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Full-Text Articles in Law

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur Dec 2011

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur

Gregory A. Kalscheur, S.J.

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it be seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper …


“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield Nov 2011

“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield

Alan E Garfield

One might have expected that the Supreme Court’s recent decision in the violent video game case, Brown v. Entertainment Merchants Ass’n, would have been a thoughtful balancing of society’s competing interests in protecting freedom of speech and protecting children from harm. After all, the Supreme Court had held decades earlier that the government could deny minors access to soft-porn, or what the Court called “girlie magazines.” So one could have assumed the Court would seriously consider California’s claim that minors also needed sheltering from the grittier world of violent video game rapes, beheadings, and ethnic cleansings. Yet, as Justice Scalia’s …


Holmes And Dissent, Allen P. Mendenhall Nov 2011

Holmes And Dissent, Allen P. Mendenhall

Allen Mendenhall

Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Holmes’s dissents were sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and …


First Amendment Based Copyright Misuse, David S. Olson Oct 2011

First Amendment Based Copyright Misuse, David S. Olson

David S. Olson

We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or—if judges accept the proposal of this Article—courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control others’ speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new …


First Amendment Interests And Copyright Accomodations, David S. Olson Oct 2011

First Amendment Interests And Copyright Accomodations, David S. Olson

David S. Olson

Copyright law exists to encourage the creation of works of authorship by granting exclusive rights. But copyright’s incentive function seems in tension with the public’s First Amendment interests to use and freely hear copyrighted speech. Conventional wisdom holds, however, that copyright law serves to encourage much more speech than it discourages, and resolves First Amendment concerns with protections internal to copyright law like the fair use defense and the idea/expression dichotomy. This Article argues that the conventional wisdom no longer holds given the unprecedented expansion of copyright’s scope and corresponding drastic diminution of the public domain in the last three …


Interview With Professor Kent Greenfield About His Book “The Myth Of Choice: Personal Responsibility In A World Of Limits”, Kent Greenfield Sep 2011

Interview With Professor Kent Greenfield About His Book “The Myth Of Choice: Personal Responsibility In A World Of Limits”, Kent Greenfield

Kent Greenfield

Professor Kent Greenfield’s newest release, The Myth of Choice: Personal Responsibility in a World of Limits (Yale University Press), is a broad-reaching view of the dynamics of choice.

Greenfield’s book begins with his knowledge of law and then ranges widely, tapping areas as diverse as sociology, the study of brain activity, and religious freedoms. He draws on scholarly commentary, news reports, political research polls and his own life decisions to complete the picture of choice and its many dimensions. Examining choice and its influence on public policy and legal theory, The Myth of Choice serves as a catalyst to challenge …


The Central American Constitutional Identity. A Study Of The Constitutional Imitation Phenomenon In The Integration Process Of The Region, Prof. Michele Carducci Aug 2011

The Central American Constitutional Identity. A Study Of The Constitutional Imitation Phenomenon In The Integration Process Of The Region, Prof. Michele Carducci

Michele Carducci Prof.

No abstract provided.


The Central American Constitutional Identity, Prof. Michele Carducci Aug 2011

The Central American Constitutional Identity, Prof. Michele Carducci

Michele Carducci Prof.

No abstract provided.


Is “Transnational” Constitutional Law Possible?, Prof. Michele Carducci Aug 2011

Is “Transnational” Constitutional Law Possible?, Prof. Michele Carducci

Michele Carducci Prof.

No abstract provided.


First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz Jul 2011

First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Lobbying And The Democratic Process, Moshe Cohen-Eliya, Yoav Hammer Jan 2011

Lobbying And The Democratic Process, Moshe Cohen-Eliya, Yoav Hammer

Yoav Hammer

No abstract provided.


An Unlikely Solution: Securities Fraud Regulation As A Model For Protecting Fortunetelling As Free Speech, Daniel Hare Jan 2011

An Unlikely Solution: Securities Fraud Regulation As A Model For Protecting Fortunetelling As Free Speech, Daniel Hare

Daniel Hare

No abstract provided.


Does Legalzoom Have First Amendment Rights: Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine Lanctot Dec 2010

Does Legalzoom Have First Amendment Rights: Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine Lanctot

Catherine J. Lanctot

No abstract provided.


Corporate First Amendment Rights After Citizens United: An Analysis Of The Popular Movement To End The Constitutional Personhood Of Corporations, Susanna K. Ripken Dec 2010

Corporate First Amendment Rights After Citizens United: An Analysis Of The Popular Movement To End The Constitutional Personhood Of Corporations, Susanna K. Ripken

Susanna K. Ripken

No case in the Supreme Court’s last term was more controversial than Citizens United v. Federal Election Commission (Citizens United). In a sharply divided 5:4 decision, the Court invalidated strict federal campaign finance laws and upheld the First Amendment right of corporations to spend unlimited sums of corporate money to support or oppose candidates in political elections. Although mainstream criticism of Citizens United was fierce and widely publicized, a lesser known response to the case is a grassroots popular movement calling for an amendment to the Constitution establishing that money is not speech and that human beings, not corporations, are …


First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal Dec 2010

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Lawrence Rosenthal

Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.

This article offers a challenge to the purposivist account. It begins, …


Grading The Graders And Reforming The Reform: An Analysis Of The State Of Public Education Ten Years After No Child Left Behind, Jonathan C. Augustine, Craig M. Freeman Dec 2010

Grading The Graders And Reforming The Reform: An Analysis Of The State Of Public Education Ten Years After No Child Left Behind, Jonathan C. Augustine, Craig M. Freeman

Jonathan C. Augustine

Congress overwhelmingly passed the No Child Left Behind Act of 2001(“NCLB”), bipartisan legislation intended to bring about substantive reform in public education. The purpose of this article, written ten years after NCLB’s enactment, is to analyze the practical effects of NCLB’s theoretical solutions to public education’s systemic problems. Using Louisiana’s public education system as the real-world model for the law’s application, the authors ultimately recommend specific solutions for the president and Congress to consider as they contemplate changes to NCLB. The authors, like other education advocates referenced in this article, support a triparate partnership approach to educating public school children. …