Digital Commons Network^™

A Family Affair? Domestic Relations And Involuntary Public Figure Status, Mark Strasser

Mark Strasser

The constitutional limitations on defamation damages have changed greatly over the past five decades. Initially, only statements about public officials triggered such limitations, but the class of individuals triggering the most demanding standard was subsequently expanded. Over the past half century, members of the Court could neither agree about the kinds of people nor the kinds of statements that should be afforded constitutional protection. Even when ostensibly agreeing about the criteria to be used in defamation cases, members of the Court disagreed greatly about how the announced criteria should be applied in practice.

One of the most doctrinally confusing aspects …

The Onslaught On Academic Freedom, Mark Strasser

Mark Strasser

The United States Supreme Court has long recognized the importance of academic freedom both within and outside of the classroom. However, in a case having nothing to do with the academy, Garcetti v. Ceballos, the Court cast into doubt the validity of an entire line of cases, almost inviting the circuits to rewrite First Amendment doctrine in the entire area. The circuits have responded, creating a jurisprudence that threatens to bring about the negative consequences discussed over the past half-century. This article explores the First Amendment protections of academic freedom, explaining how Garcetti and the courts interpreting it have eviscerated …

Making The Anomalous Even More Anomalous: On Hosanna-Tabor, The Ministerial Exception, And The Constitution, Mark Strasser

Mark Strasser

In Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the …

Death By A Thousand Cuts: The Illusory Safeguards Against Funding Pervasively Sectarian Institutions Of Higher Learning, Mark Strasser

Mark Strasser

Death by a Thousand Cuts: The Illusory Safeguards against Funding Pervasively Sectarian Institutions of Higher Learning

Tilton v. Richardson, Hunt v. McNair, and Roemer v. Board of Public Works are often thought to offer a coherent view of the Establishment Clause limitations on funding religiously affiliated institutions of higher learning. But the decisions themselves offer inconsistent analyses of Establishment Clause limitations and, further, were the analyses in these cases applied more generally, Establishment Clause guarantees would be even less robust than they are currently thought to be.

The difficulties for the Court in offering a coherent approach to public funding …

Repudiating Everson: On Buses, Books, And Teaching Articles Of Faith, Mark Strasser

Mark Strasser

Ever since deciding Everson v. Board of Education, the Court has wrestled with the proper way to characterize the limitations imposed on the states by the Establishment Clause. Many of the cases have involved the extent to which the state can give aid to the parents of children attending primary and secondary sectarian schools. The Court’s understanding of the limits on this kind of aid has changed markedly over the past sixty years, having first involved an analysis of the degree to which the state would be aiding religious teaching and then having changed to an analysis of whether the …