Law Commons^™

Homeschooling In Germany And The United States, Aaron Martin

Aaron Martin

In March 2009, the Georgia House of Representatives passed House Resolution 850, urging the German Federal Government to legalize homeschooling. The resolution was one illustration of how advocacy groups throughout the United States have put pressure on Germany to change its draconian laws regarding homeschooling, laws that were enacted in 1938 during the Nazi regime. But while legislators are calling for Germany to change its laws, battles rage within the United States over the same issues.

This Note evaluates the state of homeschooling in the United States and Germany, both by considering the historical development in each country and through …

Snyder V. Phelps, Sarah E. Merkle

South Carolina Law Review

No abstract provided.

Gender Budget Analysis In Morocco: Achieving Education Parity For Women And Girls, Christie J. Edwards

Christie J. Edwards Esq.

The Kingdom of Morocco has a long history of stability and democracy in the North African region, in large part due to the government’s commitment to improving the lives and status of women and girls. In the past few years, Morocco has set ambitious goals for increased access for women and girls to education as key strategies for the country’s economic development. However, although the government has committed to these gender-specific policies, implementation of education and literacy programs has been sporadic and inconsistent due to the enormity of the problem of female illiteracy and the complexity of the solutions proposed …

Compelling The Courts To Question Gonzales V. O Centro: A Public Harms Approach To Free Exercise Analysis, Ari B. Fontecchio

Ari B Fontecchio

At its core, this article uses an original, empirical case study to argue that the Supreme Court's 2006 decision in Gonzales v. O Centro has elevated the level of scrutiny with which courts evaluate the government's compelling interest, expanding the safe harbor for harmful, religious activity. In O Centro, the Supreme Court rejected the government's compelling interest in regulating religious use of the Schedule I hallucinogenic substance hoasca. The case survey at the core of this article demonstrates that since this decision, lower courts have required the government to justify its regulation of potentially harmful activities with an almost unrealistically …

Defining Death: Why All Fifty States Should Adopt The Uniform Definition Of Death Act With A Religious Exception, Rachel Delaney

Rachel Delaney

This article addresses the tension between the secular, American definition of death and the Jewish law definition of death. While the definition of death has been debated separately in both Jewish and American legal scholarship, the secular and Jewish law definitions of death have not been thoroughly analyzed in relation to one another. The secular definition of death—irreversible cessation of all functions of the entire brain—conflicts with the Jewish law definition of death—irreversible cessation of respiration. The conflict presents a First Amendment Free Exercise Clause challenge because state laws with strict secular definitions of death preclude Orthodox Jews from practicing …

Crumbs From The Table: The Syrophoenician Woman And International Law, Mark Chinen

Mark A. Chinen

In this Article I consider a story from the New Testament for what it might say to international law. A woman of Syrophoenician origin, whose daughter is possessed by an evil spirit, asks Jesus for help. Jesus protests, “First let the children eat all they want, for it is not right to take the children’s bread and toss it to their dogs.” The woman replies, “Yes, Lord, but even the dogs under the table eat the children’s crumbs.” Jesus is impressed by this reply and tells the woman her daughter is well. The way in which the story unfolds is …

Teaching Values, Teaching Stereotypes: Sex Ed And Indoctrination In Public Schools, Jennifer S. Hendricks

Jennifer S. Hendricks

Many sex education curricula currently used in public schools indoctrinate students in gender stereotypes. As expressed in the title of one article: “If You Don’t Aim to Please, Don’t Dress to Tease,” and Other Public School Sex Education Lessons Subsidized by You, the Federal Taxpayer (Jennifer L. Greenblatt, 14 TEX. J. ON C.L. & C.R. 1 (2008)). Other lessons pertain not only to responsibility for sexual activity but to lifelong approaches to family life and individual achievement. One lesson, for example, instructs students that, in marriage, men need sex from their wives and women need financial support from their husbands. …

The Friendship Of Pope Paul Vi And Jacques Maritain And The Declaration On Religious Freedom, Catherine M.A. Mc Cauliff

Catherine M.A. Mc Cauliff

This short article entitled, The Friendship of Pope Paul VI and Jacques Maritain and The Declaration on Religious Freedom, is one of a series on the mid-20th century philosopher Jacques Maritain who inspired, in part, two of the most important international political documents of the twentieth century. This article concentrates on some of the circumstances that made possible the Declaration on Religious Freedom at the Second Vatican Council in Dec. 1965. (Prior articles have dealt with Jacques Maritain's role in the Universal Declaration of Human Rights, 54 VILLANOVA L. REV. and his position on economic justice, 62 RUTGERS L. REV. …

Exposing The Underground Establishment Clause In The Supreme Court’S Abortion Cases, Justin S. Murray

Justin S Murray

In Roe v. Wade, the Supreme Court held that women have a right to abortion under the Due Process Clause of the Fourteenth Amendment. The Court reasoned toward this conclusion by importing concepts and concerns that are ordinarily associated with the Establishment Clause. This Article is the first attempt to systematically describe, and critically evaluate, the Court’s use of Establishment-Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to see how the Court wove Establishment-Clause themes into the structure of its Due-Process analysis. The Due Process Clause allows the government to restrict fundamental constitutional …

Exposing The Underground Establishment Clause In The Supreme Court’S Abortion Cases, Justin S. Murray

Justin S Murray

In Roe v. Wade, the Supreme Court held that women have a right to abortion under the Due Process Clause of the Fourteenth Amendment. The Court reasoned toward this conclusion by importing concepts and concerns that are ordinarily associated with the Establishment Clause. This Article is the first attempt to systematically describe, and critically evaluate, the Court’s use of Establishment-Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to see how the Court wove Establishment-Clause themes into the structure of its Due-Process analysis. The Due Process Clause allows the government to restrict fundamental constitutional …

The Future Of God—And Secularism, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.”

The Future Of God—And Secularism, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Averting The Captain Vere “Veer”: Billy Budd As Melville’S Republican Response To Plato, Robert E. Atkinson

Robert E. Atkinson Jr.

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, if …

John Yoo And Jay Bybee Dodge Disciplinary Action But Recall Nuremberg, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

On Same-Sex Marriage And Matters Of Conscience, Mark Strasser

Mark Strasser

In our increasingly diverse society, it is ever-more important to teach tolerance of and respect for those having differing sexual orientations and religious beliefs. It thus might seem an ideal solution to include conscience clauses in legislation affording same-sex couples the right to marry, whereby individuals with religious qualms about being in any way associated with such marriages may be legally excused from doing so. Yet, by creating one exception specifically for same-sex marriages rather than a more generalized exception for those with religious qualms about facilitating or being associated with marriages contrary to belief, the state may be undermining …

An Inquiry Into The Possibility Of An Ethical Politics, Louis E. Wolcher

Louis E Wolcher

Politics is about struggle against others, and it results in the use of law (and hence the threat of coercion) as its primary means for accomplishing its ends. Ethics is about care for others beyond all calculations of individual or collective self-interest. Can politics and ethics be reconciled? In particular, is an ethical politics possible for the twenty-first century? This essay traces the history of grounds and grounding in Western thought with respect to the problem of providing a foundation for any imaginable regime of "ethical" politics in something that would be more solid than mere individual preferences. The investigation …

Government Identity Speech And Religion: The Endorsement Test After Summum, Mary Jean Dolan

Mary Jean Dolan

This Article offers in-depth analysis of the opinions in Pleasant Grove v. Summum. Summum is a significant case because it expands “government speech” to cover broad, thematic government identity messages in the form of donated monuments, including the much-litigated Eagles-donated Ten Commandments. This Article explores the fine distinctions between the new “government speech doctrine” – a defense in Free Speech Clause cases that allows government to express its own viewpoint and to reject alternative views – and the Establishment Clause – which prohibits government from expressing a viewpoint on religion, and from favoring some religions over others. I argue that …

Are Catholics Unreliable From A Democratic Point Of View? Thoughts On The Occasion Of The Sixtieth Anniversary Of Paul Blanshard's American Freedom And Catholic Power, Patrick Mckinley Brennan

Working Paper Series

From 1949 to 1950, Paul Blanshard’s American Freedom and Catholic Power dominated the New York Times best-seller list for eleven months, having captured the attention of American intelligentsia with its claim that “the Catholic problem is still with us” and its call for the formation of a “resistance movement.” Sixty years later, Blanshard’s bigotry is no longer defended in educated circles. Questions remain, though, concerning why Blanshard’s ideas made progress in some of the smartest American minds and throughout much of the culture. Was Blanshard onto something subversive about Catholics? Are Catholics’ commitments not compatible with the demands of American …

Are Legislation And Rules A Problem In Law? Thoughts On The Work Of Joseph Vining, Patrick Mckinley Brennan

Working Paper Series

Written for a conference at Villanova Law School held to celebrate and explore the work of Joseph Vining over forty years, this paper considers the adequacy of Vining’s phenomenology of law. Specifically, it inquires into the accuracy of Vining’s startling claims that “legislation is a problem in law, not central to law” and “rules are nowhere to be found” in law. The argument of the paper is that when -- but only when -- law is understood to be an ordinance of reason in the mind of him or them who have care of the community, for the common good, …

Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray

David C. Gray

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.

A New Name For An Old And Discredited Metaphor, Luis M. Dickson

Luis M. Dickson

This Article engages Paul Horwitz's recent Churches as First Amendment Institutions: Of Sovereignty and Spheres, arguing that the Kuyperian approach invoked by Horwitz is functionally indistinguishable from 'separate spheres' ideology long cited as justification for discrimination against women and blacks.

Religious Argument, Free Speech Theory, And Democratic Dynamism, Gregory P. Magarian

Gregory P. Magarian

Political theorists have long debated whether liberal democratic norms of public political debate should constrain political arguments grounded in religious beliefs or similar conscientious commitments. In this Article, Professor Magarian contends that normative insights from free speech theory have salience for this controversy and should ultimately lead us to reject any normative constraint on religious argument. On the restrictive side of the debate stand prominent liberal theorists, led by John Rawls, who maintain that arguments grounded in religion and other comprehensive commitments threaten liberal democracy by offering illegitimate grounds for government action and destabilizing democratic politics. On the permissive side …

Seeking The St. Thomas Effect: Law School Mission And The Formation Of Professional Identity, Jennifer Wright

Jennifer Wright

Law schools have long prided themselves on their ability to train law students to “think like lawyers”. Many law schools and faculty deny that they do or should play any role in the formation of students’ professional and moral identities. Recent events point to the high social costs imposed by lawyers and judges who demonstrate no professional allegiance beyond pleasing the client or employer and maximizing the bottom line. Our legal system and our society as a whole depend upon ethical and professional behavior on the part of our lawyers and judges. Recent studies have challenged law schools’ rejection of …

Jesus Follows The Socratic Method, Kristopher Eugene Nichols

Kristopher Eugene Nichols

This article, Jesus Follow the Socratic Method, is a detailed analysis and comparison of the trials of Socrates and Jesus of Nazareth. An investigation of these men and trials, two of the most famous in Western history, uncovers truths about human nature, the justice systems of these two ancient societies, and the power and danger of the spoken word to a vocal critical thinker in his own society. This article is twenty-two pages long, contains footnotes and follows the Bluebook format.

Othering And The Law, Susan J. Stabile

Susan J. Stabile

The premise of this Article is that an underlying attitude of “othering” pervades current discussions about what the law should and should not do to address the conditions and needs of various categories of persons. Although we do not necessarily acknowledge it, the fact that our discussions proceed from a view of the people whose situations or problems being discussed as “other” makes a difference to how we evaluate various public policy initiatives.

The Article is not an effort to engage in a detailed discussion or resolution of any particular question of law and public policy. Instead its focus is …

Why Same-Sex Marriage Will Not Repeat The Errors Of No-Fault Divorce, Austin R. Caster

Austin R Caster

Because so many negative ramifications resulted from changing marriage laws through no-fault divorce legislation, it is understandable that those who rightfully feared no-fault divorce would also fear any additional changes to the definition of marriage. Those fears are unfounded as applied to same-sex marriage legislation, however, because the same consequences resulting from no-fault divorce do not apply to same-sex marriage. Whereas changing marriage exit rights through laws such as no-fault divorce legislation resulted in an increased divorced rate throughout the world, the opposite has happened in countries that have allowed same-sex marriage laws by changing marriage entrance rights. Society has …

R (On The Application Of E) (Respondent) V Governing Body Of Jfs And The Admissions Appeal Panel Of Jfs (Appellants) And Others (Case Note) [2009] Uksc 15, Reuven (Ruvi) Ziegler

Dr. Reuven (Ruvi) Ziegler

This case-note offers comparative perspectives on the UK Supreme Court’s judgment in the JFS case (alleged racially discriminatory school admissions policy) and the Israeli Supreme Court’s judgment in the Emanuel Haredi school case (alleged Ashkenazi/Sephardi segregation arrangements).

Establishment Clause-Trophobia: Building A Framework For Escaping The Confines Of Domestic Church-State Jurisprudence, Jesse R. Merriam

Jesse R Merriam

Does the First Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion,” apply to United States conduct abroad? For years, this question has been lurking in the background of discussions of the Constitution’s extraterritorial application. Indeed, while the U.S. Supreme Court has ruled that the Fifth and Sixth Amendments apply abroad in some circumstances, and that the Fourth Amendment’s warrant requirement generally does not apply abroad, the Court has never considered the transnational applicability of the Establishment Clause. In fact, only one case has directly addressed whether the Establishment Clause applies abroad, Lamont …

When Prayer Trumps Politics: The Politics And Demographics Of Renewable Portfolio Standards, Joshua P. Fershee

Joshua P Fershee

This Article seeks to understand who supports renewable energy mandates (and why) by analyzing a variety trends found in political and socio-economic data by state, as well as by state renewable energy opportunities (or the lack of such opportunities). The review finds little shocking in the way of politics: Democratic states tend to favor mandates and Republican states tend not to have mandates. Somewhat surprisingly, the correlations among states with wind and solar resources (as well as most of the demographic data) ranged from limited to inconclusive. In religion, however, a strong trend developed. The states with higher Catholic populations …

Secretly Falling In Love: America's Love Affair With Controlling The Hearts And Minds Of Public School Teachers, Kristin D. Shotwell

Kristin D Shotwell

The Protestant origins of American public schools, rigid gender roles, and obsolete legal doctrines combined to create a pubic identity for the female teacher as a chaste role model. This ideal of the teacher as an asexual, moral figure persists, and teachers continue to be discharged for private, legal behavior because it offends community morality. Drawing on work from religious, legal and educational historians, this article explores how Protestant values, coverture, male-only suffrage, and the spousal rape exemption led to the development of a stringent moral code for America’s earliest female teachers.

This article explores how teachers gained some due …