Law Commons^™

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Christian Faith And Political Life: A Pre- And Post-Election Dialogue, Jason Carter, Randy Beck

ExpressO

The 2004 presidential election has generated a wide-ranging discussion of the role of religion in public life. Well before the election, Jason Carter, grandson of former President Jimmy Carter, anticipated the difficulties the political left would experience in attracting the votes of theologically conservative Christians. In a paper initially drafted for a Spring 2004 law school seminar, Mr. Carter called for a genuine dialogue about political implications of the Christian faith, designed to overcome the country's unhealthy polarization between a religious right and a secular left. In light of the election results, Prof. Randy Beck suggested that Mr. Carter's seminar …

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

Two Concepts Of Liberalism In Establishment Clause Jurisprudence, Kevin Pybas

ExpressO

The political theorist William Galston argues that the liberal political tradition contains two distinct strands of philosophical thought. One emphasizes the principle of autonomy, while the other stresses the principle of diversity. These principles, according to Galston, are in tension with each other and as guiding criterions lead to quite different public policies. Autonomy-centered liberalism seeks to promote autonomy or “individual self-direction”; it reflects a “commitment to sustained rational examination of self, others, and social practices.” As such, autonomy-centered liberals are generally suspicious of religious belief and seek to confine it to the private sphere. Diversity-centered liberalism, on the other …

Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …

Does The Establishment Clause Require Religion To Be Confined To The Private Sphere?, Kevin Pybas

ExpressO

Through the first four decades or so of the U.S. Supreme Court’s church-state jurisprudence the Court generally sought to confine religion to the private sphere, on the grounds that the establishment clause requires such a result. While the Rehnquist Court has been more open to religion in the public sphere than previous Courts, the claim that the establishment clause requires religion to be restricted to the private sphere retains strong support among a minority of Supreme Court justices. Witness Justice Souter’s fierce objection, in Zelman v. Simmons-Harris (2002), to the Court’s approval of the use of publicly funded tuition vouchers …

The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith

University of San Diego Public Law and Legal Theory Research Paper Series

This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface. The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other …

Rules Of The Game: The "Play In The Joints" Between The Religion Clauses, Sharon Keller

ExpressO

Locke v. Davey is an exemplar of the new generation of Establishment clause cases that, particularly in Zelman v. Simmons-Harris, have written into law a safe harbor, private choice, for governmental benefits that find their way into the coffers of religious institutions in amounts that are neither incidental nor trivial. In Locke the options presented in the private choice arguably infringed upon Free Exercise rights-- the dilemma that gives rise to the title of this article. Over the vigorous dissent of Justice Scalia, the Locke Court’s analysis of the permissibility of the conditioned benefit was based upon the argument that …

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

Writing Their Faith Into The Law Of The Land: Jehovah's Witnesses, The Supreme Court And The Battle For The Meaning Of The Free Exercise Clause, 1939-1945, Patrick J. Flynn

ExpressO

The article traces the development of free exercise jurisprudence through the battles of Jehovah's Witnesses before the Court, and the battles on the Court between Justices Black, Douglas and Frankfurter to establish their constitutional faiths as the law of the land during a brief period in the early 1940's when these issues came before the Court in a flurry of decisions, then disappeared.

International Child Abductions: The Challenges Facing America , Charles F. Hall

ExpressO

International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …

A Defining Faith: "True" Religion And The Establishment Clause, Jeffrey Shulman

ExpressO

This essay examines two trends in modern church-state law. Parts I and II review the history of the Supreme Court's Establishment Clause cases. It is a history that can best be understood as a series of jurisprudential maneuvers by which the Court has sought to make room for religion in civic life. The accommodations made by the Court to religious belief and conduct have, in effect, allowed for discrimination against non-religion, and have edged the court toward a nonpreferentialist perspective on disestablishment. But the Court’s accommodating attitude amounts to more than a preference for the many varieties of religious experience. …

Secularism's Laws: State Blaine Amendments And Religious Persecution, Kyle Duncan

ExpressO

The State Blaine Amendments are provisions in thirty-seven state constitutions that restrict persons’ and organizations’ access to public benefits on religious grounds. They arose largely in the mid- to late-1800s in response to bitter strife between an established Protestant majority and a growing Catholic minority that sought equal access to public funding for Catholic schools. After the failure to pass a federal constitutional amendment—the "Blaine Amendment"—that would have sealed off public school funds from "sectarian" institutions, similar provisions proliferated in state constitutions. These "State Blaines" have often been interpreted, under their plain terms, as erecting religion-sensitive barriers to the flow …

In The Wake Of Lee V. Weisman: The Future Of School Graduation Prayer Is Uncertain At Best, Stephen Durden

Stephen Durden

No abstract provided.

Nude Entertainment Zoning, Stephen Durden

Stephen Durden

Local government regulation, as opposed to prohibition, of nude entertainment began in earnest in the 1970's. These regulations generally fell into four categories: (1) zoning; (2) prohibiting nude entertainment in conjunction with the service of alcohol; (3) licensing; and (4) regulating conduct, e.g., hours of operation, distance from customers, prohibition of private booths. The proliferation of these many and varied approaches began soon after the Supreme Court in California v. LaRue held that nude dancing is, or at least might be, protected by the First Amendment. Prior to LaRue, states regularly prohibited nude entertainment via general prohibitions on lewd and …

When A King Speaks Of God; When God Speaks To A King: Faith, Politics, Tax Exempt Status, And The Constitution In The Clinton Administration, Randy Lee

Randy Lee

Litter Or Literature: Does The First Amendment Protect Littering Of Neighborhoods?, Stephen Durden

Stephen Durden

Pamphlets can be as simple as a single piece of paper or as voluminous as a small newspaper placed in a plastic bag. Each method of distribution engenders its own particular problems. The purpose of this Article is to examine the legal implications of pamphlet distribution, particularly distribution on residential property. Are these pamphlets litter or literature? Or, might they be called “litter-ature”--a combination of both? The first part of this Article sets forth some of the problems associated with the distribution of pamphlets, especially on residential property. The second part examines the First Amendment speech implications of distributing literature …

Native American Life Stories And "Authorship": Legal And Ethical Issues, Lenora P. Ledwon

Faculty Articles

Juridical discourse concerning life stories has been primarily concerned with property and contract issues, and categories such as "ownership" and "authorship." Such legal discourse generally fails to acknowledge the unique nature of Native American life stories, particularly when such stories are written in collaboration with a non-Native editor or transcriber. This essay focuses on one fundamental question with overlapping legal and ethical aspects: how does a non-Native collaborator avoid a colonizing relationship to Native American texts? In suggesting possible answers to this vexing question, I always have on the horizon of my mind's eye two figures-Emmanuel Levinas, the philosopher, and …

The Doctrine Of Accommodation In The Jurisprudence Of The Religion Clauses, Sarah Barringer Gordon, Arlin M. Adams

All Faculty Scholarship

No abstract provided.

Constitutional Law - Pennsylvania Constitution - Equal Protection - Pennsylvania's Sunday Trading Laws Violate The Equal Protection Provision Of Pennsylvania's Constitution, Stanley A. Smith

Villanova Law Review

No abstract provided.

Bringing Christian Schools Within The Scope Of The Unemployment Compensation Laws: Statutory And Free Exercise Issues, R. Leonard Davis Iii

Villanova Law Review

No abstract provided.

The Irrelevance Of The Constitution: The Religion Clauses Of The First Amendment And The Supreme Court, Philip B. Kurland

Villanova Law Review

No abstract provided.

Primary And Secondary Characteristics In Discrimination Cases, Richard Marshall Abrams

Villanova Law Review

No abstract provided.

Constiutional Law - Balancing Test Employed To Resolve Conflict Between State Statute And Resulting Burden On Free Exercise Of Religion - State Interest In Compelling Compulsory High School Attendance Outweighed By Resulting Burden On Free Exercise Of Amish Religion, Michael G. Trachtman

Villanova Law Review

No abstract provided.

The First Amendment And Education - A Plea For Peaceful Coexistence, Dan L. Johnston

Villanova Law Review

No abstract provided.

The Dilemma Of The Professoriate, Matthew W. Finkin

Villanova Law Review

No abstract provided.

The Difficult Quest For A Truly Humane Abortion Law, Donald A. Giannella

Villanova Law Review

No abstract provided.

And This, Too, O King, Shall Change And Pass Away, C. T. Graydon

South Carolina Law Review

No abstract provided.

God In The Constitution, Robert T. Donley

West Virginia Law Review

No abstract provided.