Law Commons^™

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur

Gregory A. Kalscheur, S.J.

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it be seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper …

First Amendment Based Copyright Misuse, David S. Olson

David S. Olson

We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or—if judges accept the proposal of this Article—courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control others’ speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new …

From Four Part Tests To First Principles: Putting Free Speech Jurisprudence Into Perspective, Joshua D. Rosenberg, Joshua P. Davis

Joshua D. Rosenberg

Abstract

Those familiar with free speech jurisprudence know it as a complicated, contradictory, and incoherent agglomeration of hyper-technical three and four part tests. In this article, the authors look back at how each of these different doctrines and tests developed, the purposes it properly serves, and how it became unanchored from those purposes. We show that at bottom the Court approaches freedom of speech much as it does other constitutional rights. The ultimate issues it seeks to resolve are: (1) to what extent does government have a duty to avoid interfering with a speaker? (2) if government has a duty …