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Articles 1 - 30 of 57
Full-Text Articles in Law
The Doctrine Of Religious Freedom, W. Cole Durham Jr.
The Doctrine Of Religious Freedom, W. Cole Durham Jr.
Vol. 2: Service & Integrity
This devotional address was given to the BYU student body on April 3, 2001.
The Relevance Of Religious Freedom, Michael K. Young
The Relevance Of Religious Freedom, Michael K. Young
Vol. 2: Service & Integrity
This Education Week fireside address was given to the J. Reuben Clark Law Society at Brigham Young University on August 21, 2007.
Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe
Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe
Cornell Law Faculty Publications
Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act’s extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should …
Why The Supreme Court Has Fashioned Rules Of Standing Unique To The Establishment Clause, Carl H. Esbeck
Why The Supreme Court Has Fashioned Rules Of Standing Unique To The Establishment Clause, Carl H. Esbeck
Faculty Publications
The U.S. Supreme Court will hear oral argument this fall in Salazar v. Buono, No. 08-472, a matter that involves a Latin cross located in the Mojave National Preserve located in Southeastern California and operated by the National Park Service. First placed there as a memorial to American’s who served in WWI, this Christian symbol is said to violated the Establishment Clause of the First Amendment. Before reaching the merits, however, the Court must first pass on the question of standing to sue. The plaintiff, Frank Buono, is a former employee of the National Park Service and objects to the …
Modified Plans Of Reorganization And The Basic Chapter 13 Bargain, David G. Carlson
Modified Plans Of Reorganization And The Basic Chapter 13 Bargain, David G. Carlson
Articles
A very large number of chapter 13 plans are confirmed each year. Unlike chapter 11 plans (for non-individuals), these plans may be revised after confirmation. The modification provisions of the Bankruptcy Code, however, give very little guidance as to what constitutes a permissible modification. In contrast, confirmation of the original plan is very carefully governed. This article theorizes that modification must honor the basic chapter 13 bargain. According to this bargain, the debtor is entitled to the bankruptcy estate and the creditors are entitled to net surplus income. The article assesses whether the diffuse and disorganized caselaw of modification adheres …
Property And Speech In Summum, Joseph Blocher
Property And Speech In Summum, Joseph Blocher
NULR Online
City of Pleasant Grove v. Summum is, by its own reckoning, a case about government speech under the Free Speech Clause of the First Amendment. Even so, most commentary has justifiably focused on the decision’s implications for another part of the First Amendment: the Establishment Clause. This brief Article addresses yet another feature of Summum—what itdraws from, and says about, the relationship between speech rights and property ownership. This relationship is not only the driving force behind the majority’s opinion, but is also an important tool for understanding government speech in other cases involving government intrusion into speech markets, …
Keeping The Government's Religion Pure: Pleasant Grove City V. Summum, Christopher C. Lund
Keeping The Government's Religion Pure: Pleasant Grove City V. Summum, Christopher C. Lund
NULR Online
In January, the Supreme Court decided Pleasant Grove City v. Summum. Summum, a religious organization, sought the right to put up a permanent monument of its Seven Aphorisms—its version of the Ten Commandments—in a local city park. At the time, the park had about fifteen other monuments, including a traditional Ten Commandments display. But this was a Free Speech case, not an Establishment Clause case. The plaintiffs were not trying to use the First Amendment to have the existing Ten Commandments display removed; they were instead trying to use the First Amendment to force the city into displaying their …
Is Law - Constitutional Crisis And Existential Anxiety, Alice Ristroph
Is Law - Constitutional Crisis And Existential Anxiety, Alice Ristroph
Faculty Scholarship
No abstract provided.
From Clampdown To Limited Empowerment: Hard And Soft Law In The Calibration And Regulation Of Religious Conduct In Singapore, Eugene K. B. Tan
From Clampdown To Limited Empowerment: Hard And Soft Law In The Calibration And Regulation Of Religious Conduct In Singapore, Eugene K. B. Tan
Research Collection Yong Pung How School Of Law
The focus of Singapore's response to terrorism post 9/11 has been to reach out to the “moderate, mainstream” Muslims as a bulwark against societal implosion. This article examines the broad-based endeavor toward “religious moderation.” While coercive draconian legislation remain the mainstay against extremists and radicals, the mobilization of soft law, aspirational norms, and values are consciously woven into the state's endeavors to enhance society's resilience and cohesion. They also seek to regulate religious conduct at a time when the state wishes to entrench secularism as a cornerstone of the governance of a multi-racial, multireligious society. Rights and regulation are not …
Self-Love And Forgiveness: A Holy Alliance?, Patrick Mckinley Brennan
Self-Love And Forgiveness: A Holy Alliance?, Patrick Mckinley Brennan
Working Paper Series
Forgiving is not pardoning, excusing, condoning, forgetting, or reconciling, nor is forgiving just about a change in emotions on the part of a victim. This paper pursues a virtue-theoretic account of the human person in the context of the theology of Thomas Aquinas, arguing that human forgiveness is the form love takes by an offended toward her offender. The paper argues, first, for the priority of the offended person's self-love and, second, for such self-love's extension into love of the offender as another self. The paper explores in depth the challenges of seeing one's enemy as "another self." Forgiving, the …
Fathers, Foreskins, And Family Law, Dena S. Davis
Fathers, Foreskins, And Family Law, Dena S. Davis
Law Faculty Articles and Essays
In the United States, a custodial parent has the right and responsibility to make medical decisions for one's child. But does that right encompass consenting for a surgical procedure for which there is little or no medical justification? What if the noncustodial parent opposed the procedure? And when is a child old enough to make the decision for him- or herself? How should a physician respond when asked to perform a surgical procedure when the decision is enmeshed in family controversy? These and other questions are considered in Boldt, a recent family law case decided by the Supreme Court of …
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Working Paper Series
This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …
Condemning Religion: Rluipa And The Politics Of Eminent Domain, Nelson Tebbe, Christopher Serkin
Condemning Religion: Rluipa And The Politics Of Eminent Domain, Nelson Tebbe, Christopher Serkin
Faculty Scholarship
No abstract provided.
New Adventures Of Old Pauline Law, Tawia Baidoe Ansah
New Adventures Of Old Pauline Law, Tawia Baidoe Ansah
Faculty Publications
This article examines the idea of law within two recent philosophical approaches to a theological text. Giorgio Agamben and Alain Badiou, two postmodern philosophers on the political left, look to the letters of St. Paul for the definition and extraction of the political subject. They look to Paul’s messianism and his conversion to discover, within their own philosophical projects, what is truly political within the Western philosophical tradition, for which Paul’s theology is unconditional. The article focuses on the conception of law that, in turn, derives from these projects. The article suggests that within both, despite the objective rejection of …
Faith And Politics In The Post-Secular Age: The Promise Of President Obama, Francis J. Mootz Iii
Faith And Politics In The Post-Secular Age: The Promise Of President Obama, Francis J. Mootz Iii
McGeorge School of Law Scholarly Articles
If the modern era is properly characterized as the 'age of secularism' - a time when constitutional democracies finally have shed the last vestiges of church authority from the political realm and embrace a rationalist and humanist perspective - then the United States appears to be outside the Western mainstream. In this paper I explore how the relationship between politics and religious faith in the United States might be seen as part of the narrative of secularism that defines most other Western countries, even as the differences in the American experience might suggest an evolution of this narrative. My thesis …
Empowerment Or Estrangement: Liberal Feminism's Visions Of The “Progress” Of Muslim Women, Cyra Akila Choudhury
Empowerment Or Estrangement: Liberal Feminism's Visions Of The “Progress” Of Muslim Women, Cyra Akila Choudhury
Faculty Publications
This paper presents some thoughts on the progress of Muslim women towards gender justice. It argues that Liberal Legal feminism shares a common understanding of history and progress with those Liberal political theories that justified the British Empire. Because of this genealogy, Liberal feminism seeks to reform cultures and societies that do not comport with a particular Liberal teleology that forecloses the expression of alternative ideas of history, progress, and human flourishing. It further argues that Muslim women's organizations that partner with Northern organizations sometimes seek to fulfill Liberal expectations of victimhood at the hands of their culture. The consequence …
Revelation And Idolatry: Holy Law And Holy Terror, Regina Schwartz
Revelation And Idolatry: Holy Law And Holy Terror, Regina Schwartz
Faculty Working Papers
THE Book of Exodus desscribes the identity of justice and the law. Because elsewhere the gap between justice and the law is so wide -- in Christian theology when it sees the Pharisaic law as inhibiting the realization of justice; in philosophy where from Plato on, law is formal while is justice substantive; in political theory, which includes those who endorse "procedural justice" when they abandon substantive justice -- this radical biblical vision, wherein the law is justice is surely unique. This is not an understanding of the law as a series of prescriptions, the "yoke of the law" but …
Islam's Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza
Islam's Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza
Articles & Chapters
Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the FourthAmendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of …
Is Religion The Environment’S Last Best Hope? Targeting Change In Individual Behavior Through Personal Norm Activation, Stephen M. Johnson
Is Religion The Environment’S Last Best Hope? Targeting Change In Individual Behavior Through Personal Norm Activation, Stephen M. Johnson
Articles
This Article explores the important role that religious organizations have played, and can play, in personal norm activation to influence change in individuals’ environmentally destructive actions. Part I of the Article describes the need for regulating or targeting individuals, in addition to industrial sources, in order to address many of the remaining significant environmental problems. Part II examines the advantages and disadvantages of targeting individual actions through command-and-control regulation, economic-based alternatives, and information disclosure programs. Part III outlines the concept of norm activation and details the manner in which information disclosure programs can be used to activate personal norms to …
Religious Freedom, Democracy, And International Human Rights, John Witte Jr., M. Christian Green
Religious Freedom, Democracy, And International Human Rights, John Witte Jr., M. Christian Green
Faculty Articles
Clearly, religion and freedom do not yet coincide in many countries, however rosy their new constitutional claims are as to religious rights and freedoms for all. Apostasy, Blasphemy, Conversion, Defamation, and Evangelization-these are the new alphabet of religious rights violation in a number of regions around the world. Occurring at the intersection of religion and international human rights, these violations are also challenges to the universality of human rights and the democratic institutions that generate and affirm them.
Hein And Goldilocks Principle, Maya Manian
Hein And Goldilocks Principle, Maya Manian
Articles in Law Reviews & Other Academic Journals
Two weeks into his presidency, George W. Bush issued an executive order establishing the White House Office of Faith-Based and Community Initiatives (OFBCI) to encourage religious groups to provide federally funded social services. In particular, the OFBCI and its corresponding centers in various executive agencies sought to help religious organizations obtain federal grant monies by providing technical assistance to help them navigate the often byzantine bureaucracy surrounding federal grant-making. The OFBCI achieved its goal of increasing federal grants to religious organizations, in part by funding workshops and conferences designed to aid religious groups pursuing federal financing. Concerned that the Bush …
Scriptural Interpretation And Constitutional Interpretation: An Introduction, 2009 Mich. St. L. Rev. 273, 276 (2009), Christopher C. Lund
Scriptural Interpretation And Constitutional Interpretation: An Introduction, 2009 Mich. St. L. Rev. 273, 276 (2009), Christopher C. Lund
Law Faculty Research Publications
No abstract provided.
Ceremonial Objects From The Collection Of Rabbi David A. Whiman, Beth Mobley
Ceremonial Objects From The Collection Of Rabbi David A. Whiman, Beth Mobley
Exhibits
No abstract provided.
The Book Of Job And The Role Of Uncertainty In Religion And Law, Steven Goldberg
The Book Of Job And The Role Of Uncertainty In Religion And Law, Steven Goldberg
Georgetown Law Faculty Lectures and Appearances
The Book of Job depicts the radical uncertainty that results when people try to comprehend God. Job has had an extraordinary influence on philosophy and literature, and its message on the limits of human knowledge has even been echoed in the words of great scientists. Surprisingly, however, it has had little influence on the rhetoric or approach of lawyers and judges. The legal profession, which confronts uncertain outcomes daily, has reduced uncertainty to a mundane calculation of odds, while ignoring the more fundamental idea of the unknown because that idea would paralyze legal work.
House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson
House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson
Publications
In an attempt to erase Islamic-fundamentalist sentiments held by detainees apprehended in the course of the "war on terror," the United States government began teaching and preaching a more moderate version of the Qur'an and Islam to detainees in Iraq. One such detention program in Iraq was dubbed the House of Wisdom. But the wisdom of such a practice is highly suspect--both because it likely runs afoul of the Establishment Clause of the First Amendment and because it may be doing more harm than good to the American effort to defuse Islamic-extremism and anti-American sentiment. This Article examines the practice …
Biblical Interpretation, Constitutional Interpretation And Ignoring Text, Henry L. Chambers, Jr.
Biblical Interpretation, Constitutional Interpretation And Ignoring Text, Henry L. Chambers, Jr.
Law Faculty Publications
Much is made of how to interpret the Constitution. The Constitution is foundational and its law is the highest law in the land. Consequently, interpreting the Constitution correctly is important, not only so that the Constitution's words are honored but so that its ideals are honored. Similar desires accompany the interpretation of other important documents. Indeed, how a sacred text like the Bible is or can be interpreted may shed light upon how the Constitution could be or should be interpreted. This brief Essay considers how a particular vision of Christian biblical interpretation can inform constitutional interpretation. This Essay does …
Parental Rights And The State Regulation Of Religious Schools, Matthew J. Steilen
Parental Rights And The State Regulation Of Religious Schools, Matthew J. Steilen
Journal Articles
In Wisconsin v. Yoder, the United States Supreme Court invalidated convictions of several Amish parents for removing their children from school in violation of state mandatory attendance laws. In reaching its decision, the Court argued that protecting the Amish parents’ decisions fit into a longstanding American tradition of giving parents control over the upbringing of their children. Yet the Supreme Court mischaracterized the history of parental rights and state interests in education. Contemporary historical research shows that parents have long ceded a large measure of control to the state in the education of their children. Still, very little has been …
Privatizing And Publicizing Speech, Nelson Tebbe
Privatizing And Publicizing Speech, Nelson Tebbe
Cornell Law Faculty Publications
When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although …
Commerce In Religion, Bernadette Meyler
Commerce In Religion, Bernadette Meyler
Cornell Law Faculty Publications
As this Symposium Article contends, religion increasingly overlaps with the commercial sphere, and courts are obligated to determine whether or not to adopt an entirely hands-off approach simply because the specter of religion lurks on the horizon. Whereas the jurisprudence of the European Court of Human Rights tends to accept its member states' separation of commercial elements out from the protections more generally accorded to religion, the U.S. Supreme Court has treated the two spheres as overlapping. To the extent that each court does consider religious transactions in terms of commercial relations, each also arrives at a very different conception …
Dream Palaces Of Law: Western Constructions Of The Muslim Legal World, Haider Ala Hamoudi
Dream Palaces Of Law: Western Constructions Of The Muslim Legal World, Haider Ala Hamoudi
Articles
Western distortions of the Muslim East nearly always take the same form, irrespective of who in the West is doing the distorting. One common theme can be generally gleaned from any projections of the Muslim East in the West, in any Western country, among nearly every community, including, and perhaps especially, our own academic community. This is the perception of the near ubiquitous role of Islam and, more germane to my remarks, Islamic law, of a historic, medieval kind, in governing the legal order of Muslim states, including Iraq, in a manner that can be entirely distorting. In these brief …