Law Commons^™

The Constitutional Structure Of Disestablishment, Ian C. Bartrum

Scholarly Works

This article proceeds in the structuralist tradition, which Professor Charles Black describes as "the method of inference from the structure and relationships created by the Constitution." The article takes a structural approach to the Establishment Clause: it reexamines the theoretical foundations of disestablishment, and infers a constitutional structure designed to create a dialectical relationship between political institutions and social institutions. The structural thesis requires that our political institutions safeguard individual liberty of conscience by bracketing all religious questions. The antithesis ensures the existence of free and independent social organizations dedicated to building public virtue. The article then applies the structural …

Derrick Bell's Narratives As Parables, George H. Taylor

Articles

Use of the narrative form in law and legal analysis remains controversial, especially by advocates of critical race theory. Critics maintain that narratives can distort if they are not sufficiently based on empirical fact or reason. Narratives, the claim goes, must be evaluated on the basis of objective standards. My Article argues that this posture critical of narrative is mistaken. I contend that to comprehend how narratives should be interpreted, their literary character must first be understood.

The Article examines the narratives of Derrick Bell, the preeminent critical race and narrative scholar, and maintains that Bell's narratives should be read …

Twentieth Century Approaches To Defining Religion: Clifford Geertz And The First Amendment, Barbara Barnett

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Shifting Toward Balance, Not Conservatism: The Court's Interpretation Of The Lemon Test's Legislative Intent Prong And Reaction From The Electorate, Kedrick N. Whitmore

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Chilling Effect Of Government Surveillance Programs On The Use Of The Internet By Muslim-Americans, Dawinder S. Sidhu

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Uncovering Identity, Paul Horowitz

Michigan Law Review

This Review raises several questions about Yoshino's treatment of identity, authenticity, and the "true self' in Covering. Part I summarizes Yoshino's book and offers some practical criticisms. Section II.A argues that Yoshino's treatment of authenticity and identity leaves much to be desired. Section II.B argues that Yoshino's focus on covering as an act of coerced assimilation fails to fully capture the extent to which one's identity, and one's uses of identity, may be fluid and deliberate. Section II.C focuses on another identity trait that runs through Yoshino's book, always present but never remarked upon: those aspects of identity and …

Deep Purple: Religious Shades Of Family Law, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

"Deep Purple" examines the impact of religion on the politics and jurisprudence of abstinence education. Abstinence education is one of the many locations (issues) in the contemporary culture wars between red and blue state values. Families who live in red and blue states are experiencing divergent life patterns, and religion affects the development of these patterns. Frequency of church attendance has been tied to likelihood of marriage, and, as this paper shows, has been profoundly influential in approaches to teen sexuality. Religion decreases the opportunity for dialogue and compromise on these issues because people use underlying values - such as …

Legal Commitments And Religious Commitments, Jospeh Vining

Articles

In his elegant and accessible new book, Law's Quandary, Steven Smith groups our various senses of what is real for us into ontological families: the mundane; the scientific, including mathematics; and the religious. These supply "lumberyards," as it were, for thought and discussion about the world and action in it. Law itself is not one of them. Those involved in law, as citizens or professionals practicing law or speaking for or about law, are presented in the book as looking out from law to the ontological resources available in the lumberyards he describes.

The Role Of The 'Natural Family' In Religious Opposition To Human Rights Instruments, Linda C. Mcclain

Faculty Scholarship

This chapter examines how the vision of the natural family articulated by several prominent conservativereligious organizations in the United States shapes their opposition to certain human rights instruments. TheUnited Nations' 1989 Convention on the Rights of the Child seems to reflect an advance in internationalhuman rights formulations and to have generated a high degree of formal commitment by governments, as evidenced by its quick and virtually universal ratification. However, the United States stands nearly alone innot having ratified the Convention, and the religious groups examined in this chapter strenuously urge that it should not do so, lest it undermine the …

Found Law, Made Law And Creation: Reconsidering Blackstone's Declaratory Theory, William Brewbaker

William S. Brewbaker III

The subject of this paper is Blackstone's famous declaratory theory of law - the claim that judges find the law, rather than make it. Blackstone's claim is widely rejected in the legal academy, often because Blackstone is (wrongly) associated with the brooding omnipresence view of law rejected in cases like Erie, Guaranty Trust and Southern Pacific Co. v. Jensen. I argue that Blackstone's theory fails for other reasons - namely, because his account does not square well with law practice as it exists and because his distinction between legislative lawmaking and judicial declaration is ultimately unsustainable. Despite its faults, Blackstone's …

Thomas Aquinas And The Metaphysics Of Law, William Brewbaker

William S. Brewbaker III

Despite modernity's longstanding aversion to metaphysics, legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This paper examines perhaps the most famous of metaphysical legal texts - Thomas Aquinas' still-widely-read Treatise on Law - with a view toward tracing the influence of Thomas' metaphysical presuppositions. This article shows that Thomas' account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas' hierarchical view of reality exposes tensions between Thomas' "top-down" account of law and his sophisticated "bottom-up" observations. For example, Thomas grounds human law's authority …

Reflecting On Negligence Law And The Catholic Experience: Comparing Apples And Elephants, Randy Lee

Randy Lee

No abstract provided.