Law Commons^™

Separation Of Santa And State Is Smart, Fair, Alan E. Garfield

Alan E Garfield

No abstract provided.

Nicaea And Sovereignty, Craig G. Bateman

C. G. Bateman

This research is concerned with the development of international law in so far as it relates to the historical background for the Peace of Westphalia, which itself is understood as a seminal event in the history of the growth of both the theoretical notion of sovereignty and, in its present milieu, as an attribute of states. This research gets behind Westphalia, to suggest a plausible nexus of ideology and events which led to these treaties, and to focus specifically on the event which I suggest was the sin qua non development which led to the Westphalian concord. I suggest that …

Blood Libel: Radical Islam’S Conscription Of The Law Of Defamation Into A Legal Jihad Against The West—And How To Stop It, Robert A. Pate

Robert A Pate

On May 19th, 2009, a panel of distinguished legal professionals assembled in Washington, D.C. at a conference, entitled Libel Lawfare: Silencing Criticism of Radical Islam, to discuss radical Islam’s exploitation of Western libel laws to silence authors and journalists who seek to expose terror-financing networks and criticize radical Islam. The debate also embodied a cresting wave of public concern about the surprising ways Western laws enable this assault.This paper seeks to call attention to two critical mistakes, which were perpetuated by panelists at the conference and which are consistently present in current libel lawfare scholarship. Foremost, no one has yet …

Moore-Mulligan-Brown Collection (Mss 219), Manuscripts & Folklife Archives

MSS Finding Aids

Finding aid only for Manuscripts Collection 219. This collection consists chiefly of correspondence of the Moore, Mulligan, Brown and Johns families, who are interrelated. The correspondence deals chiefly with family matters and events occurring in Trigg County, Kentucky and Allen County, Kentucky.

And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg

Matthew E Feinberg

The gay marriage ban: it is one of the most controversial issues in politics, in society, in religion, and in law today. In each venue, anything goes, everyone has an opinion, and the result is rarely consistent. The decisions may be different, but the claimants’ arguments are usually the same – banning same-sex marriage denies same-sex couples equal protection under the law.

The pink elephant in the marriage equality courtroom is religion, yet it is extremely rare for same-sex marriage bans to receive First Amendment religious rights-based inquiry. In 2009, the Supreme Court of Iowa changed all that. In its …

Spirit Food And Sovereignty: Pathways For Protecting Indigenous Peoples' Subsistence Rights, Allison M. Dussias

Allison M Dussias

Abstract: SPIRIT FOOD AND SOVEREIGNTY: PATHWAYS FOR PROTECTING INDIGENOUS PEOPLES’ SUBSISTENCE RIGHTS

By Professor Allison M. Dussias

This article examines three pathways recently followed by Native American tribes and other Native communities in seeking protection of their rights to culturally valuable and legally protected subsistence resources – wild, renewable resources on which Native peoples have traditionally relied to sustain themselves. They have pursued their claims not only through litigation in U.S. courts, but also through claims to international bodies and through the regulatory process. The sources of law and rights on which they have relied as they followed these different …

Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law – both before and after the landmark Employment Division v. Smith decision – reveals that the prohibition …

Refuge From A Jurisprudence Of Doubt: Hohfeldian Analysis Of Constitutional Law, Allen Thomas O'Rourke

South Carolina Law Review

No abstract provided.

The Height Of Sophistication: Law And Professionalism In The City-State Of Charleston, South Carolina, 1670-1775, William E. Nelson

South Carolina Law Review

No abstract provided.

Deed Of Mistrust?: The Use Of Land Transfers To Evade The Establishment Clause, David C. Peet

American University Law Review

No abstract provided.

When Insiders Become Outsiders: Parental Objections To Public School Sex Education Programs, Emily J. Brown

Duke Law Journal

This Note argues that parents' fundamental right to direct their children's moral and educational upbringing includes the right to exempt their children from objectionable sex education programs in public schools. Schools usurp parents' fundamental rights when they unilaterally introduce children to topics of human sexuality without parental notice or permission. Alleged violations of these rights merit strict scrutiny review from courts. When parents' objections are confined to discrete, tangible events, parents are constitutionally entitled to exempt their children from objectionable activities. The efficacy of this constitutional relief is more limited, however, when parental objections are pervasive and unassociated with a …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, though …

September 11th, John Maynard Keynes, Kenneth J. Arrow, And Me: The Nexus, David Randall Jenkins

David Randall Jenkins, Ph.D.

The Employment Non-Discrimination Act: An Argument For H.R. 3685, Deborah L. Cook

Deborah L Cook

This article examines the language of H.R. 3685 and compares it to an earlier version of the Employment Non-Discrimination Act that was introduced in April of 2007 as H.R. 2015. Drawing upon arguments from both conservative and liberal perspectives challenging the Act, this article argues that the latest version of the Employment Non-Discrimination Act, proposed in September of 2007 as H.R. 3685, offers greater promise for protecting gay, lesbian and bisexual Americans from discrimination in the workplace. The revised Employment Non-Discrimination Act will act to ensure that individuals will be protected regardless of their sexual orientation by the same fundamental …

The Environmental Protection In The Islamic Waqf, Nada Y. Al-Duaij

Eisa H Al-Enizy Dr.

The Environmental Protection In the Islamic Waqf: A Case Study to the Situation in Kuwait This article will spot the light over the role of the Islamic rules in reinforcing the environmental protection, through the system of Islamic Waqf, which is similar to the actual trusteeship system adopted in recent legal and economic systems. Today, some countries such as Kuwait adopted the Islamic waqf as a national law, which resulted in establishing a public authority ruling the waqf in Kuwait which became an extreme financial empire capable to lend the government in some cases. This Waqf is subject to different …

A Jurisprudence Of Dogmatism: Religion, Rationality And The Case For Homosexual Rights, Dylan Zorea

dylan zorea

I contend that arguments derived from religious beliefs are incompatible with Constitutional jurisprudence because such views are generally irrational, and consequently, judicially incontestable. Yet, due to the significance of religion in the lives of many citizens, such arguments have continually intruded into matters of law and public policy. This has been the case particularly regarding the issue of homosexual rights, where a religiously grounded animus has made it difficult for gay and lesbian persons to enjoy the full protection of law. Because religious arguments cannot be rationally justified they must be excluded from judicial analysis. I will further argue that …

Zoning For Child Protection: Declaring Communities Unfit For Child Rearing, James G. Dwyer

James G Dwyer

Current zoning law fails to reflect the reality that some geographical areas, however suitable they might be for residence by adults, are not suitable for children, because of the social and physical environment that adult residents have created. The law governing children's welfare and family relationships likewise reflects no consideration of the impact that the quality of parents’ or potential parents’ community can have on children. Yet the world outside children's homes can dramatically affect their well being, even presenting threats to their very survival. This Article is the first to recommend that governments declare some communities unfit for residence …

Licensing Facially Religious Government Speech: Summum's Impact On The Free Speech And Establishment Clauses, Scott W. Gaylord

Scott W. Gaylord

LICENSING FACIALLY RELIGIOUS GOVERNMENT SPEECH: SUMMUM’S IMPACT ON THE FREE SPEECH AND ESTABLISHMENT CLAUSES

Abstract

Scott W. Gaylord

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment—that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause—the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision …

Passive Observers, Passive Displays, And The Establishment Clause, Mark Strasser

Mark Strasser

A number of factors are thought relevant when deciding whether a particular state practice implicating religion violates constitutional guarantees: the age of the individuals who will be exposed to the practice, whether the practice at issue requires participation, whether the state is seen as endorsing religion, and whether the practice is coercive or proselytizing. What the current jurisprudence does not make clear, however, is whether the passive nature of a practice is an additional factor to be considered or whether, instead, describing a practice as “passive” is simply to use a conclusory term indicating that the practice does not violate …

No Tears For Creon, Marc O. Degirolami

Marc O DeGirolami

This essay critiques Professor Martha Nussbaum’s recent book, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION OF RELIGIOUS EQUALITY (Basic Books 2008). Nussbaum’s thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of “Equal Respect” – that “[a]ll citizens have equal rights and deserve equal respect from the government under which they live.” Nussbaum insists that Equal Respect runs like a thread throughout the tradition and that all other conceivable values of religious liberty are subordinate to …

Can The 'Death Tax' Kill Charity Too? The Impact Of Legislation On Charitable Bequests, Kristine Knaplund

Kristine Knaplund

The national debate over the federal estate tax has caused fear in American charities over the past ten years, a fear that is likely to continue for the foreseeable future. Since Congress acted in 2001 to repeal the dreaded 'death tax' for one year, for those dying in 2010, charities and individuals have become increasingly concerned about the impact of a repeal on charitable donations. While only a small percentage of charitable gifts come in the form of gifts at death, these few but generous incidents in fact amount to billions of dollars, and are imperative to the operation of …

Religious Law Schools: Tension Between Conscience And Academic Freedom, Kent Greenawalt

Journal of Legal Education

No abstract provided.

Aals Symposium On Institutional Pluralism: The Role Of Religiously Affiliated Law Schools, John Garvey

Journal of Legal Education

No abstract provided.

Religiously Affiliated Law Schools, Values, And Professionalism, James D. Gordon Iii

Journal of Legal Education

No abstract provided.

The Added Value And Prerogatives Of Law Schools With A Faith Mission, Bradley J.B. Toben

Journal of Legal Education

No abstract provided.

The Role Of One Religiously Affiliated Law School, Michael Herz

Journal of Legal Education

No abstract provided.

“I’M Dying To Tell You What Happened”: The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Peter Nicolas

In Crawford v. Washington and its progeny, the U.S. Supreme Court has re-theorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are “testimonial” in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote 6 of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. This manuscript builds on the dictum set forth in footnote 6 of Crawford, the meaning of which the lower courts are just beginning to explore. In the manuscript, I first demonstrate that the …

Piercing The Veil: Using Microfinance Initiatives To Promote Female Entrepreneurship In Muslim Countries, Patrick F. Madden

Patrick F. Madden

This paper argues that microfinance initiatives are an attractive aid mechanism to promote gender equality in Muslim countries because such initiatives both alleviate poverty and provide women with economic empowerment without violating Muslim customary banking laws. By promoting female entrepreneurship, microfinance initiatives are, perhaps, the most effective means of achieving the Millennium Development goal of gender equality without upsetting the Islamic governments or the prospective borrowers.

Self-Love And Forgiveness: A Holy Alliance?, Patrick Mckinley Brennan

Working Paper Series

Forgiving is not pardoning, excusing, condoning, forgetting, or reconciling, nor is forgiving just about a change in emotions on the part of a victim. This paper pursues a virtue-theoretic account of the human person in the context of the theology of Thomas Aquinas, arguing that human forgiveness is the form love takes by an offended toward her offender. The paper argues, first, for the priority of the offended person's self-love and, second, for such self-love's extension into love of the offender as another self. The paper explores in depth the challenges of seeing one's enemy as "another self." Forgiving, the …

Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis?, Bruce Ledewitz

Bruce Ledewitz

The crisis in Establishment Clause interpretation consists in the Supreme Court’s unwillingness to enforce the promise of government neutrality toward religion made in Everson in 1947 and its inability to offer an alternative interpretation that would gain majority support among the Justices and the American people. The crisis is symbolized by the Court’s reversal on standing grounds of the Ninth Circuit’s judgment that the words “under God” in the Pledge of Allegiance violate the Establishment Clause, thus “ducking” the case and the principle involved. The government speech doctrine would redeem Everson’s promise of neutrality without imposing a purely secular public …