Law Commons^™

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Faculty Scholarship

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a …

Religious Law Schools: Tension Between Conscience And Academic Freedom, Kent Greenawalt

Faculty Scholarship

My comments this afternoon are responsive to John Garvey’s Presidential
Address on Institutional Pluralism at last year’s meeting. The gist of his
address, delivered gracefully, undogmatically, and persuasively, is that it may
be desirable to have law schools that are devoted substantially to particular
endeavors and points of view. Dean Garvey mentioned law schools that
concentrate on teaching particular subjects, such as law and economics, or
training for geographical areas, such as northern New York, or preparing
for forms of practice, such as clinical work, or helping a particular group of
potential lawyers, such as African‑Americans, or reflecting a special …

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

Much of this essay is an inquiry into just how cultural factors might figure in claims about elements of offenses, justifications, excuses, and mitigations under the Model Penal Code – still the most comprehensive and systematic code of criminal law in the United States. That exploration gives us a sense of how culture may matter for criminal liability absent a specifically labeled "cultural defense"; it also provides an idea of how much could be accomplished by expansions of the standard defenses.

In the latter part of the essay, I think about cultural practices as a potential justification or generalized exemption …

Establishment Clause Limits On Free Exercise Accommodations, Kent Greenawalt

Faculty Scholarship

Among the most vexing questions in the law of the religion clauses is when a legal measure that might otherwise be justified as an accommodation to free exercise is instead a forbidden establishment of religion. In a book about free exercise, I have provided some idea just how complex this question can be. I now tackle it head on. Scholars have fairly observed that the Supreme Court has given us no theory, or no tenable theory, for drawing the line between permissible accommodation and impermissible establishment. We will look at what the Court has said and done, as well as …

Religious Law And Civil Law: Using Secular Law To Assure Observance Of Practices With Religious Significance, Kent Greenawalt

Faculty Scholarship

Civil law in the United States rarely helps to enforce religious standards or demands that people perform actions whose significance relates to religious obligations. Yet, some American states do have such involvement with certain observances of Orthodox and Conservative Judaism. Many states enforce kosher requirements, to which Orthodox and some Conservative Jews adhere. The laws, which penalize fraud in the labeling of products as kosher, serve the secular interest in preventing deception of consumers. However, the laws also force the state to decide when religious regulations have been violated.

Orthodox and Conservative Jewish divorces raise a second kind of involvement. …

Quo Vadis: The Status And Prospects Of Tests Under The Religion Clauses, Kent Greenawalt

Faculty Scholarship

As the 1994 term drew to a close, "tests" for the Religion Clauses were in nearly total disarray. Apart from cases of discrimination against religions, and disputes over church property, a student of the Supreme Court's jurisprudence could not formulate any general tests that a majority of the Justices clearly support. As exciting as this state of affairs is for those who welcome uncertainty and change, it is disquieting for lawyers and clients, for judges who must decide free exercise and establishment claims, and for Supreme Court Justices who aspire to stable principles of adjudication. In this essay, I provide …