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Full-Text Articles in Law
Why Distinguish Religion, Legally Speaking?, Winnifred Fallers Sullivan
Why Distinguish Religion, Legally Speaking?, Winnifred Fallers Sullivan
San Diego Law Review
Law professors commonly answer this critique by scholars of religion, as Andrew Koppelman does, with the comment that, after all, any ambiguity in definition only arises in a few cases. Most of the time the reference is obvious, he says. Moreover, he insists, it has worked fine for all those for whom it should work. But that is the problem—its very obviousness. The problems of exclusion are largely invisible. The reference is so obvious to many and so obviously inclusive of those who are deserving that there is no way to have a conversation about it without the conversation devolving …
How Much Autonomy Do You Want?, Maimon Schwarzschild
How Much Autonomy Do You Want?, Maimon Schwarzschild
San Diego Law Review
At root, the questions of special accommodation and religious adjudicatory independence arise most urgently when a government grows in its reach and ambition. After all, if most areas of life, including those that touch on religious life, are left to people’s private arrangement, then not much special accommodation will be necessary. But when government takes control over more and more areas of life, regulating who shall do what and under what rules and conditions, then clashes with one or another religious way of life are almost inevitable. The dispute over government mandates to provide abortive drugs and contraception, in the …
Religion As A Legal Proxy, Micah Schwartzman
Religion As A Legal Proxy, Micah Schwartzman
San Diego Law Review
In what follows, after briefly summarizing Koppelman’s position, I argue that his view is vulnerable to the charge that using religion as a legal proxy is unfair to those with comparable, but otherwise secular, ethical and moral convictions. Koppelman has, of course, anticipated this objection, but his responses are either ambivalent or insufficient to overcome it. The case for adopting religion as a proxy turns partly on arguments against other potential candidates. In particular, Koppelman rejects the freedom of conscience as a possible substitute. But even if he is right that its coverage is not fully extensive with the category …
After Caronia: First Amendment Concerns In Off-Label Promotion, Stephanie M. Greene
After Caronia: First Amendment Concerns In Off-Label Promotion, Stephanie M. Greene
San Diego Law Review
The government has successfully prosecuted pharmaceutical companies for off-label promotion of drugs, maintaining that such promotion impermissibly undermines the FDA’s premarket approval process and jeopardizes the public health. In several recent cases, however, pharmaceutical companies have alleged that regulations prohibiting such promotion are unconstitutional because off-label promotion is protected under the First Amendment. Two recent U.S. Supreme Court cases contain language that gives broad protection to advertising and marketing in the pharmaceutical field. This Article questions the reach of these cases as applied to the practice of off-label promotion through detailing.
False Speech: Quagmire?, Christopher P. Guzelian
False Speech: Quagmire?, Christopher P. Guzelian
San Diego Law Review
Recently decided cases in several Federal Courts of Appeals and the United States Supreme Court show that First Amendment false speech case law is contradictory and unpredictable. This Article gives examples and concludes that legal liability for false speech will continue to be arbitrary and even susceptible to intentionally unjust decisionmaking if judges and juries individually and collectively disregard or downplay the necessity of an honest search for truth under the guise of tolerance and evenhandedness. If Americans wish to avoid an anything-goes “quagmire” about truth, they must—despite inevitable resistance in a civilization increasingly rife with skeptics—undergo transformations of their …