Law Commons^™

The Pluralist Predicament: Contemporary Theorizing In The Law Of Religious Freedom, Steven Douglas Smith

Steven D. Smith

Religious pluralism is at once the cause of and a substantial impediment to theorizing about religious freedom. The purpose of theorizing in law is typically to impose order on an unruly collection of phenomena - of seemingly conflicting decisions, or doctrines, or legal arguments - and to do so by articulating and elaborating the foundational truths that govern the subject in question. In a condition of religious pluralism, however, theorists typically suppose that it is impermissible to appeal to contested religious beliefs. But these are the very beliefs that would provide the natural foundations for thinking about the proper relation …

Religion, Democracy, And Autonomy: A Political Parable, Steven D. Smith

Steven D. Smith

No abstract provided.

Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith

Steven D. Smith

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …

¿Puede La Fe Aportar Algo Al Derecho? La Respuesta De La Teología Jurídica, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

El artículo analiza la posibilidad de que la fe aporte contenidos a la ciencia del Derecho y al ordenamiento jurídico. La perspectiva no es histórica, sino jurídica y teológica. Consta de tres partes: (i) el planteamiento del problema del aporte de la fe; (ii) la delimitación de la teología jurídica, que es la ciencia llamada a resolver el problema; y, (iii) la respuesta al problema. En el fondo el análisis procura mostrar cómo la fe puede ser “fuente de derecho”. Termina señalando el alcance y los límites de esta fuente en el derecho sobre las cosas naturales y sobrenaturales.

Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders, Michael A. Helfand

Michael A Helfand

This Article considers a trend towards what I have termed the "new multiculturalism," where conflicts between law and religion are less about recognition and symbolism and more about conflicting legal orders. Nothing typifies this trend more than the increased visibility of religious arbitration, whereby religious groups use current arbitration doctrine to have their disputes adjudicated not in U.S. courts and under U.S. law, but before religious courts and under religious law. This dynamic has pushed the following question to the forefront of the multicultural agenda: under what circumstances should U.S. courts enforce arbitration awards issued by religious courts in accordance …

Legal Lines In Shifting Sand: Immigration Law And Human Rights In The Wake Of September 11, Daniel Kanstroom

Daniel Kanstroom

In March of 2004, a group of legal scholars gathered at Boston College Law School to examine the doctrinal implications of the events of September 11, 2001. They reconsidered the lines drawn between citizens and noncitizens, war and peace, the civil and criminal systems, as well as the U.S. territorial line. Participants responded to the proposition that certain entrenched historical matrices no longer adequately answer the complex questions raised in the “war on terror.” They examined the importance of government disclosure and the public’s right to know; the deportation system’s habeas corpus practices; racial profiling; the convergence of immigration and …

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv

William H. Byrnes

This article describes the ancient Jewish practices, codified in Biblical law and later legal commentary, to protect the needy. The ancient Hebrews were the first civilization to establish a charitable framework for the caretaking of the populace. The Hebrews developed a complex and comprehensive system of charity to protect the needy and vulnerable. The Jews’ anti-poverty measures - including regulation of agriculture, loans, working conditions, and customs for sharing at feasts - were a significant development in the jurisprudence of charity.

The first half begins with a brief history of ancient Jewish civilization, providing context for the development of charity …

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv

William H. Byrnes

This article describes the ancient Jewish practices, codified in Biblical law and later legal commentary, to protect the needy. The ancient Hebrews were the first civilization to establish a charitable framework for the caretaking of the populace. The Hebrews developed a complex and comprehensive system of charity to protect the needy and vulnerable. The Jews’ anti-poverty measures - including regulation of agriculture, loans, working conditions, and customs for sharing at feasts - were a significant development in the jurisprudence of charity.

The first half begins with a brief history of ancient Jewish civilization, providing context for the development of charity …

Introductory Note: Symposium On Lawyering And Personal Values – Responding To The Problems Of Ethical Schizophrenia, Samuel J. Levine

Samuel J. Levine

In recent years, legal practitioners and scholars alike have identified a growing crisis in the legal profession. Increasingly, lawyers feel dissatisfied with the roles they are expected to play and the conduct demanded of them. In particular, many lawyers see a widening gap between their personal values and those employed in legal practice. In response to the dichotomy between personal and professional values, some lawyers attempt to develop a corresponding dichotomy in their personalities, separating the “professional self” from the “personal self.” Such a response, however, may lead to a kind of “ethical schizophrenia,” a condition in which an individual …

Teaching Jewish Law In American Law Schools: An Emerging Development In Law And Religion, Samuel J. Levine

Samuel J. Levine

In recent years, religion has gained an increasing prominence in both the legal profession and the academy. Through the emergence of the "religious lawyering movement," lawyers and legal scholars have demonstrated the potential relevance of religion to many aspects of lawyering. Likewise, legal scholars have incorporated religious thought into their work through books, law journals and classroom teaching relating to various areas of law and religion. In this Essay, Levine discusses one particular aspect of these efforts, namely, the place of Jewish law in the American law school curriculum. Specifically, he outlines briefly three possible models for a course in …

Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine

Samuel J. Levine

In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief. While the Justices have articulated valid concerns concerning these cases, courts should not allow these concerns to deter them from making decisions vital to the effective adjudication of Free Exercise and Establishment Clause cases. In fact, it appears that as a result of the Court's increasing refusal to consider carefully the religious questions central to many cases, the Court often tends to group together religious claims and practices, regardless of the relative …

Law, Ethics, And Religion In The Public Square: Principles Of Restraint And Withdrawal, Samuel J. Levine

Samuel J. Levine

In recent years, scholars have begun to recognize and discuss the profound questions that arise in attempting to determine the place of religion in the law and the legal profession. This discussion has emerged on at least two separate yet related levels. On one level, scholars have debated the place of religion in various segments of the public sphere, including law and politics. On a second level, lawyers have expressed the aim to place their professional values and obligations in the context of their overriding religious obligations. This article explores, from both an ethical and jurisprudential perspective, the question of …

Taking Prosecutorial Ethics Seriously: A Consideration Of The Prosecutor's Ethical Obligation To Seek Justice In A Comparative Analytical Framework, Samuel J. Levine

Samuel J. Levine

This article examines the complex nature of the prosecutor's broad obligation to seek justice through a consideration of the similarly broad directive in Jewish law requiring that "in all [of] your ways acknowledge [God]." While many have critiqued the broad directives governing a prosecutor's ethical duties, through this comparative analytical framework it can be seen that the prosecutor's broad ethical directive to seek justice serves as a workable and appropriate standard for prosecutorial ethics. In many ways, a prosecutor faces an ethical obligation unlike other attorneys. Ethical obligations require that a prosecutor forgo conduct that would increase the likelihood of …

The Niqab In The Courtroom: Protecting Free Exercise Of Religion In A Post-Smith World, Adam Schwartzbaum

Adam Schwartzbaum

The niqab has become enmeshed in heated political controversy all across the world. In the United States, the situation of Ginnah Muhammad exemplifies the complex legal issues arising from conflicts between individuals whose religious beliefs compel this practice and the secular state. Muhammad, an African-American Muslim woman, was ejected from a Michigan small claims court for refusing to remove her veil while testifying. This Comment explores the constitutionality of this action, and a subsequent amendment to the Michigan Rules of Evidence passed in response to her case giving judges the power to “exercise reasonable control over parties and witnesses." Inevitably, …

Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman

Barak D Richman

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …

After The Fall: The Employer's Duty To Accommodate Employee Religious Practices Under Title Vii After Ansonia Board Of Education V. Philbrook, Peter Zablotsky

Peter Zablotsky

No abstract provided.

"Curst Be He That Moves My Bones:" The Surprisingly Controlling Role Of Religion In Equitable Disinterment Decisions, Peter Zablotsky

Peter Zablotsky

No abstract provided.

Antisemitism In The Academic Voice: Confronting Bigotry While Protecting Free Speech, Kenneth Lasson

Kenneth Lasson

ANTISEMITISM IN THE ACADEMIC VOICE Confronting Bigotry While Protecting Free Speech By Kenneth Lasson * Abstract Among the abuses of the academic enterprise that have been taking place in American universities over the past several decades, and continue to this day, are failures of intellectual rigor: the abandonment of reliance on facts, common sense, and logic in the pursuit of narrow political agendas – which all too often presented in the academic voice. Students today increasingly find themselves confronted by curricula manipulated by scholarly extremists. While the number of overt antisemitic incidents has declined markedly in the United States over …

A Jewish-Sponsored Law School: Its Purposes And Challenges, Howard Glickstein

Howard Glickstein

No abstract provided.

Academic Freedom In Religiously Affiliated Law Schools: A Jewish Perspective. (Symposium On Religiously Affiliated Law Schools), Howard Glickstein

Howard Glickstein

No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981(Eighteenth Annual Supreme Court Review), Eileen Kaufman

Eileen Kaufman

No abstract provided.

Employment Discrimination And Presidential Immunity Cases, Eileen Kaufman

Eileen Kaufman

No abstract provided.

Discrimination Cases Of The 2002 Term (Symposium: The Fifteenth Annual Supreme Court Review), Eileen Kaufman

Eileen Kaufman

No abstract provided.

Life, Death & The God Complex: The Effectiveness Of Incorporating Religion-Based Arguments Into The Pro-Choice Perspective On Abortion, Stacy A. Scaldo

Stacy A Scaldo

While speaking on the issue of healthcare in August of 2009, President Barrack Obama told a meeting of Jewish rabbis, “We are God’s partners in matters of life and death.” While the President’s message was expressly targeting choices in healthcare and end of life decisions, the statement is representative of a shift in the public rhetoric reflective of all matters concerning life - including abortion. This, indeed, would be a remarkable change in both express policy and argument identification – one that appears to be a new weapon in the arsenal of those who identify themselves with the pro-choice movement. …

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

Mark A. Chinen

International law has been criticized, not just for its formal incoherence, but for its alleged complicity in the exclusion of large numbers of people from the benefits and processes of the international system. In this Article I consider a story from the New Testament for what it might say about those critiques. 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, …

Further Reflections On The Role Of Religion In Lawyering And In Life, Samuel J. Levine

Samuel J. Levine

No abstract provided.

Further Reflections On The Role Of Religion In Lawyering And In Life, Samuel J. Levine

Samuel J. Levine

No abstract provided.

Reflections On The Practice Of Law As A Religious Calling, From A Perspective Of Jewish Law And Ethics, Samuel J. Levine

Samuel J. Levine

This Essay is based on introductory remarks Levine delivered at the inaugural conference of the Pepperdine Institute on Law, Religion, and Ethics, "Can the Ordinary Practice of Law be a Religious Calling?," held on February 6-7, 2004 at Pepperdine University School of Law. In thinking about the practice of law as a religious calling, Levine argues that we should first consider the broader issue of the general relevance of religion to various areas of life, including work. From a perspective of Jewish law and ethics, moral conduct comprises an imperative at home and at the workplace no less than at …

The Constitutional Right To Refuse: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Mark L Rienzi

The Fourteenth Amendment rights of various parties in the abortion context—the pregnant woman, the fetus, the fetus’ father, the state—have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. …

The Hollow Promise Of Freedom Of Conscience, Nadia N. Sawicki

Nadia N. Sawicki

Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates – most notably in the medical and military contexts – are predicated on the theory that claims of conscience are worthy of legal respect. This Article challenges established assumptions, concluding that claims about the importance of conscience in American society have been highly exaggerated.

This Article first …