Law Commons^™

Independent And Overlapping: Institutional Religious Freedom And Religious Providers Of Social Services, Kathleen A. Brady

Loyola University Chicago Law Journal

Roughly two decades ago, scholarly interest in the limits of government involvement in religious institutions exploded. Scholars explored distinctions between the spiritual and temporal dimensions of human activity and identified numerous individual, social, spiritual and civic goods associated with independent religious groups. From these foundations, they defined and refined areas of protection and immunity from government intervention. A shared premise of much of this work was that religious matters belong to religious believers and their institutions, and that the internal governance and operations of these institutions must be kept from state interference. In 2012, this scholarship bore fruit when the …

Curriculum Censorship Of Lgbtq+ Identity: Modern Adaptation Of Vintage "Save Our Children" Rhetoric Is Still Just Discrimination, Cathryn M. Oakley

Loyola University Chicago Law Journal

Underpinning Florida’s 2022 “Don’t Say Gay or Trans” law is the same vintage, discriminatory rhetoric that has been invoked to harm LGBTQ+ people for decades: that LGBTQ+ people are deviant and fundamentally sexual, therefore even the most chaste acknowledgement of the existence of LGBTQ+ people is inherently inappropriate for children. LGBTQ+ students, students with LGBTQ+ family members, and LGBTQ+ school employees are protected by the constitution, including the First and Fourteenth amendments as well as federal civil rights law. Whether censorship of LGBTQ+ identities is effectuated directly, as in Florida, or indirectly through opt-outs, the dignitary harm is done. Curriculum …

Locating Free-Exercise Most-Favored-Nation-Status (Mfn) Reasoning In Constitutional Context, Alan E. Brownstein, Vikram David Amar

Loyola University Chicago Law Journal

This Article examines the theoretical and doctrinal origins and consequences of a potentially game-changing approach to processing claims brought under the Free Exercise Clause of the First Amendment. Since 1990, and the decision in Employment Division v. Smith, the Court has read that Clause not to require accommodation of religious activity via exemptions from religion-neutral and generally applicable laws and regulations. What the Free Exercise Clause does prohibit, according to Smith, is government action targeting or discriminating against religion. But the Court’s decision a year ago in Tandon v. Newsom provides some powerful evidence about how this doctrine …

Table Of Contents, Loyola University Chicago Law Journal

Loyola University Chicago Law Journal

No abstract provided.

From Conciliation To Conflict: How Dobbs V. Jackson Women's Health Organization Reshapes The Supreme Court's Role In American Polarized Society, Shai Stern

Loyola University Chicago Law Journal

Professor Shai Stern of Bar Ilan University in Israel analyzes the Court’s decision and argues that its approach not only denies a previously recognized constitutional right, but also opens the door for the challenge to other recognized rights. In addition, Professor Stern highlights the Court’s own delegitimization and contribution to rising political polarization.

Razing & Rebuilding Delinquency Courts: Demolishing The Flawed Philosophical Foundation Of Parens Patriae, Eduardo R. Ferrer

Loyola University Chicago Law Journal

Professor Eduardo R. Ferrer of Georgetown University explores the history and background of the juvenile delinquent system in the United States. Professor Ferrer argues that the philosophical underpinnings of our legal youth systems, under the concept of parens patriae, have led to failure with regard to how states care for children that come under their control—and ultimately need to be abandoned in favor of a more effective and just system.

When Claims Collide: Students For Fair Admissions V. Harvard And The Meaning Of Discrimination, Cara Mcclellan

Loyola University Chicago Law Journal

This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleg-ing that Harvard engages in intentional discrimination …

Table Of Contents, Loyola University Chicago Law Journal

Loyola University Chicago Law Journal

No abstract provided.

Law School Plagiarism: A Measured Solution For An Unmeasured Problem, Ashley S. Lipson

Loyola University Chicago Law Journal

No abstract provided.

"So" What? Why The Supreme Court's Narrow Interpretation Of The Computer Fraud And Abuse Act In Van Buren V. United States Has Drastic Effects, Landon Wilneff

Loyola University Chicago Law Journal

In Van Buren v. United States, the United States Supreme Court held that one does not “exceed authorized access” under the Computer Fraud and Abuse Act (CFAA) when one accesses information they were otherwise entitled to access. Part I will outline the legislative history of the CFAA, and will explain the circuit split between the Second, Fourth, Sixth, and Ninth Circuits and the First, Third, Fifth, and Seventh Circuits. Part II will detail the facts and procedural history of Van Buren, and will walk through the reasoning of the majority and dissent. Part III will analyze the majority’s narrow reading …

The Establishment Clause, Civil Rights, And The Accomodationist Path Forward, Lisa Shaw Roy

Loyola University Chicago Law Journal

The U.S. Supreme Court’s First Amendment Religion Clause doctrine is undergoing a transition between the Court’s older, strict separationist decisions and its current accommodationist approach. This shift can be seen in the Court’s most recent Establishment and Free Exercise Clause decisions, and in particular, in its unanimous Free Speech Clause decision in Shurtleff v. City of Boston, a case which found that the challenger, Harold Shurtleff, had a First Amendment right to raise a flag with a cross on a city flagpole. In many ways, Shurtleff exemplifies the Court’s incremental movement toward an accommodationist Establishment Clause doctrine, and this …

Introduction To Issue Three, Paul W. Kucinski

Loyola University Chicago Law Journal

No abstract provided.

Mandatory Judging, Douglas R. Richmond

Loyola University Chicago Law Journal

As a matter of judicial ethics, judges must disqualify themselves in matters in which their impartiality may reasonably be questioned. This key principle implicates two additional aspects of judicial ethics: the duty to sit and the rule of necessity. The duty to sit basically describes a judge’s duty to preside over a case unless disqualified as a matter of judicial ethics. Or, phrased another way, a judge must hear a case if her impartiality cannot reasonably be questioned. Recognition of the duty to sit means that judges may not disqualify themselves based on their unease with cases, personal or professional …

Arbitration Under Union-Negotiated Collective-Bargaining Agreements: The Need For Perspicuity When Employees Waive The Right To Pursue Discrimination Claims In Federal Court, Travis Thickstun

Loyola University Chicago Law Journal

How clear and unmistakable should arbitration clauses be when employees waive their right to pursue discrimination claims in federal court under union-negotiated collective-bargaining agreements? The United States courts of appeals have been split on this question since the Supreme Court handed down its decisions in Wright v. Universal Maritime Service Corp. and 14 Penn Plaza LLC v. Pyett. In Wright, the Court held that waiver in union-negotiated collective-bargaining agreements must be “clear and unmistakable.” Eleven years later, in Pyett, the Court affirmed its clear-and-unmistakable standard for waiver of a union member’s right to pursue her statutory claim through litigation. Since …

Federal Election Commission V. Ted Cruz For Senate: How The Supreme Court Is Clearing The Way For Corruption In Politics, Sarah B. Gleason

Loyola University Chicago Law Journal

Political speech lies at the heart of the First Amendment. Candidates for office have the constitutional right to raise funds to express their viewpoints, run campaigns, and associate with their supporters. However, leaving this flow of money unchecked creates a risk that candidates will sell the promise of political favors for increased monetary support from voters. Congress passed Section 304 of the Bipartisan Campaign Reform Act to prevent the risk of quid pro quo corruption, which is heightened when donors contribute money to candidates after the election for the sole purpose of retiring the candidates’ personal loans. Section 304 restricted …

Constructing The Establishment Clause, Vincent Phillip Muñoz, Kate Hardiman Rhodes

Loyola University Chicago Law Journal

In this Article, we attempt to document how the history of the Supreme Court’s Establishment Clause jurisprudence is a history of constructionism, much of it—though not all—originalist in flavor. We use “construction” in a technical sense and in contradistinction to “interpretation.” Construction is the act of importing meaning into the constitutional text. To document and explain how leading Supreme Court justices have engaged in originalist constructionism, we employ the interpretation-construction distinction as well as two additional analytical concepts recently discussed by leading legal scholars: Sam Bray’s recovery of “the mischief rule” and Jack Balkin’s textual typology of principles, standards, and …

Justice Alito, Originalism, And The Aztecs, Andrew Koppelman

Loyola University Chicago Law Journal

No abstract provided.

Is Church Autonomy Jurisdictional?, Lael Weinberger

Loyola University Chicago Law Journal

The First Amendment’s religion clauses create what courts have called “church autonomy doctrine,” protecting the internal self-governance of religious institutions. But courts are divided as to whether this doctrine is simply an affirmative defense for religious institutions or a jurisdictional limitation on courts’ ability to adjudicate internal religious matters. Scholars, meanwhile, have long debated whether church autonomy is jurisdictional at a higher level of abstraction, speaking of jurisdiction as a concept of authority rather than a technical term for civil procedure. This Article engages this multilevel debate with an argument for unbundling. First, it urges unbundling conceptual jurisdiction from judicial …

Religious Nondelegation, B. Jessie Hill

Loyola University Chicago Law Journal

The problem of religious exemptions has given rise to a rich body of scholarly literature, as well as a flood of litigation. One recent set of cases involved challenges to the Affordable Care Act’s (ACA) health care mandates—Section 1557 and the contraceptive mandate—and their religious exemptions. Some scholars have argued that religious exemptions violate the Establishment Clause when they confer a benefit on religious individuals, the costs of which are largely borne by those who do not share the religious individuals’ beliefs—a notion that is sometimes expressed in terms of “third-party harms.” The third-party harms approach to Establishment Clause violations …

The New Thoreaus, Mark L. Movsesian

Loyola University Chicago Law Journal

Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the nineteenth century transcendentalist Henry David Thoreau would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly sixty-six million people—now claim, like Thoreau, to …

Families, Schools, And Religious Freedom, Helen M. Alvaré

Loyola University Chicago Law Journal

Old and New Testament scriptures persistently point to human beings’ romantic and familial relationships according to Christian norms as means of glimpsing foundational religious beliefs about God’s identity, how God loves human beings, and how human beings are to love Him and one another. Christian families, therefore, are alarmed to witness public schools educating minors using normative materials directly opposing Christian norms, and doing so outside of courses subject to parental opt-ins or opt- outs. The Supreme Court has not weighed in on the precise question of parental rights respecting particular educational content of this type, but lower federal courts …

United States V. Vaello-Madero: The Impact Of Varying Rights To Citizens Of The United States, Ana Siracusa

Loyola University Chicago Law Journal

Since 1917, residents of Puerto Rico have been citizens of the United States. However, because of Puerto Rico’s status as a United States territory, residents of Puerto Rico are not automatically guaranteed the same constitutional rights as other citizens of the United States. When faced with the question of what constitutional rights residents of Puerto Rico are entitled to, the Supreme Court has continued to perpetuate the otherness of United States territories. This disposition results from the United States’ colonial mindset in the acquisition and government of its territories. The discrimination against United States territories, namely Puerto Rico, has bled …

Ignored, Harassed, And Endangered: States Must Provide Gender-Affirming Healthcare To Transgender Youth In Juvenile Detention, Jake Gnolfo

Loyola University Chicago Law Journal

In 2019, the U.S. Court of Appeals for the Ninth Circuit in Edmo v. Corizon, Inc. held a prison’s denial of gender-affirming care to a transgender adult prisoner constituted cruel and unusual punishment under the Eighth Amendment. However, the reality for incarcerated transgender juveniles is much different. It is incredibly hard, if not impossible, for transgender juveniles to obtain access to gender-affirming care while detained. Furthermore, states have begun banning gender-affirming healthcare for all transgender youth. Preliminary injunctions of these laws have been swift and successful; however, transgender juveniles remain left out of the conversation. While being restrained of their …

Torture, Ethics, Accountability?, David R. Katner

Loyola University Chicago Law Journal

Torture--including waterboarding--has been banned under international and domestic law in the United States dating back to World War II when the U.S. sought to hold Japanese interrogators accountable for waterboarding American prisoners of war. Following the 9/11 attacks on the World Trade Center and the Pentagon, the Bush administration sought legal justification from White House counsel to detain and initiate interrogation practices long considered to constitute acts of torture. After legal memos were drafted, psychologists and physicians along with nurses and other medical professionals engaged in waterboarding and other forms of abusive interrogation often resulting in no reliable intelligence from …

Bargain Basement Progressivity? Constitutional Flat Taxes, Demogrants, And Progressive Income Taxation, Samuel D. Brunson

Loyola University Chicago Law Journal

State and local governments raise revenue in three primary ways: property, sales, and income taxes. Property and sales taxes tend to impose a higher burden on low-income households. To ensure the fairness and progressivity of their overall revenue system, states need their income tax to be sufficiently progressive.

Four states face an apparently insurmountable barrier to progressive income taxation: their state constitutions mandate that any income tax must have a flat rate, applicable to all taxpayers. Without a constitutional amendment, a difficult process, they cannot adopt marginal rates that increase as income increases.

While the impediment appears insurmountable, however, it …

Addressing The Inevitability Of Race In The Doj’S Enforcement Of The Pattern-Or-Practice Initiative, Joshua Chanin

Loyola University Chicago Law Journal

Section 14141 of the 1994 Crime Act empowers the U.S. Department of Justice (DOJ) to investigate and drive reform of local law enforcement agencies found to have engaged in a pattern or practice of misconduct. During the Trump administration, the DOJ willfully allowed its powers under this section to lie dormant, despite a number of high-profile incidents of police violence against Black Americans. Active enforcement of Section 14141 affords the federal executive branch significant opportunities to promote lawful policing. Using its pattern-or-practice authority, the DOJ has guided dozens of law enforcement agencies through a process designed to remedy systemic unlawful …

Masking Free Speech: The First Amendment Implications Of Masks, Clothing, And Public Health, Roy S. Gutterman

Loyola University Chicago Law Journal

Regulations mandating the wearing of face coverings to prevent the spread of COVID-19 have encountered resistance on a variety of grounds. This article analyzes the constitutional status of mask requirements from a free-speech perspective, differentiating between the issue of written words or logos on a mask as a form of speech, and the ability to keep one’s face uncovered as a speech right in itself. It examines the similarities and distinctions between challenges to mask mandates and other First Amendment objections to government restrictions related to clothing (or the lack thereof)—from public nudity prohibitions, to motorcycle helmet laws, to regulations …

American Kaleidoscope: An Intersectional Approach To The Cultural Defense, Lillian Mobley

Loyola University Chicago Law Journal

The cultural defense is a controversial legal strategy that allows criminal defendants to offer evidence of their native culture to mitigate culpability. While courts usually decline to formally consider these defenses, cultural influences are increasingly present in the courtroom, demanding recognition in the midst of a Eurocentric legal system. The cultural defense can be an important tool for achieving justice in minority and immigrant communities. In practice, however, the defense can slip dangerously off-course, reinforcing white American norms and reductive stereotypes. Ultimately, an “official” defense allowing cultural evidence at trial may cause more harm than good. Instead, this Comment advocates …

Afghanistan On A Global Stage: The End Of Armed Conflict And Congress’S Constitutional Powers, Emmie Phillips

Loyola University Chicago Law Journal

On August 15, 2021, the Taliban took control of Kabul, ending their weeks-long takeover of Afghanistan. Distraught by the quick offensive, United States forces and their allies quickly secured the Kabul airport and were forced to accelerate their planned withdrawal from the country in a makeshift manner. Afghan civilians, particularly those who had supported the efforts of U.S. forces, desperately attempted to get out of the country. The chaotic and disorganized withdrawal was not well received, both in the United States and internationally.

Prior to the Taliban takeover, President Joe Biden had ordered the U.S. withdrawal, with an expected end …

Unincorporating Qualified Immunity, Teressa Ravenell

Loyola University Chicago Law Journal

Scholars, judges, activists, and policymakers alike have criticized the doctrine of qualified immunity, which emerged in Pierson v. Ray to shield government actors from monetary liability in a wide range of suits filed under 42 U.S.C. § 1983, derived from the Civil Rights Act of 1871. These criticisms have ranged from the practical to the principled, but they largely ignore the question of statutory interpretation: is it valid to read § 1983, which makes no mention of any defense or immunity, as incorporating a qualified defense for government officials who acted in good faith and with probable cause? The Court …