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Full-Text Articles in Law
Who Let The Ghouls Out? The History And Tradition Test’S Embrace Of Neutrality And Pluralism In Establishment Cases, Jake S. Neill
Who Let The Ghouls Out? The History And Tradition Test’S Embrace Of Neutrality And Pluralism In Establishment Cases, Jake S. Neill
Pepperdine Law Review
In June of 2022, the Supreme Court decided in Kennedy v. Bremerton School District that an Establishment Clause inquiry “focused on original meaning and history” would replace Lemon’s endorsement test. But after announcing the test, the Court neglected to describe or apply it. This Comment attempts to fill that void. After analyzing the Court’s Establishment Clause jurisprudence, this Comment proposes tenets of the history and tradition test and applies those tenets to Allegheny County v. ACLU, a case decided under Lemon. Finally, this Comment concludes by arguing that the history and tradition inquiry supports pluralism, humility, tolerance, and a healthy …
Our Campaign Finance Nationalism, Eugene D. Mazo
Our Campaign Finance Nationalism, Eugene D. Mazo
Pepperdine Law Review
Campaign finance is the one area of election law that is most difficult to square with federalism. While voting has a strong federalism component—elections are run by the states and our elected officials represent concrete geographical districts—our campaign finance system, which is rooted in the First Amendment, almost entirely sidesteps the boundaries of American federalism. In so doing, our campaign finance system creates a tenuous connection between a lawmaker’s constituents, or the people who elect him, and the contributors who provide the majority of his campaign cash. The recent explosion of outside spending in American elections by wealthy individuals and …
“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty
“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty
Pepperdine Law Review
At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of Sharī’ah law. They hope to join the seven states that have ostensibly banned it to date. Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis. There is no creeping …
Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin
Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin
Pepperdine Law Review
The article focuses on role of the U.S. courts in confronting religious laws in dispute resolution of various cases of domestic relations, contracts, and torts. Topics discussed include role of secular courts in maintaining constitutional balance between the free exercise and establishment clauses, constitutional challenges faced by religious adherents, and importance of legal pluralism in the U.S.
Rethinking The “Religious-Question” Doctrine, Christopher C. Lund
Rethinking The “Religious-Question” Doctrine, Christopher C. Lund
Pepperdine Law Review
The “religious question” doctrine is a well-known and commonly accepted notion about the First Amendment’s Religion Clauses. The general idea is that, in our system of separated church and state, courts do not decide religious questions. And from this premise, many things flow — including the idea that courts must dismiss otherwise justiciable controversies when they would require courts to resolve religious questions. Yet a vexing thought arises. The religious-question doctrine traditionally comes out of a notion that secular courts cannot resolve metaphysical or theological issues. But when one looks at the cases that courts have been dismissing pursuant to …
Response: Situating Ourselves In History, Steven D. Smith
Response: Situating Ourselves In History, Steven D. Smith
Pepperdine Law Review
The author presents his views on history of religious freedom incorporated in his Brandeis lecture and in the book "The Rise and Decline of American Religious Freedom." Topics discussed include hegemonic status of special protection to religious freedom for legal academics, role of ending religious freedom in providing protection to religious actors under other constitutional provisions like free speech, and impact of ending religious freedom on other freedom like freedom of association.
The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe
The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe
Pepperdine Law Review
In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.
Theorists, Get Over Yourselves: A Response To Steven D. Smith, Andrew Koppelman
Theorists, Get Over Yourselves: A Response To Steven D. Smith, Andrew Koppelman
Pepperdine Law Review
In this article, the author presents his views in response to the article The Last Chapter? by critic of contemporary liberal theory Steven D. Smith in reference to his book "Defending American Religious Neutrality." Topics discussed include the political aspects associated with religious freedom, role of secularism in eroding religious freedom, and conflicts between religion and modern secular egalitarianism.
More “Vitiating Paradoxes”: A Response To Steven D. Smith, Paul Horwitz
More “Vitiating Paradoxes”: A Response To Steven D. Smith, Paul Horwitz
Pepperdine Law Review
In this article, the author presents his views in response to the article The Last Chapter? by critic Steven D. Smith. Topics discussed include importance of critical legal studies (CLS) theory in reflecting political aspects of religious freedom, views of Smith in his book "The Rise and Decline of American Religious Freedom," and the relationship of egalitarianism with religious freedom.
The Last Chapter?, Steven D. Smith
The Last Chapter?, Steven D. Smith
Pepperdine Law Review
An essay is presented in which the author presents contrasting views of law professors at Stanford and Harvard University, Michael McConnell and Noah Feldman respectively on religious freedom. Topics discussed include requirement of special protection to religious freedom, protection of religious belief and expression under other constitutional provisions such as freedom of speech, and the failure of Obama Administration in providing special freedom of association to religious associations.
Once We Were Slaves, Now We Are Free: Legal, Administrative, And Social Issues Raised By Passover Celebrations In Prison, Aviva Orenstein
Once We Were Slaves, Now We Are Free: Legal, Administrative, And Social Issues Raised By Passover Celebrations In Prison, Aviva Orenstein
Pepperdine Law Review
“Once we were slaves, now we are free” is a central line from the Jewish Passover Seder, a ritual meal in which participants retell the story of liberation from Pharaoh’s oppression. In prison, many Jewish inmates request access to a Seder and to kosher-for-Passover food for the eight-day holiday. Prisoners’ requests to celebrate Passover provide a rich example for exploring the Religious Land Use and Institutional Persons Act (RLUIPA), and raise a host of tough questions regarding cost, safety, equal treatment of prisoners, and establishment of religion. Because kosher-for-Passover meals are more expensive and generally of higher quality than regular …
The Post-Tsa Airport: A Constitution Free Zone?, Daniel S. Harawa
The Post-Tsa Airport: A Constitution Free Zone?, Daniel S. Harawa
Pepperdine Law Review
No abstract provided.
Executive Action And The First Amendment's First Word, Daniel J. Hemel
Executive Action And The First Amendment's First Word, Daniel J. Hemel
Pepperdine Law Review
In recent years, textualist scholars have advanced the argument that the First Amendment only applies to legislative action, and thus that executive authority is unencumbered by the First Amendment’s prohibitions. According to this argument, the words “Congress shall make no law” cannot be construed to limit the powers of the executive branch. Upon first glance, it might seem that a textualist reading of the First Amendment’s first word would give the executive branch carte blanche in the regulation of religion, expression, and association. Yet as this Article seeks to show, a textualist reading of the First Amendment’s first word does …
Consolidated Edison Company Of New York V. Public Service Commission: Freedom Of Speech Extended To Monopolies - Is There No Escape For The Consumer?, Lynn K. Warren
Pepperdine Law Review
The author's focus is upon an opinion of the United States Supreme Court which silently extended first amendment freedoms to a corporate monopoly. The majority attempts a balancing of the monopoly utility's freedom of speech against the state's protection of the privacy interests of the ratepayers and finds the privacy interest not to be so compelling as to justify any restriction on freedom of speech. The author suggests that the privacy interest is so substantial as to be compelling and further agrees with the dissent, that because of the special position of the Consolidated Edison Company as a monopoly and …
A Barometer Of Freedom Of The Press: The Opinions Of Mr. Justice White , Michael J. Armstrong
A Barometer Of Freedom Of The Press: The Opinions Of Mr. Justice White , Michael J. Armstrong
Pepperdine Law Review
Since the Zurcher v. Stanford Daily decision which was authored by Justice Byron F. White, the news media has become increasingly concerned with its' first amendment protections from governmental searches. Since Justice White has been the voice of the United States Supreme Court on this very issue, the author submits that an examination of Justice White's media related opinions can serve as a "barometer" for the constitutional protections of the news media. The author examines the use of Justice White to the Supreme Court, his staunch adherence to stare decisis, and the historical foundation of the first amendment as they …
Heffron V. International Society For Krishna Consciousness Inc.: A Restrictive Constitutional View Of The Proselytizing Rights Of Religious Organizations , Michael M. Greenburg
Heffron V. International Society For Krishna Consciousness Inc.: A Restrictive Constitutional View Of The Proselytizing Rights Of Religious Organizations , Michael M. Greenburg
Pepperdine Law Review
The persistent efforts of religious organizations to reach their public have consistently been met with governmental limitation due to the often conflicting interests of public order, and free speech and expression. Heffron v. International Society for Krishna Consciousness, Inc. represents the Court's latest redefinition of the extent of permissible limitations upon the activities of these groups. The author examines the decision in light of the traditional criteria for permissible time, place, and manner restrictions upon free speech and evaluates the Court's implementation of these restrictions with respect to the activities of the Krishna group. The impact of the decision upon …
Chandler V. Florida: Cameras, Courts, And The Constitution, Allen F. Camp
Chandler V. Florida: Cameras, Courts, And The Constitution, Allen F. Camp
Pepperdine Law Review
The rising importance of television journalism in the 1960's has resulted in the Supreme Court deciding whether a criminal defendant's due process rights are violated by camera coverage of the courtroom proceeding. The decision of Chandler v. Florida clearly provides the answer; for unless a defendant proves prejudice with specificity, the Constitution does not ban televised criminal trials. The author examines the issues with a revealing historical perspective. He then traces the Court's factual and legal analysis and concludes that the decision will serve to offer the states guidance in deciding whether to implement a program allowing television coverage of …
A New Standard Of Review In Free Exercise Cases: Thomas V. Review Board Of The Indiana Employment & Security Division, Lynn Mccutchen Gardner
A New Standard Of Review In Free Exercise Cases: Thomas V. Review Board Of The Indiana Employment & Security Division, Lynn Mccutchen Gardner
Pepperdine Law Review
In Thomas v. Review Board of the Indiana Employment Security Division, the United States Supreme Court was called upon to clarify the appropriate level of review to be applied in cases which examine the first amendment right to free exercise of religion. The Court ruled that the "compelling state interest" test is the proper standard to be used. The Court also accorded first amendment protection to beliefs which are not shared by other members of a religious group and which are instead the unique interpretation of an individual member and not acceptable, logical, consistent or comprehensible to others.
Banning Books In Public Schools: Board Of Education V. Pico, Kelly Bowers
Banning Books In Public Schools: Board Of Education V. Pico, Kelly Bowers
Pepperdine Law Review
In Island Trees Union Free School District v. Pico five members of the Supreme Court, in three separate opinions, held that the first amendment places some constraints on a school board's power to remove books from its school libraries. Although the opinions were couched in terms of preventing censorship, the effect of this decision was to create a right guaranteeing students access to books approved by the federal judiciary.
The Constitutional Issues Surrounding The Science-Religion Conflict In Public Schools: The Anti-Evolution Controversy, Michael M. Greenburg
The Constitutional Issues Surrounding The Science-Religion Conflict In Public Schools: The Anti-Evolution Controversy, Michael M. Greenburg
Pepperdine Law Review
Since the infamous Scopes trial the matter of the constitutional validity of the "anti-evolution" laws has plagued both legal scholars and school administrators. The courts have generally invalidated legislation which bans outright the teaching of evolution in public schools, but with the advent of the "balanced treatment" acts, a revival of this litigation has begun. The author examines the constitutional analysis utilized by the courts in dealing with the "anti-evolution" and "balanced treatment" acts and provides an historical perspective of the first amendment to question the Court's response to the issue.
Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney
Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney
Pepperdine Law Review
Justice Hugo L. Black served on the United States Supreme Court over a period of thirty-four years, encompassing Supreme Court terms from 1937 to 1971. During this period, the subject of the constitutional limitations of the freedom of religion was increasingly subjected to intense social pressures. Justice Black figured prominently in the development of constitutional law as the Supreme Court attempted to give meaning to the establishment and free exercise clause of the first amendment. He wrote the majority opinions which dealt with the establishment clause in the Everson, McCulloin, Engel and Torcaso cases. Yet, on later occasions, Justice Black …
Marsh V. Chambers: The Supreme Court Takes A New Look At The Establishment Clause, Diane L. Walker
Marsh V. Chambers: The Supreme Court Takes A New Look At The Establishment Clause, Diane L. Walker
Pepperdine Law Review
No abstract provided.
Some Observations On The Establishment Clause, William French Smith
Some Observations On The Establishment Clause, William French Smith
Pepperdine Law Review
As evidenced by current interpretations of the establishment clause, lower federal court decisions indicate an increased tendency of hostility toward religion. In this article, Attorney General William French Smith surveys the history of the establishment clause and Supreme Court decisions regarding religious issues. Attorney General Smith then notes the recent success of the Reagan Administration's efforts, through amicus curiae briefs, to advocate an interpretation of the establishment clause which permits the states to take an attitude of benevolent neutrality toward religion. The article then concludes that such a position is both historically and judicially sound.
Public Policy Against Religion: Doubting Thomas , Richard H. Seeburger
Public Policy Against Religion: Doubting Thomas , Richard H. Seeburger
Pepperdine Law Review
In free exercise cases, the Supreme Court has adopted a least restrictive alternative test in an attempt to maximize protection for religiously motivated practices. Because the least restrictive alternative test only considers the importance of the governmental interest and the availability of alternative means to accomplish those interests, thereby ignoring the importance of the burdened religious activity to the individual and the degree of burden on religious activity, all religious interests are treated equally when asserted against a governmental interest. Under such an inflexible and brittle test, the Supreme Court has recently denied religious claims which had previously been recognized. …
Negligent Infliction Of Emotional Distress: New Tort Problem For The Mass Media, Robert E. Drechsel
Negligent Infliction Of Emotional Distress: New Tort Problem For The Mass Media, Robert E. Drechsel
Pepperdine Law Review
Negligent infliction of emotional distress is becoming an increasingly popular cause of action to be utilized against media defendants. This article begins by tracing the development of the tort and explaining its central elements through cases involving mass media defendants. It studies the relationship between negligent infliction and the torts of libel, invasion of privacy, and intentional infliction of emotional distress. After considering the appropriate balance between expression and emotional tranquility, it is concluded that negligent infliction actions present an ominous threat to the free flow of expression. Sound policy considerations, flowing in part from the first amendment, dictate that …
Judicial Review Of The Zoning Of Adult Entertainment: A Search For The Purposeful Suppression Of Protected Speech, Alfred C. Yen
Judicial Review Of The Zoning Of Adult Entertainment: A Search For The Purposeful Suppression Of Protected Speech, Alfred C. Yen
Pepperdine Law Review
The conflict surrounding the zoning of adult entertainment is not novel. The antagonism stems from a community's right to provide for its social welfare and the adult entertainment provider's right to freedom of speech and expression. This article examines the evolution of the federal courts' analysis in this area. The author concludes by stating that the current method of review is not the most efficient. In its place, he proposes a new method that makes analysis simpler for both laypersons and the courts.
Justice O'Connor And The First Amendment 1981-84, Edward V. Heck, Paula C. Arledge
Justice O'Connor And The First Amendment 1981-84, Edward V. Heck, Paula C. Arledge
Pepperdine Law Review
No abstract provided.
Analysis Of A First Amendment Challenge To Rent-A-Judge Proceedings , Perry L. Glantz
Analysis Of A First Amendment Challenge To Rent-A-Judge Proceedings , Perry L. Glantz
Pepperdine Law Review
No abstract provided.
Copyright And The First Amendment: Freedom Or Monopoly Of Expression?, Henry S. Hoberman
Copyright And The First Amendment: Freedom Or Monopoly Of Expression?, Henry S. Hoberman
Pepperdine Law Review
No abstract provided.
First Amendment Implications Of Rock Lyric Censorship, Michael A. Coletti
First Amendment Implications Of Rock Lyric Censorship, Michael A. Coletti
Pepperdine Law Review
No abstract provided.