Constitutional Law Commons^™

Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett

Faculty Workshops

Professor Richard Garnett, of University of Notre Dame Law School, presented on the topic Law, Religion, and Politics: Understanding the Separation of Church and State. This workshop was presented as part of the Hesburgh Lecture Series through the Alumni & Friends of University of Notre Dame and was co-sponsored by the Notre Dame Alumni Club of Miami. This workshop examined how to understand the Constitution's "separation of church and state" and what it requires of religious believers and institutions.

Hamed V. Military Commander In The West Bank, Miriam Naor, Hanan Melcer, Noam Sohlberg

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Petitions against the forfeiture and demolition orders that were issued for the homes of Palestinians who are suspected of perpetrating murderous attacks, pursuant to the authority of the Commander of the IDF Forces in the Judea and Samaria area under Regulation 119 of the Defence (Emergency) Regulations.

The High Court of Justice (per President M. Naor, Justices H. Melcer and N. Sohlberg concurring) …

Hashavim H.P.S. Business Information, Ltd. V. The Courts' Administration, Elyakim Rubinstein, Esther Hayut, Uzi Vogelman

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

This case concerned a petition challenging the decision of the Courts Administration (the Respondent) making access to its judgment database contingent upon signing a “guarantee” that comprised, inter alia, a prohibition upon indexing the information in a manner that would allow it to be found through web search engines such as Google and Bing. The Petitioner is a commercial company whose primary activity is …

November 8, 2015: What Is Wrong With Whites?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is Wrong with Whites?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Accountability And The Foreign Commerce Power: A Case Study Of The Regulation Of Exports, Richard R. Carlson

Georgia Journal of International & Comparative Law

No abstract provided.

November 3, 2015: Title: Ross Douthat’S Mistakeross Douthat’S Mistake, Bruce Ledewitz

Hallowed Secularism

Blog post, “Ross Douthat’s Mistake“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Evading Miller, Robert S. Chang, David A. Perez, Luke M. Rona, Christopher M. Schafbuch

Seattle University Law Review

Miller v. Alabama appeared to strengthen constitutional protections for juvenile sentencing that the United States Supreme Court recognized in Roper v. Simmons and Graham v. Florida. In Roper, the Court held that executing a person for a crime committed as a juvenile is unconstitutional under the Eighth Amendment. In Graham, the Court held that sentencing a person to life without parole for a nonhomicide offense committed as a juvenile is unconstitutional under the Eighth Amendment. In Miller, the Court held that a mandatory sentence of life without parole for a homicide offense committed by a juvenile is also unconstitutional under …

The Oedipus Hex: Regulating Family After Marriage Equality, Courtney Megan Cahill

Scholarly Publications

Now that national marriage equality for same-sex couples has become the law of the land, commentators are turning their attention from the relationships into which some gays and lesbians enter to the mechanisms on which they — and many others — rely in order to reproduce. Even as one culture war makes way for another, however, there is something that binds them: a desire to establish the family. This Article focuses on a problematic manifestation of that desire: the incest prevention justification. The incest prevention justification posits that the law ought to regulate alternative reproduction in order to minimize the …

A Benign Prior Restraint Rule For Public School Classroom Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article is a contribution to a symposium on schools and free speech. It advances the claim that the First Amendment doctrines that apply to the classroom should adopt a benign prior restraint rule. In the case of teacher classroom speech, the Garcetti rule should apply where the government’s action in interfering with the speech constitutes a prior restraint—the First Amendment should not reach such interference. In cases where a teacher first speaks and then is later punished for that speech, however, basic notions of due process and the dangers of arbitrary governmental decision making are far more pressing, and …

Fourth Amendment Fiduciaries, Kiel Brennan-Marquez

Fordham Law Review

    Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor’s concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties—the foundation of the widely reviled “third-party doctrine”—makes little sense in the digital age.

    In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment’s general approach to the problem of “shared information.” Under existing law, if A shares information with B, A runs the risk of “misplaced trust”—the risk that B will disclose the information to law …

Religion And Social Coherentism, Nelson Tebbe

Cornell Law Faculty Publications

Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares …

Interpreting Liberty And Equality Through The Lens Of Marriage, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the moral worthiness of same-sex couples who wish to marry provides the ultimate justification for recognizing a constitutional right. The conceptual fulcrum in this analysis is dignity, which other courts have interpreted as an intrinsic human right that extends to a pluralism of family forms, but …

Justice At War: Military Tribunals And Article Iii, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Magna Carta Then And Now, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

What’s the significance and relevance of Magna Carta, an 800-year-old handwritten sheepskin parchment currently on a world tour that has been to New York City, Luxembourg, China (Beijing, Guangzhou, and Shanghai), Hong Kong, and now Singapore?

Magna Carta Then And Now: A Symbol Of Freedom And Equal Rights For All, Eugene K. B. Tan, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

Magna Carta became applicable to Singapore in 1826 when a court system administering English law was established in the Straits Settlements. This remained the case through Singapore’s evolution from Crown colony to independent republic. The Great Charter only ceased to apply in 1993, when Parliament enacted the Application of English Law Act to clarify which colonial laws were still part of Singapore law. Nonetheless, Magna Carta’s legacy in Singapore continues in a number of ways. Principles such as due process of law and the supremacy of law are cornerstones of the rule of law, vital to the success, stability and …

High Value Lies, Ugly Truths, And The First Amendment, Alan K. Chen, Justin Marceau

Vanderbilt Law Review

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies-such as perjury and fraud-are simply not covered by the Constitution's free speech clause.' But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. Until very recently, however, it has been taken for granted in Supreme Court doctrine and academic writing that any constitutional protection for lies is purely prophylactic-it provides protection to the truth-speaker by also incidentally protecting the liar. What remains unresolved is whether other rationales might also justify First Amendment protection for …

The Particulate Constitution: Uncertainty And New Originalism, Elise Carter

BYU Law Review

No abstract provided.

October 29, 2015: So, It's Not Going To Be Trump (Or Carson), Bruce Ledewitz

Hallowed Secularism

Blog post, “So, It's Not Going to be Trump (or Carson)“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan

Nevada Supreme Court Summaries

For the State Engineer to grant water rights applications, there must be evidence to support the decision and the new rights must not substantially conflict with existing rights. On appeal from the District Court, the Court found no evidence to support the granted application, and held the use of Respondent’s rights would severely impact the water table. The Court reversed and remanded the case for proceedings consistent with the opinion.

Homosexuality In High School: Recognizing A Student's Right To Privacy, Bari Nadworny

St. John's Law Review

(Excerpt)

This Note argues that high school officials disclosing information about a student's sexual orientation without the student's permission is a violation of the student's constitutional right to informational privacy. Part I examines the Supreme Court's informational privacy jurisprudence. This Part also examines the circuit court opinions that have contributed to the law in this area regarding personal sexual matters. Part II examines the current split of authority between the Third Circuit Court of Appeals, which has held that such a privacy right exists, and the Fifth Circuit Court of Appeals, which has held that it does not. Part III …