Law Commons^™

Cheer On Separation Of School, Religious Messages, Alan E. Garfield

Alan E Garfield

No abstract provided.

Beyond Incentives: Making Corporate Whistleblowing Moral In The New Era Of Dodd-Frank Act "Bounty Hunting", Matt A. Vega

Matt A Vega

In this article, I examine the SEC's new whistleblower bounty program authorized by the Dodd-Frank Act. Under the program, which went into effect last year, the SEC is required to pay a bounty to whistleblowers who voluntarily provide the agency with "original information" about a potential securities law violation that leads to a successful SEC or "related" enforcement action and that results in monetary sanctions of sufficient size. When the average SEC settlement is over $18.3 million, whistleblowers can expect the average bounty to be well in the range of $2-5 million.

My contention is that this new program is …

Sacred Cows, Holy Wars, Kenneth Lasson

Kenneth Lasson

ED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

To Drink The Cup Of Fury: Funeral Picketing, Public Discourse And The First Amendment, Steven J. Heyman

Steven J. Heyman

In Snyder v. Phelps, the Supreme Court held that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a position that has become increasingly prevalent in First Amendment jurisprudence – the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. In this Article, I argue that this view is deeply problematic for two reasons: it unduly sacrifices the value of individual personality and it tends to undermine the sphere of public discourse itself by negating the practical and …

The Embodiment Of Tolerance In Discourses And Practices Addressing Cultural Diversity In Schools, The Case Of Cyprus, Nicos Trimikliniotis, Corina Demetriou, Elena Papamichael

Nicos Trimikliniotis

The report examines the processes, methods and Practices of the Cypriot educational system as the

embodiment of tolerance in discourses and practices addressing cultural diversity in schools. These are

mediated by the perceptions of policy makers, the convictions of stakeholders involved in the processes and abilities of and tools made available to educationalists. In examining the nature of the educational system and particularly the way in which the system treats its minoritised individuals and groups, the philosophy which emerges is that of viewing diversity as a disadvantage and a deficiency that needs to be ‘treated’, against a backdrop of essentialising …

Why Are We Teaching Kids To Hate?: Ending The Practice Of Gay-To-Straight Conversion Treatments, Afton R. Cavanaugh

Afton R. Cavanaugh

The governor of California just signed into law SB 1172, creating a cause of action against mental health professionals that attempt to convert children under the age of eighteen from gay to straight. Conversion therapy, as this practice is called, has been around for a long time, but recently our nation’s youth has come into the crosshairs of powerful anti-gay activists. Conversion therapy imbeds within the child’s psyche an internalized form of homophobia that causes an extreme risk of psychological distress given the developing and often fragile mental state of children and teenagers. These methods have no proven success rate, …

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions. The …

Religious Law Schools And Democratic Society, Jennifer Wright

Jennifer Wright

Many believe that, in a democratic society, the law must be approached as a purely secular, neutral system to which all members of society can assent. Discussion of religious foundations of law is condemned as inherently divisive and destructive of democratic process. Many in the legal academy believe that law school education should not involve teaching students to examine the moral foundations of the law and the legal system, and certainly should not invite and challenge law students to examine their professional role in the justice system in light of their own moral commitments and religious faiths. Law students both …

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions. The …

“On The Streets Of Doomed America” : Snyder V. Phelps Through A Millian Lens, David G. Lake

David G Lake

Although many Americans may be opposed to the Supreme Court’s ruling in Snyder v. Phelps, the Court protected traditional application of the freedom of speech by finding in favor of the Westboro Baptist Church. Specifically, the Supreme Court’s analysis of public vs. private speech issues in Snyder v. Phelps conforms to John Stuart Mill’s analysis of speech regulation in “On Liberty,” indicating that current freedom of speech jurisprudence continues to reflect Mill’s analysis and traditional ideas of this essential freedom.

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions. The …

“An Existential Moment Of Moral Perception”: Declarations Of Life And The Capital Jury Re-Imagined, Rebecca T. Engel

Rebecca T Engel

In many ways, death penalty jurisprudence, as well as its social status, have evolved at a rapid rate recently in the United States. This has occurred as the Supreme Court has twice declared capital punishment to be specifically unconstitutional in the last decade, in Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005), and as five states within four years have repealed it from within their criminal justice systems. (New York, New Jersey, Illinois, New Mexico, and Connecticut.) However, in other ways, the system has continued to lag, hardly moving from its difficult reinstatement …

Prophetic Speech, Jeremy G. Mallory

Jeremy G Mallory

Snyder v. Phelps presented the Supreme Court with a shocking set of facts leading to a result that surprised some and confused many. On a more unsettling note, it showed that existing First Amendment doctrine has difficulty addressing prophetic speakers as they are. Prophetic rhetoric is a unique speech category that warrants nuanced consideration due to its sui generis nature. Seven characteristics of prophetic speech undermine assumptions usually taken to hold true in the Court’s free speech jurisprudence. The law as it currently exists can only address prophetic speech as some variant of a known problem, but it is not …

Thomas Jefferson’S Establishment Clause Federalism, David E. Steinberg

David E. Steinberg

Thomas Jefferson’s Establishment Clause Federalism by David E. Steinberg

Abstract

According to mainstream legal analysis, Thomas Jefferson read the Establishment Clause as mandating a wall of separation between church and state. The Supreme Court has used this purported Jeffersonian interpretation as a basis for federal intervention into state religious regulation.

This view of Jefferson as an Establishment Clause separationist is not supported by the historical record. A belief in state's rights and limited federal government were Jefferson's most important tenets. Jefferson endorsed a Bill of Rights, which Jefferson and the anti-federalists viewed as a means of constraining federal power. After …

Christianity In China: Maintaining Social Order Trumps Religious Freedom, Tina M. Trunzo-Lute

Tina M Trunzo-Lute

China is a powerful country with a population of 1.3 billion and the world’s second largest economy. While China excels in many areas, it lacks in providing religious freedom to its citizens. China has a few safeguards in place for religious believers, including the ratification of the ICESCR and provisions in its constitution. However, the inconsistent application of the safeguards and the government’s ultimate goals of furthering socialism and maintaining social order inhibit Christians in China from having the ability to freely and openly practice their religion without fear of persecution. This fear has thrust millions of Christians into illegal …

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

Samuel J. Levine

This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes …

Death And Rehabilitation, Meghan J. Ryan

Meghan J. Ryan

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not—that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death …

Substantive Rights In A Constitutional Technocracy, Abigail Moncrieff

Abigail R. Moncrieff

There are two deep puzzles in American constitutional law, particularly related to individual substantive rights, that have persisted across generations: First, why do courts apply a double standard of judicial review, giving strict scrutiny to noneconomic liberties but mere rational basis review to economic ones? Second, why does American constitutional law take the common law baseline as the free and natural state that needs to be protected? This Article proposes a technocratic vision of substantive rights to explain and justify both of these puzzles. The central idea is that modern substantive rights—the rights to speech, religion, association, reproduction, and parenting—protect …

Stewardship And Dominium: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung

martin hirschprung

The law is ambiguous regarding the level and extent of possession necessary to effect ownership. It can be argued that one’s conception of the nature of ownership influences this standard of possession. I further argue that the application of the concept of stewardship to questions of possession will aid in resolving the disputes between museums and indigenous groups regarding cultural artifacts. In order to demonstrate the relationship between one’s conception of ownership and its attendant standard of possession, it is useful to contrast different legal definitions of ownership, particularly the Roman concept of dominium, with a religious model of stewardship …

Christianity In China: Maintaining Social Order Trumps Religious Freedom, Tina Marie Trunzo-Lute

Tina M Trunzo-Lute

China is a powerful country with a population of 1.3 billion and the world’s second largest economy. While China excels in many areas, it lacks in providing religious freedom to its citizens. China has a few safeguards in place for religious believers, including the ratification of the ICESCR and provisions in its constitution. However, the inconsistent application of the safeguards and the government’s ultimate goals of furthering socialism and maintaining social order inhibit Christians in China from having the ability to freely and openly practice their religion without fear of persecution. This fear has thrust millions of Christians into illegal …

The Affordable Care Act And Religious Freedom: The Next Battleground, Terri R. Day

Terri R. Day

This article presents a comprehensive analysis of the Health and Human Services (HHS) Mandate, which is the controversial required insurance coverage for preventative and wellness services, which include all FDA approved contraceptives, sterilizations, and related patient education and counseling. Failure to provide this coverage will result in an employer penalty. Non-exempt religious employers/insurers contend that this Mandate requires them to violate their freedom of conscience or suffer a penalty. The article discusses the religious reaction to the Mandate and provides a thorough legal analysis of the constitutional issues. Based on the recent health care decision and the likelihood that the …

Would Jesus Kill Hitler? Bonhoeffer, Church, And State, Kenneth K. Ching

Kenneth K Ching

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who tried to “live the life of Jesus” while conspiring to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) theory, running through St. Augustine, William of Ockham, Martin Luther, John Calvin and many others. Some argue that Bonhoeffer rejected NL2K thought. This article’s …

Alleviating The Tension Between Species Preservation And Religious Freedom, Kathryn E. Kovacs

Kathryn E. Kovacs

The Bald and Golden Eagle Protection Act prohibits the taking or possession of eagles and eagle parts. Recognizing the centrality of eagles in many Native American religions, Congress carved out an exception to that prohibition for “the religious purposes of Indian tribes.” The problems with the administration of that exception are reaching crisis proportions. At the Fish and Wildlife Service’s National Eagle Repository, which collects dead eagles from around the country and distributes them to members of federally recognized tribes, more than 6,000 tribal members are on a waiting list for eagles. That list grows each year. The wait for …

Dreyfus, Laicite' And The Burqa, Catherine M.A. Mc Cauliff

Catherine M.A. Mc Cauliff

This Article explores the roots of the laws in France prohibiting Muslim school girls from wearing head scarves and prohibiting Muslim women from wearing religious dress in public. The Article suggests that religious pluralism rather than discrimination against free expression of religion would be a strong constitutional approach to the clash of French and Islamic cultures. Pluralism is the paradigm of the American Constitution in its approach to religious freedom, recognizing through the first amendment a strong right to conscience and religious expression, especially for minority viewpoints. Europe's tradition is not so accommodating to minority religious positions, favoring either a …

Religion / State: Where The Separation Lies, Vincent Samar

Vincent J. Samar

The article traces the history of the establishment clause including various court tests that have been used to interpret it, discusses various contemporary justifications for the clause, and culls from those justifications why the “accommodationist” approach sometimes used by the Court must be rejected.

I then introduce the ethical Doctrine of Double Effect to reconsider other tests the Court has applied (total separation, endorsement, neutrality and coercion), ultimately to justify a new neutrality test that provides a clearer understanding of the principles behind non-establishment. I show how the new neutrality test could be used in resolving future cases, for example, …

Leaving The Dale To Be More Fair: On Cls And First Amendment Jurisprudence, Mark Strasser

Mark Strasser

In Christian Legal Society of the University of California, Hastings College of Law v. Martinez, the Supreme Court upheld the Hastings College of Law’s requirement that all recognized student groups have an open membership policy. The decision has been criticized for a variety of reasons, e.g., that the Court conflated the First Amendment tests for speech and association. What has not been adequately explored is the degree to which the Court has modified limited purpose public forum analysis in the university context over the past few decades, resulting in a jurisprudence that is virtually unrecognizable in light of the more …

Would Jesus Kill Hitler? Bonhoeffer, Church, And State, Kenneth K. Ching

Kenneth K Ching

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who tried to “live the life of Jesus” while conspiring to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) theory, running through St. Augustine, William of Ockham, Martin Luther, John Calvin and many others. Some argue that Bonhoeffer rejected NL2K thought. This article’s …

Taking Religion Out Of Civil Divorce, Julia Halloran Mclaughlin

Julia Halloran McLaughlin

Would Jesus Kill Hitler? Bonhoeffer, Church, And State, Kenneth K. Ching

Kenneth K Ching

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who tried to “live the life of Jesus” while conspiring to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) theory, running through St. Augustine, William of Ockham, Martin Luther, John Calvin and many others. Some argue that Bonhoeffer rejected NL2K thought. This article’s …

News Value, Islamophobia, Or The First Amendment, Why And How The Philadelphia Inquirer Published The Danish Cartoons, Robert Kahn

Robert Kahn

The typical framing of the United States in the Danish cartoon controversy is driven by the refusal of most papers to republish the cartoons. On this view, American journalists, unlike their European counterparts, focused narrowly on the cartoons' "news value" which--even at the papers that published the cartoons--ruled out the anti-Muslim stereotypes that accompanied the running of the cartoons in Denmark and Europe.

This paper puts this frame to the test by looking at the debate that unfolded after the Philadelphia Inquirer ran the turban cartoon. While editor Amanda Bennett defended her decision as "what newspapers do," a detailed review …