Law Commons^™

Nicaea And Sovereignty, Craig G. Bateman

C. G. Bateman

This research is concerned with the development of international law in so far as it relates to the historical background for the Peace of Westphalia, which itself is understood as a seminal event in the history of the growth of both the theoretical notion of sovereignty and, in its present milieu, as an attribute of states. This research gets behind Westphalia, to suggest a plausible nexus of ideology and events which led to these treaties, and to focus specifically on the event which I suggest was the sin qua non development which led to the Westphalian concord. I suggest that …

Blood Libel: Radical Islam’S Conscription Of The Law Of Defamation Into A Legal Jihad Against The West—And How To Stop It, Robert A. Pate

Robert A Pate

On May 19th, 2009, a panel of distinguished legal professionals assembled in Washington, D.C. at a conference, entitled Libel Lawfare: Silencing Criticism of Radical Islam, to discuss radical Islam’s exploitation of Western libel laws to silence authors and journalists who seek to expose terror-financing networks and criticize radical Islam. The debate also embodied a cresting wave of public concern about the surprising ways Western laws enable this assault.This paper seeks to call attention to two critical mistakes, which were perpetuated by panelists at the conference and which are consistently present in current libel lawfare scholarship. Foremost, no one has yet …

And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg

Matthew E Feinberg

The gay marriage ban: it is one of the most controversial issues in politics, in society, in religion, and in law today. In each venue, anything goes, everyone has an opinion, and the result is rarely consistent. The decisions may be different, but the claimants’ arguments are usually the same – banning same-sex marriage denies same-sex couples equal protection under the law.

The pink elephant in the marriage equality courtroom is religion, yet it is extremely rare for same-sex marriage bans to receive First Amendment religious rights-based inquiry. In 2009, the Supreme Court of Iowa changed all that. In its …

Spirit Food And Sovereignty: Pathways For Protecting Indigenous Peoples' Subsistence Rights, Allison M. Dussias

Allison M Dussias

Abstract: SPIRIT FOOD AND SOVEREIGNTY: PATHWAYS FOR PROTECTING INDIGENOUS PEOPLES’ SUBSISTENCE RIGHTS

By Professor Allison M. Dussias

This article examines three pathways recently followed by Native American tribes and other Native communities in seeking protection of their rights to culturally valuable and legally protected subsistence resources – wild, renewable resources on which Native peoples have traditionally relied to sustain themselves. They have pursued their claims not only through litigation in U.S. courts, but also through claims to international bodies and through the regulatory process. The sources of law and rights on which they have relied as they followed these different …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, though …

The Employment Non-Discrimination Act: An Argument For H.R. 3685, Deborah L. Cook

Deborah L Cook

This article examines the language of H.R. 3685 and compares it to an earlier version of the Employment Non-Discrimination Act that was introduced in April of 2007 as H.R. 2015. Drawing upon arguments from both conservative and liberal perspectives challenging the Act, this article argues that the latest version of the Employment Non-Discrimination Act, proposed in September of 2007 as H.R. 3685, offers greater promise for protecting gay, lesbian and bisexual Americans from discrimination in the workplace. The revised Employment Non-Discrimination Act will act to ensure that individuals will be protected regardless of their sexual orientation by the same fundamental …

The Environmental Protection In The Islamic Waqf, Nada Y. Al-Duaij

Eisa H Al-Enizy Dr.

The Environmental Protection In the Islamic Waqf: A Case Study to the Situation in Kuwait This article will spot the light over the role of the Islamic rules in reinforcing the environmental protection, through the system of Islamic Waqf, which is similar to the actual trusteeship system adopted in recent legal and economic systems. Today, some countries such as Kuwait adopted the Islamic waqf as a national law, which resulted in establishing a public authority ruling the waqf in Kuwait which became an extreme financial empire capable to lend the government in some cases. This Waqf is subject to different …

A Jurisprudence Of Dogmatism: Religion, Rationality And The Case For Homosexual Rights, Dylan Zorea

dylan zorea

I contend that arguments derived from religious beliefs are incompatible with Constitutional jurisprudence because such views are generally irrational, and consequently, judicially incontestable. Yet, due to the significance of religion in the lives of many citizens, such arguments have continually intruded into matters of law and public policy. This has been the case particularly regarding the issue of homosexual rights, where a religiously grounded animus has made it difficult for gay and lesbian persons to enjoy the full protection of law. Because religious arguments cannot be rationally justified they must be excluded from judicial analysis. I will further argue that …

Licensing Facially Religious Government Speech: Summum's Impact On The Free Speech And Establishment Clauses, Scott W. Gaylord

Scott W. Gaylord

LICENSING FACIALLY RELIGIOUS GOVERNMENT SPEECH: SUMMUM’S IMPACT ON THE FREE SPEECH AND ESTABLISHMENT CLAUSES

Abstract

Scott W. Gaylord

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment—that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause—the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision …

Passive Observers, Passive Displays, And The Establishment Clause, Mark Strasser

Mark Strasser

A number of factors are thought relevant when deciding whether a particular state practice implicating religion violates constitutional guarantees: the age of the individuals who will be exposed to the practice, whether the practice at issue requires participation, whether the state is seen as endorsing religion, and whether the practice is coercive or proselytizing. What the current jurisprudence does not make clear, however, is whether the passive nature of a practice is an additional factor to be considered or whether, instead, describing a practice as “passive” is simply to use a conclusory term indicating that the practice does not violate …

“I’M Dying To Tell You What Happened”: The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Peter Nicolas

In Crawford v. Washington and its progeny, the U.S. Supreme Court has re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are “testimonial” in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote 6 of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. This manuscript builds on the dictum set forth in footnote 6 of Crawford, the meaning of which the lower courts are just beginning to explore. In the manuscript, I first demonstrate that the …

Piercing The Veil: Using Microfinance Initiatives To Promote Female Entrepreneurship In Muslim Countries, Patrick F. Madden

Patrick F. Madden

This paper argues that microfinance initiatives are an attractive aid mechanism to promote gender equality in Muslim countries because such initiatives both alleviate poverty and provide women with economic empowerment without violating Muslim customary banking laws. By promoting female entrepreneurship, microfinance initiatives are, perhaps, the most effective means of achieving the Millennium Development goal of gender equality without upsetting the Islamic governments or the prospective borrowers.

Judicial Martial Law - Appendix, David Randall Jenkins

David Randall Jenkins

No abstract provided.

Where Do Constitutional Modalities Come From? Complexity Theory And The Emergence Of Intradoctrinalism, Jesse R. Merriam

Jesse R Merriam

This article seeks to shed light on one of the most vexing and important problems in constitutional law and theory: how courts interpret the Constitution. Part I of the article begins by recounting the major theories of how courts should interpret the Constitution. Part I then explains why many scholars agree that Philip Bobbitt's modal approach has best addressed this problem. According to this approach, courts and lawyers use six modalities or methods to interpret the Constitution. Part I concludes by pointing out that Bobbitt's framework, though helpful, fails in two respects: it fails to explain where these modalities come …

Free Speech And Establishment Clause Rights At Public School Graduation Ceremonies: A Disclaimer: The Preceding Speech Was Government Censored And Does Not Represent The Views Of The Valedictorian, Frederick B. Jonassen

Frederick B. Jonassen

Free Speech and Establishment Clause Rights at Public School Graduation Ceremonies: A Disclaimer: The Preceding Speech Was Government Censored and Does Not Represent the Views of the Valedictorian By Frederick B. Jonassen This paper focuses on the valedictorian speech at public school graduation ceremonies. There are two cases pending in federal court in which valedictorians have included religious expression in their speeches without the permission of school authorities. In one instance, school officials cut off the valedictorian’s microphone; in the other, the principal allegedly refused to issue a diploma to the valedictorian unless she agreed to apologize for her speech. …

Prevention Or Pretext: The Designation Of Foreign Terrorist Organizations, Syed Ali M. Jafri

Syed Ali M. Jafri

This paper examines whether the “Foreign Terrorist Organization” & “Specially Designated Foreign Terrorists” designations are applied in a consistent manner. The author concludes that the designations are applied inconsistently and are used in the post September 11th era as a tool not only against legitimate terrorist targets, but also against the ideological opponents of United States foreign policy. Specifically the designations are used against Islamic based political movements. The pre-textual use of terrorist designations against ideological opponents weakens the United States position in the battle against terrorism, and undermines their legitimate security concerns. The current application of the designation schemes …

Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks

Frederick Mark Gedicks

Although formal religious tests for federal office are constitutionally prohibited, they have long been fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President. The “Judeo-Christian tradition” notwithstanding, no major party has ever nominated a Jew for president—let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever. Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is a “false” religion. Ironically, however, the Mormon church periodically intervenes in initiative and ratification campaigns …

Of Christmas Trees And Corpus Christi: Ceremonial Deism And Change In Meaning Over Time, Jessie Hill

Jessie Hill

Although the Supreme Court turned away an Establishment Clause challenge to the words “under God” in the Pledge of Allegiance in Elk Grove Unified School District v. Newdow, the issues raised by that case are not going away anytime soon. Legal controversies over facially religious government speech have become one of the most regular and prominent features of Establishment Clause jurisprudence – and indeed, a second-round challenge to the Pledge of Allegiance is currently percolating, which is likely to result in resolution by the Supreme Court. That resolution will depend on an understanding of the social meaning of the practice …

Must God Be Dead Or Irrelevant: Drawing A Circle That Lets Me In., Richard M. Esenberg

Richard M Esenberg

Some scholars claim that current Establishment Clause doctrine can increasingly be explained in terms of substantive neutrality, i.e., the idea that government ought to treat religion and irreligion (or comparable secular activities) in the same way. Whether a product of the Court's commitment to the idea or an artifact of the positions of the "swing" justices, this proposition has considerable explanatory power. The Supreme Court has, in recent years, permitted the government to make financial support equally available for religious uses, as long as it is done on a neutral basis and through the private choice of the recipients. It …

Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar

Daniel F. Piar

No abstract provided.

Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks

Frederick Mark Gedicks

Although formal religious tests for federal office are constitutionally prohibited, they have long been a fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President, and the major political parties have only nominated three others for president, all Democrats. The "Judeo-Christian tradition" notwithstanding, no major party has ever nominated a Jew for president-let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever. Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is …

Selman And Kitzmiller And The Imposition Of Darwinian Orthodoxy In The Classroom, Robert J. D'Agostino

Robert J D'Agostino

No abstract provided.

Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar

Daniel F. Piar

No abstract provided.

Dismissed With Prejudice: Why Application Of The Anti-Jury Impeachment Rule To Allegations Of Racial, Religious, Or Other Bias Violates The Right To Present A Defense, Colin Miller

Colin Miller

It is well established that the presence of a biased juror is a structural defect not subject to a harmless error analysis; however, courts repeatedly have precluded criminal defendants from proving such bias by applying Rule of Evidence 606(b) to prevent jurors from impeaching their verdicts through allegations of racial, religious, or other prejudice by jurors. Court also routinely have held that application of the Rule in such cases does not violate the Sixth Amendment right to an impartial jury based upon the Supreme Court’s conclusion in Tanner v. United States that the Rule did not violate the right to …

Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar

Daniel F. Piar

No abstract provided.

Keepers Of The New Covenant: The Puritan Legacy In American Constitutional Law, Daniel F. Piar

Daniel F. Piar

The thesis of the article is that the modern Supreme Court has come to use law just as the American Puritans did: as a tool for regulating and safeguarding the internal, spiritual needs of the populace. Through close readings of landmark civil rights cases, and of primary Puritan texts, I demonstrate that just as the Puritans were concerned with using civil authority to safeguard the soul’s progress to salvation, so does the modern Supreme Court use law to ensure what it sees as the proper conditions for spiritual development. I then remark on several implications of this parallel, including the …

Judicial Martial Law, David Randall Jenkins

David Randall Jenkins

No abstract provided.

The Effect Of "Othering" On Public Policy Debates, Susan J. Stabile

Susan J. Stabile

The premise of this Article is that an underlying attitude of “othering” pervades current discussions about what the law should and should not do to address the conditions and needs of various categories of persons. Although we do not necessarily acknowledge it, the fact that our discussions proceed from a view of the people whose situations or problems being discussed as “other” makes a difference to how we evaluate various public policy initiatives.

This Article is not an effort to engage in a detailed discussion or resolution of any particular question of law and public policy. Instead its focus is …

Fighting With Faith: The Role Of Religion In Dealing With Modern Conflict, Sean P. Mcdonnell

Sean P. McDonnell

Though current modes of cultural and ethnic asymmetrical conflict may seem novel, they universally draw on something far older and far more ingrained in man’s ancient roots: his faith in and relationship with the divine. Perhaps uniquely among cultural factors, religion is a single consistent issue latent in almost all contemporary intractable conflicts. If properly deployed, the symbols, language, and meanings of religious traditions may prove as powerful in resolving conflict as they have been in fueling it. How can those interested in healing these wide cultural schisms employ the power of religion in a restorative resolution process? This essay …

Married Against Their Will? Toward A Pluralist Regulation Of Spousal Relationships, Shahar Lifshitz

Shahar lifshitz

MARRIED AGAINST THEIR WILL? TOWARD A PLURALIST REGULATION OF SPOUSAL RELATIONSHIPS Shahar Lifshitz

This article addresses the regulation of the relationships between unmarried cohabitants. In the article I challenge the conventional divide between conservative and liberal approaches: On one hand, moral condemnation of non-marital conjugal relationships and public policy in favor of marriage lead conservatives to reject the application of marriage law to cohabitating partners. On the other hand, based on principles such as freedom, tolerance and equality, liberals tend to equate the mutual legal commitments of cohabitants with those of married partners. I break with conventional analysis by offering …