Law Commons^™

Comment On Koppelman And Leiter, Christopher T. Wonnell

San Diego Law Review

Andrew Koppelman has offered a challenge to Brian Leiter's view that the proper public attitude toward religion is one of tolerance rather than active respect. Let us explore the nature of that challenge and offer a few observations on the topic.

From Religious Freedom To Moral Freedom, Michael J. Perry

San Diego Law Review

The right to moral freedom is not only analogous to the right to religious freedom. The right to moral freedom, as I explain in this essay, represents a broadening of the right to religious freedom - a broadening that for many of us is compelling.

Against Freedom Of Conscience, Richard J. Arneson

San Diego Law Review

Is there a moral right to freedom of conscience? Should a legal right to freedom of conscience be established in each country on Earth? This essay argues for negative answers to both questions.

Theses On Secularism, Nomi Maya Stolzenberg

San Diego Law Review

Notwithstanding the notorious difficulty of defining religion and the consequent effort on the part of jurists and academics to avoid embracing any particular definition, one model of religion has dominated modern discourse: religion as conscience. Because of the dominance of this model, alternative views - which either subordinate the conscience to other supposedly more fundamental features of religion or dispense with the psychological apparatus of conscience altogether - have been largely submerged in modern political and legal discourse. Yet they will not remain suppressed. As a number of the conference papers have attest, alternatives and challenges to the dominant model …

The First Amendment's Religion Clauses: "Freedom Of Conscience" Versus Institutional Accommodation, Michael J. White

San Diego Law Review

The phrase "freedom of conscience" is, of course, not to be found in the United States Constitution: the First Amendment says only that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." However, it seems probable that one, then-contemporary Protestant conception of freedom of conscience was presupposed in these two clauses. Evidence for this conjecture can be found not only in the debate and proposals concerning the Bill of Rights of the United States Constitution but also in the frequently more expansive language of early state constitutions.

Three Versions Of The Politics Of Conscience: Hobbes, Spinoza, Locke, Ronald Beiner

San Diego Law Review

The organizers of this symposium have posed the question: is the idea of conscience fundamentally rooted in religious commitments? This question inevitably draws us back to the seventeenth century, for that is when the discourse of conscience ultimately originated. And when we consult the most important sources from that epoch, we get, I believe a clear answer to the question, although it may not be the answer that the organizers of the symposium anticipated when they conceived the theme of this gathering.

Was It Science, Not Religion?, Maimon Schwarzschild

San Diego Law Review

Does freedom of conscience, and perhaps freedom of thought generally, have religious roots? Ronald Beiner's Three Versions of the Politics of Conscience: Hobbes, Spinoza, Locke traces the idea of conscience as a factor in Western political thought to ideas that crystallized in the seventeenth century. Beiner examines three leading seventeenth century thinkers - Hobbes, Spinoza, and Locke - to explore whether conscience, or rather the idea of freedom of conscience, was specially a religious imperative for these thinkers: whether their religious commitments or their respect for religious integrity underlay and motivated their ideas about freedom of conscience.

Fundamental Questions About The Religion Clauses: Reflections On Some Critiques, Kent Greenawalt

San Diego Law Review

This Essay responds to some major critiques of my work on the religion clauses. The effort has seemed worth undertaking because many issues the critics raise lie at the core of one's approach to free exercise and nonestablishment, and some of those issues matter greatly for constitutional adjudication more broadly. Like any author, perhaps, my reaction to reading some comments has been that I did not quite say that, but I shall not bore you with these quibbles about how well I explained myself in the past. Rather, I shall try to confront the genuinely basic questions that many of …

Response To Professor Kent Greenawalt's Lecture, Larry Alexander

San Diego Law Review

The discussion of law and religion can take various forms. One form is conceptual: What is religion? How are religious claims different from moral claims or metaphysical ones? Is the method of evaluating religious claims for their truth - the epistemology of religious claims - different from the methods of evaluation of moral claims or metaphysical ones?

Response To Professor Kent Greenawalt's Lecture, Steven D. Smith

San Diego Law Review

It is an honor for me to be able to comment on this lecture by Professor Kent Greenawalt, who is one of the people in the legal academy I admire most, as a scholar and as a person.

An Affair To Remember: The State Of The Crime Of Adultery In The Military, Katherine Annuschat

San Diego Law Review

The recent cases against Penland and Yee demonstrate with clarity the military's willingness to pursue adultery prosecutions for questionable motives. In light of this fact, and the obsolescence of these statutes in the public mind, adultery should be removed from the enumerated offenses under article 134. Part II will discuss the history of the crime of adultery in American jurisprudence, including the current state of adultery as a crime, as well as the current public opinion on adultery in light of several recent high-profile adultery scandals in the media.

Part III will delve into the history of adultery prosecutions in …

International Legal Framework On The Prevention Of Vessel-Source Pollution, Nengye Liu

Research Collection Yong Pung How School Of Law

T h is paper exa mi ne s the international legal f r a m e w o r k of the prevention of vessel-source marine pollution. It provides an overview of current international framework. First-the study introduces International Maritime Organization (IM O ) and the Law of the Sea Convention (LO SC ). Second-it analyzes the relation between Conventions adopted under the auspices of the IMO (IMO Conventions) and the LOSC. Third.it discusses major IMO Conventions dealing with prevention of vessel-source pollution. Finally, this paper addresses challenges of the international legal framework.

No One Ever Died From Copyright Infringement: The Inducement Doctrine's Applicability To Firearms Manufacturer Liability, Shane Wagman

Cardozo Law Review

No abstract provided.

A 30-Per-Cent Deviation Is Too Wide, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

Following Prime Minister Lee's recent announcement that the Electoral Boundaries Review Committee (EBRC) had been convened, SMU Assistant Professor Eugene Tan opined that the 30-per-cent deviation rule, of which the EBRC operates on, is too wide and ?overly-generous? in small and compact Singapore. Professor Tan also commented that the committee's redrawing of electoral boundaries should avoid being seen as gerrymandering.

The Economic Impact Of Local Immigration Regulation: An Empirical Analysis, Huyen Pham, Pham Hoang Van

Cardozo Law Review

A wave of local anti-immigration laws has swept the country, triggering contentious debate and raising significant legal and policy issues. One critical dimension that has been largely ignored, however, is the economic impact of these laws: Are jurisdictions with them better off economically than those without them?

In the first empirical study of this issue, we analyze the economic impact of local anti-immigration laws. The laws take different forms - some authorize local police to enforce federal immigration laws, some restrict benefits like housing and employment to those with legal immigration status, and some require all government transactions to be …

Redemption And Resistance: Lessons In Non-Violent Action From Early Aotearoa/New Zealand, Ian Macduff

Research Collection Yong Pung How School Of Law

This article provides a brief account of the non-violent resistance of two Maori chiefs, Te Whiti and Tohu, in 19th century New Zealand. Each example of such non-violent or passive resistance is unique to its historical and cultural context; but at the same time there is a tangible common ground between this example and those found elsewhere, such as Martin Luther King and Gandhi. This article will also draw a link between the politics of acts of resistance – in this case, resistance to the forceful acquisition of Maori land – and faith-based justifications. In conclusion, it will be suggested …

The Illusory Right To Abandon, Eduardo M. Penalver

Michigan Law Review

The unilateral and unqualified nature of the right to abandon (at least as it is usually described) appears to make it a robust example of the law's concern to safeguard the individual autonomy interests that many contemporary commentators have identified as lying at the heart of the concept of private ownership. The doctrine supposedly empowers owners of chattels freely and unilaterally to abandon them by manifesting the clear intent to do so, typically by renouncing possession of the object in a way that communicates the intent to forgo any future claim to it. A complication immediately arises, however due to …

The Right Issue, The Wrong Branch: Arguments Against Adjudicating Climate Change Nuisance Claims, Matthew Edwin Miller

Michigan Law Review

Climate change is probably today's greatest global environmental threat, posing dire ecological, economic, and humanitarian consequences. In the absence of a comprehensive regulatory scheme to address the problem, some aggrieved Americans have sought relief from climate-related injuries by suing significant emitters of greenhouse gases under a public nuisance theory. Federal district courts have dismissed four such claims, with each court relying at least in part on the political question doctrine of nonjusticiability. However, one circuit court of appeals has reversed to date, finding that the common law cognizes such claims and that the judiciary is competent and compelled to adjudicate …

Owning Mark(Et)S, Mark A. Lemley, Mark P. Mckenna

Michigan Law Review

Trademark owners regularly rely on claims that the defendant is "free riding" on their mark by making money using that mark, money the trademark owners say should belong to them. We analyze those free-riding claims and find them wanting. The empirical data shows that defendants in unrelated markets can benefit from using a well-known mark, but that neither mark owners nor consumers suffer any injury from that use. A legal claim that a defendant is unjustly benefiting by using a plaintiff's mark is hollow unless it is accompanied by a theory of why that benefit should rightly belong to the …

Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz

Michigan Law Review

In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a …

E C Investment Holding Pte Ltd V Ridout Residence Pte Ltd And Another (Orion Oil Limited And Another, Interveners), Yihan Goh

Research Collection Yong Pung How School Of Law

The High Court decision of E C Investment Holding Pte Ltd v Ridout Residence Pte Ltd and another (Orion Oil Limited and another, Interveners) [2010] SGHC 270 (“E C Investment”) raises several contractual issues, chief amongst which – and the focus of this note – concern duress. This note discusses three points of the judgment relating to duress: (a) the reaffirmation of economic duress as a vitiating factor; (b) the status of lawful threats; and (c) the burden of proof in economic duress cases.

The Economic Impact Of Local Immigration Regulation: An Empirical Analysis, Huyen Pham, Pham Hoang Van

Faculty Scholarship

A wave of local anti-immigration laws has swept the country, triggering contentious debate and raising significant legal and policy issues. One critical dimension that has been largely ignored, however, is the economic impact of these laws: Are jurisdictions with them better off economically than those without them?

In the first empirical study of this issue, we analyze the economic impact of local anti-immigration laws. The laws take different forms some authorize local police to enforce federal immigration laws, some restrict benefits like housing and employment to those with legal immigration status, and some require all government transactions to be conducted …

Uncertainties Remain For Judicial Takings Theory, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court waded into the waters of judicial takings last summer with a divided opinion that effectively carries no precedential value but is likely to have lower courts and property scholars trying to decipher its meaning for many years to come.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection, 130 S. Ct. 2592 (2010), the Court decided that some Florida gulf-front property owners are not entitled to compensation under the federal Constitution’s Takings Clause when a state beach restoration project separates their private property from the water’s edge. Although the state prevailed in this …

Should The Patient Conquer?, William M. Sage

Faculty Scholarship

In 1596, Robert Bainbridge carved “The patient shall conquer” into the wall of his cell in the Tower of London. It is highly unlikely that Bainbridge was an early advocate for recipients of medical care, imprisoned perhaps by a cruel sheriff denied his payroll taxes or by a domineering barber refused his fee. But its unintended meaning would immediately provoke sympathy from many health care reformers. As we confront the critical challenges of implementing national health-care reform, however, whether the patient should conquer is a legitimate topic for debate. Does the patient’s conquest risk the collapse of the health-care system …

October 31, 2010: Why I Wish No One Had Gone To The Stewart/Colbert Rally, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why I Wish No One Had Gone to the Stewart/Colbert Rally“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Conference Program

Steroid Use, Abuse and Policy Symposium (2010)

No abstract provided.

Letter To Editor—Trees Vs. Air Pollution, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Bruce Finley's article lauded trees for absorbing smog. Trees also mitigate CO2 emissions. But not all trees are equally beneficial: some species emit more volatile organic compounds than they absorb. In urban environments, we need more restrictions to avoid negative impacts on those around us: e.g., wood burning or watering restrictions. Sunlight plays an increasing role in energy solutions - for solar energy and urban gardens. Trees that mature at over 70 feet can create shade pollution for neighbors up to three lots away. Several of the "right trees" for smog absorption are also those that mature at lower heights: …

Speech In The Role Of Fiduciary Law And Trust In The Twenty-First Century, Wendy J. Gordon

Scholarship Chronologically

As someone who is not a specialist in the area, I am grateful to be included in today's conference. I wanted to be here to mark the admiration I have for Professor Frankel. Like Ken Simons, I have benefited from Tamar's knowledge base which is both deep and wide, her lively and inexhaustible curiosity, her imagination, and the immense intellectual stimulation she inevitably provides. Her new book under discussion today reveals some of her extraordinary powers, in its skillful use of materials from sources as diverse as Hammurabi and Grotius, from histories ancient and modem, traditions religious and secular, and …

Meeting Scheduling Made Easy, Debbie Ginsberg

Presentations

Debbie Ginsberg provided an overview and demonstration of tools you can use to simplify setting up group meetings.

October 28, 2010: Is Islam A Religion Of Peace?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is Islam a Religion of Peace?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.