Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

2006

1924-2005

Articles 1 - 8 of 8

Full-Text Articles in Law

The Endorsement Court, Jay D. Wexler Jan 2006

The Endorsement Court, Jay D. Wexler

Washington University Journal of Law & Policy

The Rehnquist Court was the first to apply the so-called “endorsement test” to evaluate the constitutionality of government-sponsored religious symbols and displays. The test asks whether a “reasonable observer” would feel that the government has sent “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Although the Supreme Court itself has applied the endorsement test in only a handful of cases, the test has played an extremely important role in how courts throughout the country have evaluated government ...


Some Animals Are More Equal Than Others: The Rehnquist Court And “Majority Religion”, Garrett Epps Jan 2006

Some Animals Are More Equal Than Others: The Rehnquist Court And “Majority Religion”, Garrett Epps

Washington University Journal of Law & Policy

This Essay explores the evolution of the remarkable new view of religion and the Constitution during the Rehnquist Court era. Part II analyzes Justice Scalia’s dissent in Lee v. Weisman, which set out the agenda for the religious caucus of the Court in the early years. Part III shows how the rhetoric of equality and historical grievance has been used to dismantle the boundary—for old time’s sake, let us call it a “wall of separation”—that separated religious institutions from the public fisc. Part IV analyzes Justice Scalia’s dissent in McCreary County v. American Civil Liberties ...


Foreword: The Rehnquist Court And The First Amendment, Neil M. Richards Jan 2006

Foreword: The Rehnquist Court And The First Amendment, Neil M. Richards

Washington University Journal of Law & Policy

This paper introduces the question -- what will be the legacy of the Rehnquist Court? Although it is too early to say with certainty, it is safe to hazard a guess that it will be remembered as a relatively conservative Court, particularly interested in policing the lines between federal and state power in areas such as the federal commerce power, state sovereign immunity, and criminal procedure. Indeed, it is in these areas that the “Rehnquist Court” is most aptly named, for William Rehnquist was a leader of the Court’s doctrinal evolution in these areas in a number of ways. Despite ...


Trumping The First Amendment?, Lee Epstein, Jeffrey A. Segal Jan 2006

Trumping The First Amendment?, Lee Epstein, Jeffrey A. Segal

Washington University Journal of Law & Policy

The primary goal of this Essay is to assess whether the relationship between the ideology of Supreme Court Justices and their support for the First Amendment guarantees of speech, press, assembly, and association has declined, such that left-of-center Justices no longer consistently support those guarantees, and right-of-center Justices no longer consistently support their regulation. Utilizing data drawn from the 1953 through 2004 terms of the Court, we show that, in disputes in which only First Amendment claims are at issue, the more liberal the Justice, the higher the likelihood that he or she will vote in favor of litigants alleging ...


The Apparent Consistency Of Religion Clause Doctrine, Abner S. Greene Jan 2006

The Apparent Consistency Of Religion Clause Doctrine, Abner S. Greene

Washington University Journal of Law & Policy

A hallmark of religion clause scholarship is the complaint that the doctrine is a hopeless muddle. However, the Rehnquist Court brought a considerable amount of consistency—well, apparent consistency— to the doctrine. I say “apparent consistency” because, just as a paradox is only a seeming contradiction, so was the Rehnquist Court’s religion clause jurisprudence only seemingly consistent. The doctrine focuses on whether the government singles out religion for special benefit (generally problematic under the Establishment Clause) or for special burden (generally problematic under the Free Exercise Clause). If, on the other hand, the government benefits religion as part of ...


Property, Place, And Public Discourse, Timothy Zick Jan 2006

Property, Place, And Public Discourse, Timothy Zick

Washington University Journal of Law & Policy

I will argue that the Rehnquist Court largely left our “expressive topography” worse than it found it. As had predecessor Courts, the Rehnquist Court treated public places as little more than public properties managed by public officials. But its impact on public discourse actually extended beyond this. The Rehnquist Court diminished the scope of speakers’ rights in even quintessentially open places such as streets and sidewalks. Among other things, the Court’s decisions also tacitly approved the practice of zoning expression in public places. The Court even recognized a listener’s right to avoid offensive expression in public places. Finally ...


What's Right And Wrong With “No Endorsement”, Thomas C. Berg Jan 2006

What's Right And Wrong With “No Endorsement”, Thomas C. Berg

Washington University Journal of Law & Policy

Contrary to Professor Wexler, I argue that unless the endorsement test is properly understood and limited, it has the critical flaw of putting the Establishment Clause at war with the other religion guarantee of the First Amendment, the Free Exercise Clause. If the Establishment Clause forbade government endorsement of religion in all contexts, it would undermine the government’s ability to give special accommodation to religious practice and thus would severely impair free exercise values. “No endorsement of religion” thus must function, not as the general requirement of the Establishment Clause, but only as a rule for the particular class ...


The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna Jan 2006

The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna

Washington University Journal of Law & Policy

In the last few years, many pages have been devoted to retrospectives on Justice Rehnquist and the Rehnquist Court, a fair number of which focused on Justice Rehnquist’s First Amendment jurisprudence. I focus here not on Justice Rehnquist specifically, but on the Supreme Court as a whole during Rehnquist’s tenure. Specifically, I want to address the Court’s view of the role of the First Amendment in intellectual property cases. My thesis is a modest one: while one certainly cannot describe the Rehnquist Court as eager to find a conflict between intellectual property laws and the First Amendment ...