Law Commons^™

Ties That Bind? The Questionable Consent Justification For Hosanna-Tabor, Jessie Hill

NULR Online

No abstract provided.

Religion And Race: The Ministerial Exception Reexamined, Ian Bartrum

NULR Online

No abstract provided.

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

NULR Online

No abstract provided.

Phony Originalism And The Establishment Clause, Andrew M. Koppelman

Faculty Working Papers

The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

Islamic Law And The Making And Remaking Of The Iraqi Legal System, Kristen Stilt

Faculty Working Papers

This article examines the drafting process of the new Iraqi constitution, which took place in 2004 and 2005 as a result of the U.S. invasion of Iraq. It addresses the role of Islamic law in the Iraqi legal system prior to the invasion and considers how a new constitution may deal with the question and analyzes, based on Iraq's history, current situation, and the experience of other similar countries, how Islamic law may be retained or incorporated into the new Iraqi legal system. While the constitutional discussion is important, the Article also shows who debates over Islamic law in Iraq …

How Shall I Praise Thee? Brian Leiter On Respect For Religion, Andrew Koppelman

Faculty Working Papers

In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the "thick" sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In this paper, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter's analysis.

No Respect: Brian Leiter On Religion, Andrew Koppelman

Faculty Working Papers

In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the "thick" sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In this paper, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter's analysis.

Public And Private As Viewed Through The Work Of The Muhtasib, Kristen Stilt, Roy Mottahedeh

Faculty Working Papers

This article examines the distinctions between public and private space in classical Islamic law through the work of the muhtasib, a legal official charged with the inspection of public places and behavior in towns of the premodern Middle East and North Africa (and in some Muslim communities outside of these areas).

Recognizing The Individual: The Muhtasibs Of Early Mamluk Cairo And Fustat, Kristen Stilt

Faculty Working Papers

This Article studies the biographies of several key muhtasibs in Mamluk Cairo and Fustat to understand the types of individuals who held the position and how the individual background, education, status among the populace, relationship to the ruling elite, and the means of obtaining the position of each contributed to how the particular muhtasib functioned in office.

Price Setting And Hoarding In Mamluk Egypt, Kristen Stilt

Faculty Working Papers

This Article studies the legal position of the muhtasib in medieval Cairo, using the biographical information available about the individuals who held the position to understand the actions they took in office. The muhtasib, who was an inspector of public places and markets in particular, was a key legal actor in terms of applying law immediately to a situation he encountered; he was a common face of the law in society. This Article, influenced in method by legal realism, shows that in addition to the law that a particular muhtasib intended to apply to a particular case, biographical information is …

How Is Islam The Solution?: Constitutional Visions Of Contemporary Islamists, Kristen Stilt

Faculty Working Papers

This Article uses documents issued by the Muslim Brotherhood, in particular the lengthy 2007 "Political Party" Platform, and personal interviews with Brotherhood leadership to examine the group's specific goals and beliefs for the place of religion within the structure of the Egyptian legal system. While many important angles need to be explored, I focus on one topic that has drawn the most attention to the Brotherhood, the place of religion in the state, or religion defined and enforced by state institutions. I show that the Brotherhood carefully acknowledges the existing constitutional structure and jurisprudence on the position of Islam in …

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

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 …

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 …

Religious Establishment And Autonomy, Andrew Koppelman

Faculty Working Papers

Kent Greenawalt claims that one rationale for nonestablishment of religion is personal autonomy. If, however, the law is barred from manipulating people in religious directions (and thus violating their autonomy), while it remains free to manipulate them in nonreligious directions (and thus violate their autonomy in exactly the same way), autonomy as such is not what is being protected. The most promising alternative is to understand religion as a distinctive human good that is being protected from government interference.

Corruption Of Religion And The Establishment Clause, Andrew Koppelman

Faculty Working Papers

Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This paper explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion.

If the religion-protective argument for disestablishment is to be useful today, it cannot …