Law Commons^™

Knockin' On Heaven's Door: Rethinking The Role Of Religion In Death Penalty Cases, Gary J. Simson, Stephen P. Garvey

Stephen P. Garvey

Religion has played a prominent role at various points of capital trials. In jury selection, peremptory challenges have been exercised against prospective jurors on the basis of their religion. At the sentencing phase, defendants have offered as mitigating evidence proof of their religiosity, and the prosecution has introduced evidence of the victim's religiosity. In closing argument, quotations from the Bible and other appeals to religion have long been common. During deliberations, jurors have engaged in group prayer and tried to sway one another with quotes from scripture. Such practices have not gone unquestioned. Rather remarkably, however, the questions have almost …

A Primer On Hobby Lobby: For-Pro T Corporate Entities’ Challenge To The Hhs Mandate, Free Exercise Rights, Rf ’S Scope, And The Nondelegation Doctrine, Danielle Weatherby, Terri R. Day, Leticia M. Diaz

Danielle Weatherby

America's Written Constitution: Remembering The Judicial Duty To Say What The Law Is, Joshua J. Schroeder

Joshua J Schroeder

In 2013 the Supreme Court embraced a policy of feigned positivism. In general positivism says there are no future rewards and punishments and thus there is no Natural Law that holds sway over rulers whether it is established by a creator God or not. Thus adopting positivism leaves the Court with an existential problem because the Court’s equitable power flows directly from Natural Law and Nature’s God and is much older than the new country known as the United States. But even in the scope of U.S. history positivism lost significant ground in its struggle with equitable power and the …

Prying, Spying, And Lying: Intrusive Newsgathering And What The Law Should Do About It, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

The media's use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaninful privacy protection. After surveying the economic, philosophical, and practical obstacles to reform, this Article proposes to rejuvenate the tort of intrusion to tip the balance between privacy and the press back in privacy's direction. Working within the framework …

Incendiary Speech And Social Media, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

Brandenburg And The United States' War On Incitement Abroad: Defending A Double Standard, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

While it is perfectly legitimate for the United States to attempt to persuade foreign citizens and media not to engage in advocacy of violent acts, the administration's rhetoric suggests that the United States expects foreign governments to take action against speech that would be protected by the First Amendment in the United States. What explains this apparent hypocrisy? Is this simply another example of the United States touting democracy at home while supporting despotism abroad? Or is the Brandenburg incitement standard so socially and culturally contingent that it is not appropriate for export, at least to the Arab Middle East? …

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Eric J. Segall

No abstract provided.

Introducing A Takedown For Trade Secrets On The Internet, Elizabeth Rowe

Elizabeth A Rowe

This Article explores, for the first time, an existing void in trade-secret law. When a trade-secret owner discovers that its trade secrets have been posted on the Internet, there is currently no legislative mechanism by which the owner can request that the information be taken down. The only remedy to effectuate removal of the material is to obtain a court order, usually either a temporary restraining order or a preliminary injunction. When a trade secret appears on the Internet, the owner often loses the ability to continue to claim it as a trade secret and to prevent others from using …

Death Or Transformation? Educational Autonomy In The Roberts Court, Elizabeth Dale

Elizabeth Dale

In the aftermath of the Supreme Court's decisions in Grutter and Gratz a number of commentators argued that the Court had begun to embrace a new constitutional doctrine that required deference to the decisions of some institutions. Most notably they asserted that the Court would defer within the field of education. But even as they suggested that the Court was more willing to explore the doctrine, those two opinions left several large questions unanswered: Did the Court's embrace of institutional autonomy extend beyond higher education, into the K-12 realm? If so, what were its bounds? Was the doctrine only relevant …

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

Elizabeth Dale

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …

Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to …

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to …

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Richard W Garnett

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett

Richard W Garnett

This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is an …

Religious Freedom & Closely Held Corporations: The Hobby Lobby Case & Its Ethical Implications, Corey A. Ciocchetti

Corey A Ciocchetti

Hobby Lobby and its quest for religious freedom captured the attention of a nation for a few moments in late June 2014. The country homed in on the Supreme Court as the justices weighed the rights of an incorporated, profit-making entity run by devout individuals that objected to particular entitlements granted to women under the Affordable Care Act. The case raised important legal issues such as whether the law allows for-profit corporations to exercise religion (yes!) and whether protection for religious freedom trumps the rights of third parties to cost free preventive care (sort of!). The Supreme Court’s decision also …

U.S. Supreme Court Review 2013-2014 Term, Miller W. Shealy Jr.

Miller W. Shealy Jr.

No abstract provided.

The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello

Adam Lamparello

Technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world. The original purposes of the First Amendment, which from time immemorial have protected civil liberties and preserved the free, open, and robust exchange of information, support net neutrality. After all, laws or practices that violate cherished freedoms in the physical world also violate those freedoms in the virtual world. The battle over net neutrality is “is absolutely the First Amendment issue of our time,” just as warrantless searches of cell phones were …

"God Hates Fags" Isn't The Same As "Fuck The Draft": Introducing The Non-Sexual Obscenity Doctrine, Adam Lamparello

Adam Lamparello

No abstract provided.

From 'Banned In Boston' To Ethnic Studies In Arizona: Intellectual Freedom In America Today, Laura Quilter

Laura Quilter

This program will explore the meaning of Banned Books Week and what censorship means, as well as looking at what gets "banned" in America these days. Laura Quilter, a local librarian and information policy attorney, will lead a lively discussion of the law and politics of "banning books" -- from Comstockery through modern-day removal of identity studies curricula in Arizona and LGBT-themed children's books in public and school libraries.

The Free Exercise Clause: Fealty To God Or Caesar, John O. Hayward

John O. Hayward

This essay furnishes a modest definition of “religion,” briefly reviews the historical background of the Free Exercise Clause, examines several significant U.S. Supreme Court decisions, including the controversial Hobby Lobby case, that have defined, expanded and limited this clause, and finally, argues that the Court in interpreting the Free Exercise clause should be mindful of the writings of seventeenth century political philosopher John Locke (1632-1704), who maintained that the state should allow all religions to pursue their own goals as long as they don’t produce civil harms. Lastly, the article concludes with a caveat that a country whose citizens have …

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED 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 …

Corporations And Religious Freedom: Hobby Lobby Stores - A Missed Opportunity To Reconcile A Flawed Law With A Flawed Health Care System, Matthew A. Melone

Matthew A. Melone

On June 30, 2014, the Supreme Court held, in Burwell v. Hobby Lobby Stores, Inc., that the requirement imposed on employer group health insurance plans to provide coverage for certain contraceptives unduly burdened the free exercise rights of three closely-held corporations in violation of the Religious Freedom Restoration Act of 1993 ( RFRA ). The contraception mandate was imposed by regulations implementing the Patient Protection and Affordable Care Act, itself a very controversial piece of legislation a part of which was upheld recently by the Court in a perhaps a case more controversial than Hobby Lobby Stores. RFRA was enacted …

The Replicator And The First Amendment, Kyle Langvardt

Kyle Langvardt

As 3D printing technology improves, the theoretical endpoint comes into view: a machine that, like the “replicators” of Star Trek, can produce anything the user asks for out of thin air from a digital blueprint. Real-life technology may never reach that endpoint, but our progress toward it has accelerated sharply over the past few years—sharply enough, indeed, for legal scholars to weigh in on the phenomenon’s disruptive potential in areas ranging from intellectual property to gun rights. This paper is concerned with the First Amendment status of the digital blueprints. As of August 2014, it is the first law review …

Narrow Tailoring, Compelling Interests, And Free Exercise: On Aca, Rfra And Predictability, Mark Strasser

Mark Strasser

The holding in Burwell v. Hobby Lobby Stores, Incorporated was narrow in scope—closely held, for-profit corporations must be afforded an exemption from providing insurance coverage for a few types of contraception if the corporation has religious objections to providing that coverage. In addition, the exemption requirement was based on a construction of federal statute rather than on the Constitution’s free exercise guarantees. Both the narrowness of the holding and the Court’s express disavowal that it was offering a constitutional analysis might make the opinion appear relatively inconsequential. However, because the opinion changes the focus and standards of federal law and …

What Impact The Supreme Court’S Recent Hobby Lobby Decision Might Have For Lgbt Civil Rights?, Vincent Samar

Vincent J. Samar

Abstract

What Impact the Supreme Court’s Recent Hobby Lobby

Decision Might Have for LGBT Civil Rights?

Vincent J. Samar

The U.S. Supreme Court’s recent decision in the Hobby Lobby case has created shockwaves of concern among civil rights groups questioning whether for-profit corporations can assert a religious exemption from civil rights legislation under a 1993 federal law, the Religious Freedom Restoration Act. The matter is of particular concern in the LGBT community given the possible impact it could have on services traditionally offered to those getting married as more and more states legalize same-sex marriage. Though the Court’s conservative majority …

Trademark Law And The Prickly Ambivalence Of Post-Parodies, Charles E. Colman

Charles E. Colman

This Essay examines what I call "post-parodies" in apparel. This emerging genre of do-it-yourself fashion is characterized by the appropriation and modification of third-party trademarks — not for the sake of dismissively mocking or zealously glorifying luxury fashion, but rather to engage in more complex forms of expression. I examine the cultural circumstances and psychological factors giving rise to post-parodic fashion, and conclude that the sensibility causing its proliferation is one grounded in ambivalence. Unfortunately, current doctrine governing trademark parodies cannot begin to make sense of post-parodic goods; among other shortcomings, that doctrine suffers from crude analytical tools and a …

"Step Into The Game": Assessing The Interactive Nature Of Virtual Reality Video Games Through The Context Of "Terroristic Speech", Robert Hupf Jr

Robert Hupf Jr

This article will begin the discussion on video gaming’s next interactive jump – total VR immersion – and examine whether the interactivity of VR changes the ordinary First Amendment analysis . . . . Yet, even with the “terroristic speech” component, involving everything from instructions on bomb-making to anti-American “terrorist” recruitment messaging, the Court should affirm the speech-protective logic of Justice Learned Hand and Justice Brandeis and hold that the First Amendment protects the freedom of video game developers in making VR video games with problematic content. The video game medium and its depictions have already been recognized as “speech” …

“Can I Profit From My Own Name And Likeness As A College Athlete?” The Predictive Legal Analytics Of A College Player’S Publicity Rights Vs. First Amendment Rights Of Others, Roger M. Groves

Roger M. Groves

Two federal court decisions during 2013 have changed the game for college students versus the schools, the NCAA and video game makers. This article explores whether for the first time in history these athletes can profit from their own name and likeness and prevent others from doing so. But those cases still leave many untested applications to new facts – facts that the courts have not faced. Particularly intriguing is how 21st Century technology will apply to this area in future litigation. No publicity rights case or article to date has explored the application of predictive analytics, computer programs, algorithms, …

Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …