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Articles 1 - 8 of 8
Full-Text Articles in Law
A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone
A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone
Law Faculty Publications
In Kennedy v. Bremerton School District, the Roberts Court continued its move to carve out larger spaces for religious practice and expression in public spheres. But in so doing it left lower courts and school districts with many more questions than answers concerning what the Establishment Clause means and what it requires of them.
Norms Of Public Argumentation And The Ideals Of Correctness And Participation, Frank Zenker, Jan Albert Van Laar, Bianca Cepollaro, Anca Gâță, Martin Hinton, Colin Guthrie King, Brian N. Larson, Marcin Lewinski, Christoph Lumer, Steve Oswald, Maciej Pichlak, Blake D. Scott, Mariusz Urbanski, Jean H.M. Wagemans
Norms Of Public Argumentation And The Ideals Of Correctness And Participation, Frank Zenker, Jan Albert Van Laar, Bianca Cepollaro, Anca Gâță, Martin Hinton, Colin Guthrie King, Brian N. Larson, Marcin Lewinski, Christoph Lumer, Steve Oswald, Maciej Pichlak, Blake D. Scott, Mariusz Urbanski, Jean H.M. Wagemans
Faculty Scholarship
Argumentation as the public exchange of reasons is widely thought to enhance deliberative interactions that generate and justify reasonable public policies. Adopting an argumentation-theoretic perspective, we survey the norms that should govern public argumentation and address some of the complexities that scholarly treatments have identified. Our focus is on norms associated with the ideals of correctness and participation as sources of a politically legitimate deliberative outcome. In principle, both ideals are mutually coherent. If the information needed for a correct deliberative outcome is distributed among agents, then maximising participation increases information diversity. But both ideals can also be in tension. …
Private Law And Public Discourse, Aditi Bagchi
Private Law And Public Discourse, Aditi Bagchi
Faculty Scholarship
Democracies need institutions that help to build public consensus on fundamental principles of justice. However, the major public institutions associated with this task – electoral institutions, the press, education, and civil society—each face a trade-off between a high degree of governmental control over their agendas, on the one hand, and self-segregation by participants, on the other. This Article identifies private law—the litigation of private claims and their judicial resolution—as an unlikely but ultimately critical site for building consensus on political principles. After laying out what public discourse requires (and what it does not), the Article argues that private law is …
Infrastructuring The Digital Public Sphere, Julie E. Cohen
Infrastructuring The Digital Public Sphere, Julie E. Cohen
Georgetown Law Faculty Publications and Other Works
The idea of a "public sphere"--a shared, ideologically neutral domain where ideas and arguments may be shared, encountered, and contested--serves as a powerful imaginary in legal and policy discourse, informing both assumptions about how public communication works and ideals to which inevitably imperfect realities are compared. In debates about feasible and legally permissible content governance mechanisms for digital platforms, the public sphere ideal has counseled attention to questions of ownership and control rather than to other, arguably more pressing questions about systemic configuration. This essay interrogates such debates through the lens of infrastructure, with particular reference to the ways that …
"We The People," Constitutional Accountability, And Outsourcing Government, Kimberly L. Wehle
"We The People," Constitutional Accountability, And Outsourcing Government, Kimberly L. Wehle
All Faculty Scholarship
The ubiquitous outsourcing of federal functions to private contractors, although benign in the main, raises the most fundamental of constitutional questions: What institutions and actors comprise the "federal government" itself? From Abu Ghraib to Blackwater, a string of scandals has heightened public awareness that highly sensitive federal powers and responsibilities are routinely entrusted to government contractors. At the same time, the American populace seems vaguely aware that, when it comes to ensuring accountability for errors and abuses of power, contractors occupy a special space. The fact is that myriad structural and procedural means for holding traditionally government actors accountable do …
Seeing Through The Secular Illusion, I Benson
Seeing Through The Secular Illusion, I Benson
Law Papers and Journal Articles
It is often said that we live in a ‘secular’ age and that the principles of ‘secularism’ lead to a ‘neutral’ public sphere. The central terms ‘secular’ and ‘secularism’ however, though they are often used are rarely examined. Related terms, relevant to their meaning, such as ‘faith’ and ‘belief’ are also seldom defined or compared alongside each other to evaluate how well they comply with principles of justice. In this paper, a development of others on similar themes, Professor Benson examines various definitions alongside contemporary topics and legal decisions to argue that an open public sphere requires re-thinking how many …
The Unexamined Faiths And The Public Place Of Religion: Emerging Insights From The Law, I Benson
The Unexamined Faiths And The Public Place Of Religion: Emerging Insights From The Law, I Benson
Law Papers and Journal Articles
The article examines certain key terms, such as “beliefs” and “faith” and how these are understood in relation to the public sphere. It examines some writings of recent popularist authors such as Richard Dawkins and Christopher Hitchens, and is critical of the authors’ claims that they do not have faith or beliefs. Drawing on legal decisions in Canada and South Africa the article suggests that this sort of terminological looseness has legal and political implications when it comes to whether or not beliefs of all sorts (religious and non-religious) are treated fairly in the public sphere. Arguing for a more …
Who Says "I Do"? Reviewing Judith Butler & Gayatri Chakravorty Spivak, Who Sings The Nation-State? Language, Politics, Belonging (2007), Noa Ben-Asher
Who Says "I Do"? Reviewing Judith Butler & Gayatri Chakravorty Spivak, Who Sings The Nation-State? Language, Politics, Belonging (2007), Noa Ben-Asher
Faculty Publications
This Book Review offers an analogy between two forms of resistance to legal discrimination by marginalized minorities: singing the national anthem in Spanish on the streets of Los Angeles in the spring of 2006 by undocumented immigrants, and possible future public marriage ceremonies by LGBT people and other marriage outlaws. Based on the conceptual grounds laid by Judith Butler and Gayatri Spivak, and earlier by Hannah Arendt, the Review uses an analogy to the public singing of the anthem in Spanish in order to argue that the performance of public marriage ceremonies by LGBT people and other marriage outlaws may …