Law Commons^™

Corporations, Taxes, And Religion: The Hobby Lobby And Conestoga Contraceptive Cases, Steven Willis

Steven J. Willis

Beginning in 2013, the federal government mandated that general business corporations include contraceptive and early abortion coverage in large employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act. So far, courts have been reluctant to hold corporations have religious rights of their own; as a …

The Worms And The Octopus: Religious Freedom, Pluralism, And Conservatism, Richard Garnett

Richard W Garnett

formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and …

The Meaning Of Hobby Lobby: Bedrooms, Boardrooms & Burdens, Anne Tucker

Anne Tucker

No abstract provided.

Is The First Amendment Working?, Kent Greenfield

Kent Greenfield

No abstract provided.

The Pluralistic Foundations Of The Religion Clauses, Steven Shiffrin

Steven H. Shiffrin

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …

Religious Liberty: Between Strategy And Telos, Kristine Kalanges

Kristine Kalanges

It has become woefully commonplace to observe that threats to religious freedom are increasing in the United States and globally. In response, scholars, human rights activists, and policymakers are engaging courts, political institutions, and the public square to make the case that religious liberty merits robust protection. Historically, these arguments were crafted primarily in theological and political terms. But as the number of those disclaiming religious affiliation rises and the political climate becomes ever more gridlocked, the search is on for new ways to make religious freedom relevant to state leaders and salable to a diverse public. Thus, during a …

Talking Points On Report Of The Special Rapporteur On Freedom Of Religion Or Belief, Kristine Kalanges

Kristine Kalanges

To support the Holy See in its work at the United Nations, the Caritas in Veritate Foundation, in Geneva, Switzerland, and the Center for Catholic Studies at the University of St. Thomas in Minnesota, collaborated in preparing reports on current issues discussed at the United Nations. The Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy, a joint venture between the Center for Catholic Studies and the School of Law at the University of St. Thomas, supports this collaboration, helps identify experts to draft these reports and, with the authors' permission, makes them available on its website. In …

The Limits Of Free Speech, Kent Greenfield

Kent Greenfield

No abstract provided.

First Amendment Freedom Of Speech And Religion - October 2009 Term, Burt Neuborne, Michael Dorf

Michael C. Dorf

No abstract provided.

Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory Sisk, Michael Heise

Michael Heise

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in …

The Case Against The Legality Of Press Areas, Chiehwen Ed Hsu

Chiehwen Ed Hsu

No abstract provided.

De Minimis Content Discrimination: The Vexing Matter Of Sign-Ordinance Exemptions, Marc Rohr

Marc Rohr

Introducing A Takedown For Trade Secrets On The Internet, Elizabeth Rowe

Elizabeth A Rowe

This Article explores, for the first time, an existing void in trade-secret law. When a trade-secret owner discovers that its trade secrets have been posted on the Internet, there is currently no legislative mechanism by which the owner can request that the information be taken down. The only remedy to effectuate removal of the material is to obtain a court order, usually either a temporary restraining order or a preliminary injunction. When a trade secret appears on the Internet, the owner often loses the ability to continue to claim it as a trade secret and to prevent others from using …

Symposium: Religious Pluralism, Civic Unity, And The Judicial Role, Richard Garnett

Richard W Garnett

Rick Garnett posted, as a guest author, to the SCOTUSblog Special Feature: Legislative prayer symposium Legislative prayer symposium the article Symposium: Religious pluralism, civic unity, and the judicial role on May 8.

Religious Freedom Is A Human Right -- For Family Businesses Too, Paolo Carozza

Paolo G. Carozza

Paolo Carozza posted "Religious Freedom is a Human Right -- For Family Businesses Too" in Congress Blog the Hill's Forum for Lawmakers and Policy Professionals on April 3, 2014.

Religious Rights Of Corporations, Part 2, Kent Greenfield

Kent Greenfield

Fast Forward 50 Years: Protecting Uninhibited, Robust, And Wide-Open Debate After New York Times Co. V. Sullivan, Amy Sanders

Amy Kristin Sanders

Just Like A Prayer?, Richard Garnett

Richard W Garnett

Rick Garnett was quoted in The American Prospect article Just Like a Prayer? on November 1, 2013 Quotations below: But Rick Garnett, a professor of law and political science at the University of Notre Dame, says that’s a stretch, even for Kennedy. “Sure, there are children who come to municipal government meetings, but there are a whole lot of tourists and children who come to Congress,” he says. “I don’t think the court will want to take that vague idea of peer pressure as coercion and expand it beyond the school context.” From Garnett’s perspective, this is a good thing. …

William H. Sorrell, Attorney General Of Vermont, Et Al. V. Ims Health Inc., Et Al. - Amicus Brief In Support Of Petitioners, Kevin Outterson, David Orentlicher, Christopher Robertson, Frank Pasquale

Frank A. Pasquale

On April 26, 2011, the US Supreme Court will hear oral arguments in the Vermont data mining case, Sorrell v. IMS Health Inc. Respondents claim this is the most important commercial speech case in a decade. Petitioner (the State of Vermont) argues this is the most important medical privacy case since Whalen v. Roe. The is an amicus brief supporting Vermont, written by law professors and submitted on behalf of the New England Journal of Medicine

I'Ll Huff And I'Ll Puff - But Then You'll Blow My Case Away: Dealing With Dismissed And Bad-Faith Defendants Under California's Anti-Slapp Statute, Jeremiah Ho

Jeremiah A. Ho

This Article will demonstrate that, despite efforts to recognize SLAPPs and to safeguard our legal process from abuses, SLAPP suits and their underlying interference with the legitimate exercise of the right to petition can often engender new ways of creeping back onto the legal stage to wreak havoc on the private citizen - that the devious, shape-shifting Big Bad Wolf of First Amendment rights can return to reprise its role as the subversive villain and to trot unsuspecting litigants out to slaughter. After an introduction into the general world of SLAPPs and the specific history behind California's section 425.16, this …

Limited Powers In The Looking-Glass: Otiose Textualism, And An Empirical Analysis Of Other Approaches, When Activitists In Private Shopping Centers Claim State Constitutional Liberties, Richard Peltz-Steele

Richard J. Peltz-Steele

This article examines closely a narrow range of highly factually analogous cases, in which state constitutional rights are asserted despite a clear lack of entitlement to assert any federal constitutional claim. Specifically, the cases selected are those in which private persons assert a right to conduct expressive activity, including electoral activity, in private shopping centers during hours when the properties are held open to the general public. These cases may be referred to colloquially as “the mall cases.” Selected here are only those which were decided after the federal question became clear. The Article first inquires into the role of …

Fidelity Diluted: Client Confidentiality Gives Way To The First Amendment & Social Media In Virginia State Bar, Ex Rel. Third District Committee V. Horace Frazier Hunter, Jan Jacobowitz, Kelly Jesson

Jan L Jacobowitz

Fidelity and confidentiality are hallmarks of the attorney-client relationship. However, as social media use permeates the legal profession, new challenges have arisen to the traditional interpretation of client confidentiality. The Virginia Supreme Court’s recent holding, which concludes that to deny attorney Horace Hunter the ability to blog about his clients’ cases without client consent, after the case concludes and based upon what is found in the public record, is to deny Hunter his First Amendment right of free speech has spurned controversy. The Hunter opinion arguably undermines the long standing legal ethics rule of confidentiality and strikes at the heart …

Waiving Goodbye To A Fundamental Right: Allocation Of Authority Between Attorneys And Clients And The Right To A Public Trial, Alberto Bernabe

Alberto Bernabe

To Swear Or Not To Swear: Using Foul Language During A Supreme Court Oral Argument, Alan Garfield

Alan E Garfield

This essay considers the provocative question of whether it is strategically wise for a lawyer to use foul language during a Supreme Court oral argument. This issue doesn’t come up often. But it does when a lawyer claims his client’s First Amendment rights were violated when the government punished him for using foul language. If the lawyer doesn’t use his client’s offensive words, he risks conceding that these words are so horrid they warrant suppression. But if he does use the words, he risks alienating justices who find the words unseemly. The essay uses the “fleeting expletives” case that was …

Issues Of Law And Religion In The News -- Hutterites, Lorin Geitner

Lorin C. Geitner

The Hutterites are an Anabaptist group who live communally. This lifestyle has allowed them to compete against private construction firms in Montana. A new law requires the Hutterites to carry workers compensation for their members who work in construction. The Hutterites counter that they already have provisions in their society that provide all the coverage provided by workers compensation. The legislator who sponsored this bill says this bill is needed to provide an even playing field. What are the Hutterites history, beliefs and practices which lead them to believe this is redundant? What are the legal principles involved? Who is …

“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield

Alan E Garfield

One might have expected that the Supreme Court’s recent decision in the violent video game case, Brown v. Entertainment Merchants Ass’n, would have been a thoughtful balancing of society’s competing interests in protecting freedom of speech and protecting children from harm. After all, the Supreme Court had held decades earlier that the government could deny minors access to soft-porn, or what the Court called “girlie magazines.” So one could have assumed the Court would seriously consider California’s claim that minors also needed sheltering from the grittier world of violent video game rapes, beheadings, and ethnic cleansings. Yet, as Justice Scalia’s …

Interview With Professor Kent Greenfield About His Book “The Myth Of Choice: Personal Responsibility In A World Of Limits”, Kent Greenfield

Kent Greenfield

Professor Kent Greenfield’s newest release, The Myth of Choice: Personal Responsibility in a World of Limits (Yale University Press), is a broad-reaching view of the dynamics of choice.

Greenfield’s book begins with his knowledge of law and then ranges widely, tapping areas as diverse as sociology, the study of brain activity, and religious freedoms. He draws on scholarly commentary, news reports, political research polls and his own life decisions to complete the picture of choice and its many dimensions. Examining choice and its influence on public policy and legal theory, The Myth of Choice serves as a catalyst to challenge …

Does Legalzoom Have First Amendment Rights: Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine Lanctot

Catherine J. Lanctot

No abstract provided.

Concurring In Part & Concurring In The Confusion, Sonja West

Sonja R. West

When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege--Branzburg v. Hayes. "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel on the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand the arguments …

Commentary On Predicting Crime, Tom Bell

Tom W. Bell

The market mechanisms proposed in Predicting Crime offer many virtues. The authors describe several of these—unbiased information collection; incentives that encourage disclosure; opinions weighted by conviction; information aggregation; instantaneous and continuous feedback—and convincingly argue that these structural features stand to help prediction markets outperform alternative institutions in forecasting the interplay of crime rates and crime polices. In that, Predicting Crime adopts an economic point of view and speaks in terms of practical experience. After all, similar structural features have already appeared in other successful prediction markets, such as those offering trading in claims about the weather, flu outbreaks, or box …