Law Commons^™

God Is As God Does: Law, Anthropology, And The Definition Of "Religion", James M. Donovan

James M. Donovan

This Article first discusses the judicial deliberations upon the definition of religion. That discussion adopts a chronological sequence because, in legal matters, that is the one that counts.

It can be a tedious, but not particularly difficult task to summarize the legal struggle to define religion. The strategy applied to evaluate the product of that struggle is intellectual triangulation, whereby bearings from two fixed positions are used to specify that of that third. By analogy, the correct definition of "religion" can be identified by finding where the legal efforts intersect with an independent sighting of the same target. Where this …

Unconstitutional Incontestability?: The Intersection Of The Intellectual Property And Commerce Clauses Of The Constitution: Beyond A Critique Of Shakespeare Co. V. Silstar Corp., Malla Pollack

Malla Pollack

This article makes several assertions: (1) The Intellectual Property Clause of the Constitution, even read with the Commerce Clause, prevents Congress from giving authors or inventors exclusive rights unbounded by premeasured time limitations; (2) Because such limits exist, even incontestable trademarks must be subject to functionality challenges in order to prevent conflict with the Patent Clause; (3) The Intellectual Property Clause requires a similar challenge to prevent conflict with the Copyright Clause; (4) The states are also limited by either direct constitutional mandate or statutory preemption. Based on the first two assertions, this article argues that the Fourth Circuit's decision …

Judicial Selection In The People’S Democratic Republic Of Pennsylvania: Here The People Rule?, Harry L. Witte

Harry L Witte

No abstract provided.

What's Wrong With Exploitation?, Justin Schwartz

Justin Schwartz

Abstract: Marx thinks that capitalism is exploitative, and that is a major basis for his objections to it. But what's wrong with exploitation, as Marx sees it? (The paper is exegetical in character: my object is to understand what Marx believed,) The received view, held by Norman Geras, G.A. Cohen, and others, is that Marx thought that capitalism was unjust, because in the crudest sense, capitalists robbed labor of property that was rightfully the workers' because the workers and not the capitalists produced it. This view depends on a Labor Theory of Property (LTP), that property rights are based ultimately …

Charles Fairman, Felix Frankfurter, And The Fourteenth Amendment, Richard L. Aynes

Richard L. Aynes

The scope of the Fourteenth Amendment determines, in large measure, the allocation of responsibility and power between the states and the government of the United States. It has been characterized as “the most significant [[[Amendment] in our history” and a “second American Constitution.” It is therefore not surprising that some of the most important disputes in the United States Supreme Court have been over the meaning of the Fourteenth Amendment and that the disputes have involved some of the most important legal thinkers of our times. In the twentieth century, one of the most familiar articulations of differing views occurred …

Making Conditions Constitutional By Attaching Them To Welfare: The Dangers Of Selective Contextual Ignorance Of The Unconstitutional Conditions Doctrine, Julie Nice

Julie A. Nice

This article examines the lack of judicial consistency in applying the Unconstitutional Conditions doctrine with regard to the same constitutional guarantee but involving different public benefits. Professor Nice posits that the courts frequently apply a lower level of scrutiny when conditions are attached to welfare benefits than when conditions are attached to other types of government benefits. She specifically examines this inconsistency among decisions involving Free Exercise and Takings. She shows that the Supreme Court has reduced its regular level of heightened scrutiny and instead applied Dandridge-style deference to uphold welfare conditions. For example, in a series of free exercises …

La Reforma Judicial De 1994 Y Las Acciones De Inconstitucionalidad, Héctor Fix Fierro

Héctor Fix Fierro

No abstract provided.