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Three Theories Of Substantive Due Process, Daniel O. Conkle

Articles by Maurer Faculty

Substantive due process is in serious disarray, with the Supreme Court simultaneously embracing two, and perhaps three, competing and inconsistent theories of decisionmaking. The first two theories, historical tradition and reasoned judgment, have explicit and continuing support in the Court's decisions. Under the theory of historical tradition, substantive due process affords presumptive constitutional protection only to liberties that are "deeply rooted in this Nation's history and tradition." By contrast, the theory of reasoned judgment is far more expansive, permitting the Court to identify rights independently, through a process that amounts to philosophical analysis or political-moral reasoning. The third theory, evolving …

Hospitality: How A Biblical Virtue Could Transform United States Immigration Policy, Elizabeth Mccormick, Patrick Mccormick

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Santa Clara Magazine, Volume 47 Number 2, Fall 2005, Santa Clara University

Santa Clara Magazine

6 - THE DRIVE TO CREATE by Elizabeth Kelley Gillogly '93. Albert Hoagland, an adjunct professor at SCU for more than 20 years, helped to build the first disk drive. Now is he working to preserve the history of magnetic disk storage.

10 - UNFINISHED MESSAGE by Toshio Mori. We share an excerpt from a collection of short stories by Mori, whose work highlights the plight of Japanese immigrants in the U.S. during World War II. The book is a part of the California Legacy Series, a partnership between SCU and Heyday Books.

14 - THE FAMILIAR STRANGER By Cynthia …

China's New Regulations On Religion: A Small Step, Not A Great Leap, Forward, Eric R. Carlson

BYU Law Review

No abstract provided.

Private Practice, Public Profession: Convictions, Commitments, And The Availability Of Counsel, Barry Sullivan

West Virginia Law Review

I would like to start by stating a proposition that may strike you as either simple-minded or self-evident, but, more likely, will simply seem strange because of the way in which I state it. My proposition is this: In a democratic society, the legal profession, its rights and privileges, exist to serve public purposes. The legal profession serves two principal public purposes: to provide representation to those who lack the specialized training to represent themselves, that is, non-lawyers, and to promote justice in society. One might object that representing clients is not a public purpose, but that, I would suggest, …

Guilt By "Race": Injustice In Camus's The Stranger, David Carroll

Cardozo Law Review

No abstract provided.

The Pledge As Sacred Political Ritual, Sheldon H. Nahmod

William & Mary Bill of Rights Journal

No abstract provided.

Racial Free-Riding On The Coattails Of A Dream Deferred: Can I Borrow Your Social Capital?, Maurice R. Dyson

William & Mary Bill of Rights Journal

No abstract provided.

Who Needs Freedom Of Religion?, James W. Nickel

Articles

This article proposes that we view freedom of religion as a specific application area of more general basic liberties such as freedoms of thought, expression, association, assembly, movement, privacy, political participation, and economic activity. Separate enumeration of freedom of religion in national and international bills of rights may be useful, but it is not indispensable. In this respect freedom of religion is more like scientific freedom or artistic freedom than like freedom of expression. Recognizing that separate enumeration of freedom of religion is dispensable has salutary consequences for how we conceive and justify freedom as it applies to religion. First, …

In A Dark Wood: Dante As A Spiritual Guide For Lawyers, Joseph Allegretti

St. Thomas Law Review

In this paper, I propose to focus on three stages in the Divine Comedy that represent three stages of the spiritual journey. First, being lost. The poem opens with Dante lost in a dark wood, corresponding to the spiritual situation of many lawyers today. Recall the title of Dean Kronman's book: The Lost Lawyer. Second, taking the journey. Dante moves from the dark wood through hell and purgatory on his journey of self-discovery. The lessons he learns can help anyone setting out on the spiritual journey. Third, arriving home. Dante ends his poem with a vision of what it means …

Judicial Reform In Afghanistan: A Case Study In The New Criminal Procedure Code, Faiz Ahmed

UC Law SF International Law Review

On January 4, 2004, the Islamic Transitional State of Afghanistan ratified a constitution. While lauded by many, a number of its articles have stirred debate within Afghanistan. Using the country's new criminal procedure code as a case study, the author addresses key questions pertaining to legal reform and development movements, including the foreign imposition of law, a lack of local participation in legal reform processes, and a blindness to the multiple layers of indigenous law practiced on the ground. The author concludes that these are all weaknesses that will fundamentally hamper the rebuilding of stable legal institutions in Afghanistan in …

Book Review: Ferrari & Durham, Law And Religion In Post-Communist Europe, Mark Weston Janis

Faculty Articles and Papers

No abstract provided.

Unveiling The Real Issue: Evaluating The European Court Of Human Rights’ Decision To Enforce The Turkish Headscarf Ban In Leyla Sahin V. Turkey, Benjamin Bleiberg

Cornell Law Review

No abstract provided.

Who Needs Freedom Of Religion?, James W. Nickel

University of Colorado Law Review

This article proposes that we view freedom of religion as a specific application area of more general basic liberties such as freedoms of thought, expression, association, assembly, movement, privacy, political participation, and economic activity. Separate enumeration of freedom of religion in national and international bills of rights may be useful, but it is not indispensable. In this respect freedom of religion is more like scientific freedom or artistic freedom than like freedom of expression. Recognizing that separate enumeration of freedom of religion is dispensable has salutary consequences for how we conceive and justify freedom as it applies to religion. First, …

A Property Rights Approach To Sacred Sites Cases: Asserting A Place For Indians As Nonowners, Kristen A. Carpenter

Publications

Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also important to analyze them through a property law lens. Indeed, the Supreme Court has treated the federal government's ownership of public lands as a basis for denying Indian religious freedoms claims. This Article contends that such holdings rely on an "ownership model" of property law wherein the rights of the …

The "Privilege Of Speech" In A "Pleasantly Authoritarian Country", Hans C. Clausen

Vanderbilt Journal of Transnational Law

Giving credence to Alexis de Tocqueville's argument that in democratic societies the love of equality is greater than the love of freedom is a recently emerging trend among Western nations to legally proscribe speech critical of homosexuality. Such laws, in various forms, now exist in a large and growing minority of countries in Europe and North America. The goal of these laws is much grander than preventing discrimination against homosexuals; rather, the objective is seemingly to promote the social acceptance of gay and lesbian lifestyles. These laws provide for civil remedies and in some instances even criminal sanctions for speech …

Considering Individual Religious Freedoms Under Tribal Constitutional Law, Kristen A. Carpenter

Publications

As American Indian nations revitalize their legal systems, there is renewed interest in "tribal law," that is, the law of each of the Indian nations. Today, there is a particular focus on the subject of "individual rights" under tribal law. In tribal contexts, people are highly interested in the legal institutions and rules that govern their lives, especially as many tribal communities are experiencing a period of great political, social, and economic change. At the national level, the Supreme Court repeatedly expresses concern about whether individuals, especially non-Indians, will be treated fairly in tribal court. For scholars, individual rights under …

Religion And Politics In The United States, Marci A. Hamilton

Articles

No abstract provided.

The Scopes Trope, Jay D. Wexler

Faculty Scholarship

In his book, Where Darwin Meets the Bible: Creationists and Evolutionists in America, journalist Larry Witham introduces the reader to the various characters involved in the ongoing controversy over evolution and creationism. His account is subtle and nuanced, and he demonstrates that the controversy is more complicated than many believe. Far from caricatures of godless scientists seeking to discard religion in thedustbin of history and reactionary religious fundamentalists decrying Darwinism as the downfall of mankind, Witham gives us the real stories of real people who dwell in shades far more gray than usually recognized. This book review builds upon Witham's …

The Autonomy Of Church And State, Brett G. Scharffs

BYU Law Review

No abstract provided.

Lost In The Forest Of The Establishment Clause: Elk Grove V. Newdow, Todd Collins

Campbell Law Review

This article provides and in-depth examination of the Newdow case and High Court's opinion.

Santa Clara Magazine, Volume 46 Number 1, Summer 2004, Santa Clara University

Santa Clara Magazine

8 - A PUZZLING PROFESSOR By Adam Breen. Byron Walden, an assistant professor of mathematics at SCU, draws on his knowledge of numerical analysis to create crossword puzzles for The New York Times.

10 - THE LAUNCHING PAD By Larry Sokoloff J.D. '92. Top government agencies, other universities, and companies are relying on the University's Robotics Systems Lab-and its students-to build and monitor satellites.

16 - A NOVEL TEAM By Kristin Lenore '04. The University's publishing partnership with Heyday Books aims to help preserve California's cultural legacy.

Court Review: Volume 41, Issue 2 - Recent Civil Decisions Of The U.S. Supreme Court: The 2003-2004 Term, Charles H. Whitebread

Court Review: Journal of the American Judges Association

The civil cases decided by the United States Supreme Court during its last term were headlined by its decisions reasserting the rule of law in the context of detainees in the war on terrorism. In addition, the Court handed down a number of decisions on civil rights, the First Amendment, federalism, presidential power, and civil statutory interpretation. We review those cases here.

We Didn't Start The Fire: The Origins Science Battle Rages On More Than 75 Years After Scopes, Arianne Ellerbe

Louisiana Law Review

No abstract provided.

Santa Clara Magazine, Volume 45 Number 4, Spring 2004, Santa Clara University

Santa Clara Magazine

8 - TOP TEACHERS By Elizabeth Kelley Gillogly '93-Meet three SCU professors who received University awards for teaching excellence and curriculum innovations.

10 - BLAZING THE TRAIL By Victoria Hendel De La O. There are many unique challenges and rewards for the hundreds of first-generation college students at SCU.

14 - THE SCU DIFFERENCE By Margaret Avritt. The value of an SCU education goes beyond statistics and scores. Students at this university have experiences that engage and transform them.

18 - MIND OVER MONEY By Hersh Shefrin and Meir Statman. Two SCU professors of finance explore how psychology can help …

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Professor Oh briefly describes Locke v. Davey in which the U.S. Supreme Court, in its 2003-04 term, attempted to clarify its First Amendment jurisprudence on the religion clauses. In a 7-2 decision, the Court held that the State of Washington did not violate the First Amendment Free Exercise Clause by denying government financial aid to college students seeking to pursue a course of study in religious devotional studies.

Environmental Ethics From The Perspectives Of Nepa And Catholic Social Teaching: Ecological Guidance For The 21st Century, Lucia A. Silecchia

William & Mary Environmental Law and Policy Review

No abstract provided.

Vol. 26, No. 10 (March 29, 2004)

Indiana Law Annotated

No abstract provided.

Santa Clara Magazine, Volume 46 Number 3, Winter 2004, Santa Clara University

Santa Clara Magazine

8 - AN ARTIST WITH A MISSION By Elizabeth Kelley Gillogly '93. In his latest series, Howard Anderson '71 created paintings of the 21 California missions.

10 - THE SPIRITUALITY OF GIFT GIVING By Tom Beaudoin. Is it possible to turn our gift giving into a spiritual exercise?

14 - RAISING ARIZONA By Susan Shea. Arizona Governor Janet Napolitano '79, a rising political star, uses the lessons learned at SCU to serve her state.

20 - LEAVING COMMUNISM BEHIND By Jane Curry. An SCU professor and Fulbright Scholar researches forgiveness and justice in post-communist Poland.

Reenchanting The Law: The Religious Dimension Of Judicial Decision Making, Mark C. Modak-Truran

Journal Articles

Without a religious justification in the law, judges cannot fully justify their decisions in hard cases from within the law. The law must be indeterminate because the Establishment Clause proscribes this full justification. This does not mean that the Establishment Clause prohibits judges from fully justifying their decisions during their deliberations about hard cases. It only prohibits judges from including that full justification in their written opinions. Deliberation and explanation are separate stages of judicial decision making that should be kept distinct. Given this distinction, my thesis is that judges should fully justify their decisions in hard cases by relying …