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Full-Text Articles in Law

More Is Less, Philip A. Hamburger Jan 2004

More Is Less, Philip A. Hamburger

Faculty Scholarship

Is the First Amendment's right of free exercise of religion conditional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that "the right of every man to exercise ['Religion'] ... is in its nature an unalienable right" and "therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society." In contrast, during the past forty years, the United States Supreme Court has repeatedly conditioned the right of free exercise on compelling government interests. The Court not merely qualifies the practice of the ...


Monogamy's Law: Compulsory Monogamy And Polyamorous Existence, Elizabeth F. Emens Jan 2004

Monogamy's Law: Compulsory Monogamy And Polyamorous Existence, Elizabeth F. Emens

Faculty Scholarship

Right now, marriage and monogamy feature prominently on the public stage. Efforts to lift prohibitions on same-sex marriage in this country and abroad have inspired people on all sides of the political spectrum to speak about the virtues of monogamy's core institution and to express views on who should be included within it. The focus of this article is different. Like an "unmannerly wedding guest," this article invites the reader to pause amidst the whirlwind of marriage talk and to think critically about monogamy and its alternatives.


The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke Jan 2004

The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Franke offers an account of the Supreme Court's decision in Lawrence v. Texas. She concludes that in overruling the earlier Bowers v. Hardwick decision, Justice Kennedy does not rely upon a robust form of freedom made available by the Court's earlier reproductive rights cases, but instead announces a kind of privatized liberty right that affords gay and lesbian couples the right to intimacy in the bedroom. In this sense, the rights-holders in Lawrence are people in relationships and the liberty right those couples enjoy does not extend beyond the domain of the private. Franke ...


Nine Justices, Ten Years: A Statistical Retrospective, Robert J. Jackson Jr., Thiruvendran Vignarajah Jan 2004

Nine Justices, Ten Years: A Statistical Retrospective, Robert J. Jackson Jr., Thiruvendran Vignarajah

Faculty Scholarship

The 2003 Term marked an unprecedented milestone for the Supreme Court: for the first time in history, nine Justices celebrated a full decade presiding together over the nation's highest court.' The continuity of the current Court is especially striking given that, on average, one new Justice has been appointed approximately every two years since the Court's expansion to nine members in 1837.2 Although the Harvard Law Review has prepared statistical retrospectives in the past,3 the last decade presents a rare opportunity to study the Court free from the disruptions of intervening appointments.

Presented here is a ...