Tag Archives: Docs: Legal Periodicals

Jed Glickstein, Should the Ministerial Exception Apply to Functions, Not Persons?, 122 Yale L.J. 1964 (2013)

This Note accordingly suggests an alternative framework that more closely tracks the functional considerations that underlie the ministerial exception. In short, it argues that a revised exception—one that applies to ministerial functions, not ministerial persons—better strikes the balance between antidiscrimination values and religious liberty that the First Amendment requires.

Filistrucchi, Lapo and Prufer, Jens, Nonprofits are Not Alike: The Role of Catholic and Protestant Affiliation (April 26, 2013). TILEC Discussion Paper No. 2013-013. Available at SSRN: http://ssrn.com/abstract=2259051 or http://dx.doi.org/10.2139/ssrn.2259051

Cassell, Paul G., Marsh, James and Christiansen, Jeremy M., The Case for Full Restitution for Child Pornography Victims (2013). George Washington Law Review, Forthcoming; University of Utah College of Law Research Paper. Available at SSRN: http://ssrn.com/abstract=2260479

McConnell, Michael W., In Defense of Citizens United (March 29, 2013). Yale Law Journal, Vol. 123, No. 2013. Available at SSRN: http://ssrn.com/abstract=2241682

Brett Harvey and Joel Oster at the Federalist Society: Tension between the Supreme Court’s holding in Marsh and the dictum in Allegheny has created confusion in the lower courts regarding the proper standard(s) to use when evaluating legislative prayer practices. Central to the confusion is the government’s role in regulating the content of legislative prayers. For courts that apply the endorsement test to the context surrounding a legislative prayer practice, distinguishing between private expression and government expression is critical to the viability of the practice. For courts that apply a historical analysis, as in Marsh, the content of the prayer does not define the analysis absent evidence of government exploitation, irrespective of its classification as government or private expression. The First Amendment is a shield against a government-imposed civil orthodoxy. Legislative prayer is a historic tradition practiced across the country at every level of government. The circuits are irreconcilably conflicted about the application of fundamental, constitutional principles. The current disputes provide the Supreme Court with an opportunity to resolve these conflicts and provide clarity to the law.

Andrew J. Hull, Complete or Partial Accommodation: An Analysis of the Federal Circuit Split Over the Duty of the Employer to Reasonably Accommodate the Religious Beliefs of the Employee, (Regent University Law Review, Vol. 25, No. 1, 2012).

Glickstein, Jed, Should the Ministerial Exception Apply to Functions, Not Persons? (April 1, 2013). Yale Law Journal, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2242966

SCOTUS Blog: Although some commentators have written about the pedagogical goals and benefits of such clinics, no one yet has written about their public interest mission. This Article takes up that task. It begins by empirically testing, for the first time in modern literature, the clinics’ foundational assumption: that litigants in the Court who are represented by inexperienced (and often under-resourced) counsel instead of Supreme Court specialists are generally at a distinct disadvantage.

Rienzi, Mark, God and the Profits: Is There Religious Liberty for Money-Makers? (March 7, 2013). Available at SSRN: http://ssrn.com/abstract=

Witte, John and Nichols, Joel A., Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions (2013). Faulkner Law Review (Forthcoming 2013); U of St. Thomas Legal Studies Research Paper No. 13-05. Available at SSRN: http://ssrn.com/abstract=2227114

Mario H. Lopez at Human Life Review: But a lesser-known story is that over the last 40 years in the United States, many leaders of this movement have hijacked concerns over immigration to advance their agenda. Population-control advocates have built, operated, and funded much of the anti-immigration movement in the United States. What follows helps explain how this has happened and sheds light on the pervasive connections between the population- control movement and the principal proponents of immigration restrictions.

Abstract. It is generally assumed that the Constitution requires the Senate to vote to
confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary,
that when the President nominates an individual to a principal executive branch position, the
Senate’s failure to act on the nomination within a reasonable period of time can and should be
construed as providing the Senate’s tacit or implied advice and consent to the appointment. On
this understanding, although the Senate can always withhold its constitutionally required
consent by voting against a nominee, the Senate cannot withhold its consent indefinitely
through the expedient of failing to vote on the nominee one way or the other. Although this
proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues
that this reading of the Appointments Clause would not contravene the constitutional text,
structure, or history. The Essay further argues that, at least under some circumstances, reading
the Constitution to construe Senate inaction as implied consent to an appointment would have
desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action
on presidential nominations.

Daily Writ: I have a new Article out in the Journal of Legal Metrics entitled Top Supreme Court Advocates of the Twenty First Century. You can download the article here here. This Article identifies the Supreme Court litigators who have argued at least five times since October 2000, making them — by some measures — “expert Supreme Court litigators.”

Fisher, Jeffrey L., A Supreme Court Clinic’s Place in the Supreme Court Bar (February 29, 2012). Stanford Law Review, Vol. 65, 2012 ; Stanford Public Law Working Paper No. 1921430 . Available at SSRN: http://ssrn.com/abstract=1921430 or http://dx.doi.org/10.2139/ssrn.1921430

The First Amendment’s protection of freedom of speech applies to the states through its incorporation into the due process clause of the Fourteenth Amendment. Students in schools retain First Amendment rights; however, school officials, acting as parens patriae, have latitude to discipline students for their speech in some instances. This analysis will focus on the First Amendment rights of students, with particular emphasis on off-campus speech. Part one will discuss the Supreme Court precedent on the issue of student speech on and off the school campus. Part II will analyze the inconsistencies among the lower courts when addressing student speech cases. Part III will summarize the current state of student speech litigation, and Part IV will examine the New York City Department of Education’s policies related to student speech.

Eugene Kontorovich at the Volokh Conspiracy: The Bestiality Brief “The man-bites-dog story of Germany legalizing then banning bestiality raises the question of the constitutionality of such laws in the U.S. Most states criminalize zoophilia, and in many places the bans …

Joslin, Courtney G., Marriage, Biology, and Federal Benefits (November 27, 2012). Iowa Law Review, Forthcoming; UC Davis Legal Studies Research Paper No. 315. Available at SSRN: http://ssrn.com/abstract=2181517

Cafardi, Nicholas P., Saving the Preachers: The Tax Code’s Prohibition on Church Electioneering (2012). Duquesne University Law Review, Vol. 50, p. 503, 2012; Duquesne University School of Law Research Paper No. 2012-16. Available at SSRN: http://ssrn.com/abstract=2181557

Edward Whelan, The HHS Contraception Mandate vs. The Religious Freedom Restoration Act, 87 Notre Dame Law Review 2179-2190 (2012). Online at: http://www.nd.edu/~ndlrev/archive_public/87ndlr5/whelan.pdf

There are thus four questions involved in determining whether the HHS mandate violates RFRA: (1) Does a person engage in an “exercise of religion” when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients?; (2) Does the HHS mandate “substantially burden” such exercise of religion?; (3) Does application of the burden to the person further a “compelling governmental interest”?; (4) Is application of the burden to the person the “least restrictive means” of furthering a compelling governmental interest?

Garnett, Nicole Stelle, Are Charters Enough Choice? School Choice and the Future of Catholic Schools (January 19, 2012). Notre Dame Law Review, 2012; Notre Dame Legal Studies Paper No. 12-50. Available at SSRN: http://ssrn.com/abstract=1988467

This contribution to a Notre Dame Law Review symposium on “Law and Educational Innovation” critiques the oft-repeated assertion that private-school-choice programs, such as tuition vouchers or tax credits, are unnecessary because charter schools provide sufficient educational choices. Arguing that policy makers have failed to come to terms with the profound, unfortunate consequences of Catholic schools’ rapid disappearance from urban neighborhoods, the essay builds a case for a shift in education policy that embraces both charter schools and private-school-choice mechanisms.

Here.

Bickers, John M., Standing on Holy Ground: How Rethinking Justiciability Might Bring Peace to the Establishment Clause (February 28, 2012). Available at SSRN: http://ssrn.com/abstract=2012756 or http://dx.doi.org/10.2139/ssrn.2012756

Fournier, Pascale and See, Erica, The ‘Naked Face’ of Secular Exclusion: Bill 94 and the Privatization of Belief (2012). Windsor Yearbook of Access to Justice, Vol. 30, No. 1, 2012. Available at SSRN: http://ssrn.com/abstract=2165853

Wilson, Robin Fretwell, The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State (October 2, 2012). Boston College Law Review, Vol. 53, p. 1417, 2012; Washington & Lee Legal Studies Paper No. 2012-31. Available at SSRN: http://ssrn.com/abstract=2155867

Koltay, András, Europe and the Sign of the Crucifix: On the Fundamental Questions of the Lautsi and Others v. Italy Case (January 15, 2012). Available at SSRN: http://ssrn.com/abstract=2154565

We cannot say that the questions raised by the presence in society of Christianity or religion in general have been resolved with satisfaction. At the social level, a satisfactory answer cannot be expected in these turbulent times following the twentieth century. There would be a lot to discuss about the current situation and future role of Christianity and the Churches, but we cannot get to this point yet. We can be grateful to Mrs. Lautsi, however, because she provided the opportunity to begin the debate.

Haskell, John D. , Divine Immanence: The Evangelical Foundations of Modern Anglo-American Approaches to International Law (September 1, 2012). 11:3 Chinese Journal of International Law 429 (2012). Available at SSRN: http://ssrn.com/abstract=2155199

Gedicks, Frederick Mark, Ironies of Hosanna-Tabor (September 30, 2012). Mercer Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2154528

Esbeck, Carl H., Religion During the American Revolution and the Early Republic (September 30, 2012). Silvio Ferrari, ed., LAW & RELIGION (Ashgate Publishing Co., U.K., 2013); University of Missouri School of Law Legal Studies Research Paper No. 2012-30. Available at SSRN: http://ssrn.com/abstract=2154443

Hamilton, Andrew R., The New York Marriage Equality Act and the Strength of Its Religious Exceptions (2012). St. John’s Law Review, Journal of Catholic Legal Studies, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2156988

In the absence of perfect information about how RLUIPA has affected local governments, this article argues that the courts have adopted a pragmatic approach to maneuvering in the difficult terrain that RLUIPA occupies: combining appropriate judicial deference to a legislature that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same law is applied to a specific zoning approval, a circumstance that frequently allows for subjectivity, and thus the potential for discrimination or arbitrariness against religious uses, in the approval process. I conclude that: (1) until proven otherwise, the costs RLUIPA undoubtedly imposes on local governments is the price to be paid for insuring against the discriminatory or arbitrary application of land use regulations and (2) RLUIPA does not seek to establish an unconstitutional preference for religious uses, but rather a proper accommodation of religious exercise in the land use context.

Schragger, Richard and Schwartzman, Micah, Against Religious Institutionalism (September 25, 2012). Virginia Law Review, Forthcoming 2013; Virginia Public Law and Legal Theory Research Paper No. 2012-62. Available at SSRN: http://ssrn.com/abstract=2152060

Ross Astoria. 2011. “Why Do Citizens Litigate Over the Posting of the Ten Commandments? A Case Study from Tennessee”
Available at: http://works.bepress.com/ross_astoria/2

Mauro Gatti, Autonomy of Religious Organisations in the European Convention of Human Rights and European Union Law, (Paper presented at the Conference ‘Fundamental Rights in Europe and China: Between Identities and Universalism’, Bologna, 28-29 May 2012).

Lisa Shaw Roy, The Evangelical Footprint, 2011 Michigan State Law Review 1235-1291.

Funding for evangelical advocacy received a boost with the formation of the Alliance Defense Fund (ADF) in 1994. Prominent movement leaders, such as James Dobson of Focus on the Family and Bill Bright of Campus Crusade for Christ, formed ADF to fund litigation and to coordinate the efforts of Christian litigation firms.

ADF has been responsible for providing funding in several high profile cases, including Rosenberger, decided by the U.S. Supreme Court. ADF also sponsors litigation firms with overlapping interests, such as the Christian Law Association, Pacific Justice Institute, the Home School Legal Defense Fund, and the Foundation for Individual Rights in Education, to name a few. While ADF began solely as an umbrella organization to provide funds to individual lawyers and law firms, ADF now also takes its own cases.

Though its success as a funding organization seems apparent given, for example, the number of Supreme Court amicus curiae briefs that disclose ADF support, some opine that its success in coordinating evangelical litigation efforts has been mixed.

Berg, Thomas C., Can State-Sponsored Religious Symbols Promote Religious Liberty? (August 25, 2012). Journal of Catholic Legal Studies, 2013; U of St. Thomas Legal Studies Research Paper No. 12-25. Available at SSRN: http://ssrn.com/abstract=2144460

Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harvard Journal of Law & Public Policy 821-837 (2012).

Douglas Laycock, Hosanna-Tabor and the Ministerial Exception, 35 Harvard Journal of Law & Public Policy 839-862 (2012).

Justin Butterfield, Hiram Sasser and Reed Smith, The Parsonage Exemption Deserves Broad Protection, 16 Texas Review of Law & Politics 251-273 (2012).

Eugene Volokh at the Volokh Conspiracy: From yesterday’s Opinion Juris post by Prof. Peter Spiro, one of the leading international law scholars in the country . . . As the regime of international human rights grows thick, however, that justification should no …