Cover’S Nomos And Narrative, Samuel J. Levine
Law And Redemption: Expounding And Expanding Robert Cover’S Nomos And Narrative, Samuel J. Levine
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This Article explores two interrelated themes that distinguish much of Robert Cover's scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover's, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover's foundation, …
The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine
The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine
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No abstract provided.
A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine
A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine
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This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes …
Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine
Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine
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In 1986, the United States Supreme Court handed down a 5-4 decision ruling that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion. The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. Yet, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the case, which differs in significant …
Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine
Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine
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In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …
Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine
Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine
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In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the …
The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine
The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine
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Although the current state of the United States Supreme Court's Religion Clause jurisprudence is an area of considerable complexity, the Court's approach is largely premised upon a number of basic underlying principles and doctrines. This Symposium issue explores an underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate the Court's approach. The …
Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine
Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine
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In his 1986 Yale Law Journal article, Robert Cover wrote of an explosion of legal scholarship placing interpretation at the crux of the enterprise of law. As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community. Levine looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the …
Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine
Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine
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In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief. While the Justices have articulated valid concerns concerning these cases, courts should not allow these concerns to deter them from making decisions vital to the effective adjudication of Free Exercise and Establishment Clause cases. In fact, it appears that as a result of the Court's increasing refusal to consider carefully the religious questions central to many cases, the Court often tends to group together religious claims and practices, regardless of the relative …
Religious Symbols And Religious Garb In The Courtroom: Personal Values And Public Judgments, Samuel J. Levine
Religious Symbols And Religious Garb In The Courtroom: Personal Values And Public Judgments, Samuel J. Levine
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As a nation that values and guarantees religious freedom, the United States is often faced with questions regarding the public display of religious symbols. Such questions have arisen in a number of Supreme Court cases, involving both Establishment Clause and Free Exercise Clause issues. Since 1984, the Court has considered the constitutionality of the display of religious symbols such as a creche, a menorah, and a cross in public areas. The Court has also considered the constitutionality of Air Force regulations that prohibited a clinical psychologist from wearing a yarmulke. Parallel to the Supreme Court cases, a number of federal …
Reflections On The Constitutional Scholarship Of Charles Black: A Look Back And A Look Forward, Samuel J. Levine
Reflections On The Constitutional Scholarship Of Charles Black: A Look Back And A Look Forward, Samuel J. Levine
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Charles L. Black Jr. has been one of the most important constitutional scholars in the United States for more than four decades. Professor Black's writings have helped shape the debate in a wide variety of constitutional areas, from racial equality and welfare rights to constitutional amendment, impeachment, and the death penalty. In this essay, Levine briefly surveys a number of Professor Black's articles, focusing on two areas of his scholarship: unnamed human rights and racial justice. By analyzing these two topics, which represent, respectively, Black's most recent scholarship and his most significant early work, Levine attempts to show certain principles …
Toward A Religious Minority Voice: A Look At Free Exercise Law Through A Religious Minority Perspective, Samuel J. Levine
Toward A Religious Minority Voice: A Look At Free Exercise Law Through A Religious Minority Perspective, Samuel J. Levine
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Legal scholars have recently advanced theories emphasizing the importance of perspectives in the law. Perspective scholarship recognizes that laws are necessarily shaped by society's dominant forces, including its biases and preconceptions. Perspective scholars attempt to understand how these forces have shaped our laws, and they suggest changes to accommodate those affected by society's biases. In this Article, Professor Levine introduces the concept of a religious minority perspective. He develops the concept of a religious minority perspective in the context of several, prominent Free Exercise cases. Professor Levine discusses these cases in his presentation of the central themes of a religious …
Restricting The Right Of Correspondence In The Prison Context: Thornburgh V. Abbott And Its Progeny, Samuel J. Levine
Restricting The Right Of Correspondence In The Prison Context: Thornburgh V. Abbott And Its Progeny, Samuel J. Levine
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In Thornburgh v. Abbott, the Supreme Court upheld the constitutionality of regulations that allowed prison officials to reject certain publications sent by publishers to prisoners. Finding the regulations reasonably related to legitimate penological interests, the Court for the first time applied a reasonableness standard to restrictions that directly affected the First Amendment rights of nonprisoners. Part I of this Note briefly reviews the instrumental Supreme Court decisions addressing First Amendment rights in the prison context. This Part traces the development of the standard of review for prison regulations that restrict First Amendment freedoms for both prisoners and nonprisoners. It concludes …