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Articles 1 - 11 of 11
Full-Text Articles in Law
The First Amendment Walks Into A Bar: Trademark Registration And Free Speech, Rebecca Tushnet
The First Amendment Walks Into A Bar: Trademark Registration And Free Speech, Rebecca Tushnet
Notre Dame Law Review
This Article analyzes the First Amendment arguments against section
2(a)’s disparagement bar with reference to the consequences of any
invalidation on the rest of the trademark statute. My fundamental conclusions
are that In re Tam is wrongly reasoned even given the Supreme Court’s
increased scrutiny of commercial speech regulations, and that to hold otherwise
and preserve the rest of trademark law would require unprincipled distinctions
within trademark law. More generally, the Supreme Court’s First
Amendment jurisprudence has become so expansive as to threaten basic
aspects of the regulatory state; the result of subjecting economic regulations
such as trademark registration to …
Two Aspects Of Liberty, John H. Garvey
Two Aspects Of Liberty, John H. Garvey
Notre Dame Law Review
Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do …
Partly Accultured Religious Activity: A Case For Accommodating Religious Nonprofits, Thomas C. Berg
Partly Accultured Religious Activity: A Case For Accommodating Religious Nonprofits, Thomas C. Berg
Notre Dame Law Review
This Article argues that we should make real efforts to protect religious freedom for partly acculturated religious activities and organizations. We should not reject their claims broadly or per se and thereby exclude them from the efforts at accommodation that other groups receive. The law should not force all religious organizations and activities into one of the two polar categories, acculturated or unacculturated. Part II of this Article presents several reasons why there is a strong interest in protecting the freedom to engage in partly acculturated religious activity.
Virtue, Freedom, And The First Amendment, Marc O. Degirolami
Virtue, Freedom, And The First Amendment, Marc O. Degirolami
Notre Dame Law Review
The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods—as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost. The Article concludes with two speculations. First, it seems we are no longer …
Catholic Constitutionalism From The Americanist Controversy To Dignitatis Humanae, Anna Su
Catholic Constitutionalism From The Americanist Controversy To Dignitatis Humanae, Anna Su
Notre Dame Law Review
This Article, written for a symposium on the fiftieth anniversary of Dignitatis Humanae, or the Roman Catholic Church’s Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of the late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U.S. Constitution was a crucial factor in shaping Church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century, …
Religious Exemptions, Third-Party Harms, And The Establishment Clause, Christopher C. Lund
Religious Exemptions, Third-Party Harms, And The Establishment Clause, Christopher C. Lund
Notre Dame Law Review
Religious exemptions are important, and sometimes required by the Free Exercise Clause. But religious exemptions can also be troubling, and sometimes forbidden by the Establishment Clause. It is the latter issue with which this Essay concerns itself. But now a different question, which raises a different conception of the Establishment Clause: When are religious exemptions improper or unconstitutional because they burden third parties? This issue of third-party harms has received a lot of attention, especially in light of Hobby Lobby. Hobby Lobby initially sought an exemption from the contraceptive mandate that would have come at the expense of their employees, …
If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders’ Constitutionalism Of The Inalienable Rights Of Religious Liberty, Vincent Phillip Munoz
If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders’ Constitutionalism Of The Inalienable Rights Of Religious Liberty, Vincent Phillip Munoz
Notre Dame Law Review
The Article is divided into three Parts. Part I documents the Founders’ shared understanding that religious liberty is a natural right possessed by all individuals. Part II explains what the Founders meant when they labeled aspects of religious liberty an “unalienable” natural right. The inalienable character of the core of religious liberty reveals what the Founders found special about religion. It also accounts for religion’s special constitutional status, which for the Founders primarily meant specific jurisdictional limits on state sovereignty rather than exemptions. Part III further clarifies the Founders’ constitutionalism of religious freedom by explaining how the Founders understood natural …
The Tortuous Course Of Religious Freedom, Steven D. Smith
The Tortuous Course Of Religious Freedom, Steven D. Smith
Notre Dame Law Review
This Essay, written for a conference at Notre Dame on Dignitatis Humanae, considers new challenges to and issues for religious freedom that have arisen recently in a world significantly changed from that of the 1960s, when the Declaration was first issued.
Adoption And Foster Care Placement Policies: Legislatively Promoting The Best Interest Of Children Amidst Competing Interests Of Religious Freedom And Equal Protection For Same-Sex Couples, Samantha R. Lyew
Journal of Legislation
No abstract provided.
Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams
Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams
Court Briefs
No. 15.1005
Chabad-Lubavitch of Michigan v. Dr. Dov Schuchman
On Petition for a Writ of Ceriorari to the Supreme Court of Michigan
This brief addresses the importance of the principle of church autonomy and the protections provided by the First and Fourteenth Amendments and this Court's precedents regarding religious denominations' internal mandatory dispute-resolution procedures.
Inside The Taft Court: Lessons From The Docket Books, Barry Cushman
Inside The Taft Court: Lessons From The Docket Books, Barry Cushman
Journal Articles
For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …