Tag Archives: Topic: Legal Periodicals

Manuel Possolo, Morals Legislation After Lawrence: Can States Criminalize The Sale Of Sexual Devices?, 65 Stanford L. Rev. 565

Randy Barnett at the Volokh Conspiracy: I just posted to SSRN a new paper of mine, The Gravitational Force of Originalism, that I will be presenting next week at the Fordham conference on “The New Originalism and Constitutional Law.” Here is the abstract . . .

SCOTUS Blog: From this wide range of viewpoints, two persistent and related themes have emerged: Supreme Court recusal is a matter of judicial ethics, and Congress should seek to protect the integrity and legitimacy of the Court by more closely regulating the Justices’ recusal practices.

Short, Donn, Queering Schools, GSAs and the Law: Taking on God (November 6, 2012). Donn Short, ‘Queering Schools and GSAs: Taking On God’ in Gerald Walton, ed, The Gay Agenda: Claiming Space, Identity & Justice (New York: Peter Lang, 2013). Available at SSRN: http://ssrn.com/abstract=2198683

Religion Clause Blog: The AALS Section on Law and Religion has just issued its Dec. 2012 Newsletter . . .

John G. Browning at Inside Higher Ed: The Harvard Law Review, arguably the most prestigious and widely circulated law review, had a circulation of 10,895 in 1963–1964. By the 2010–2011 academic year, that figure had plummeted to 1,896.

Stanley W. Carlson-Thies, Which Religious Organizations Count as Religious? The Religious Employer Exemption of the Health Insurance Law’s Contraceptives Mandate, Engage Volume 13, Issue 2, July 2012.

Eugene Volokh at the Volokh Conspiracy: I have argued that such “hostile public accommodations environment” theories violate the First Amendment even when patrons claim that a business’s decor inside the business is offensive based on race, religion, sex, sexual orientation, and so on. (See also Daniel Koontz,Hostile Public Accommodations Laws and the First Amendment, 3 NYU J. Law & Liberty 197 (2008).

Lollar, Cortney, Child Pornography and the Restitution Revolution (August 3, 2012). Journal of Criminal Law and Criminology, 2013; Washington University in St. Louis Legal Studies Research Paper No. 12-08-02. Available at SSRN: http://ssrn.com/abstract=2123527

SCOTUS Blog: Professor Ernest Young, an expert on preemption, has just published an article analyzing the Roberts Court’s preemption jurisprudence in The Supreme Court Review, in which he concludes that the “Roberts Court’s record to date strongly suggests . . . that preemption will be an important part of its doctrinal legacy.”

Petro, Nicolai N., The Role of the Orthodox Church in a Changing Russia (2012). ISPI Analysis #121 (Institute for the Study of International Politics, Milan, Italy), June 2012. Available at SSRN: http://ssrn.com/abstract=2094490

James M. Anderson & Eric Helland, How Much Should Judges Be Paid? An Empirical Study On The Effect Of Judicial Pay On The State Bench, 64 Stanford L. Rev. 1277 (2012) How much should judges be paid? We first survey …

The CLS Christian Lawyer carries this article by Richard F. Duncan. He writes: The everexpanding reach of government in secular America poses a grave threat to Christians and other religious groups.

Eugene Volokh at the Volokh Conspiracy: See Caroline Mala Corbin, Expanding the Bob Jones Compromise, in Matters of Faith: Religious Experiences and Legal Responses in the United States (forthcoming, Cambridge University Press). This isn’t the first such call, but it still struck me as noteworthy.

Boston Globe: Everyone knows that Google is changing the way college kids write their term papers. What’s less obvious is that it’s also changing the way that judges write their opinions — even America’s most august judges, those on the Supreme Court. In an absolutely fascinating article in the Virginia Law Review, “Confronting Supreme Court Fact Finding,” Allison Orr Larsen, a law professor at William & Mary, shows just how prevalent online research is at the Supreme Court.

Volokh Conspiracy: The Michigan Law Review has just published an article by myself and Michelle Pearse updating my 1985 study of “The Most-Cited Law Review Articles” (73 California Law Review 1540) . . . The highlights of the Michigan Law Review article are tables of the 100 most-cited legal articles of all time and the 100 most-cited articles of the last twenty years (actually the top 5 most-cited articles published each of the years from 1990 to 2009) . . .

Zelinsky, Edward A., Do Religious Tax Exemptions Entangle in Violation of the Establishment Clause? The Constitutionality of the Parsonage Allowance Exclusion and the Religious Exemptions of the Individual Health Care Mandate and the Fica and Self-Employment Taxes (March 19, 2012). Cardozo Legal Studies Research Paper No. 362. Available at SSRN: http://ssrn.com/abstract=2012132

U. of Virginia Law School: Though many critics have pegged the U.S. Supreme Court’s First Amendment doctrine as incoherent, the court’s opinions have long shown a definable pattern, argues University of Virginia law professor Leslie Kendrick in her latest article.
In “Content Discrimination Revisited,” published in the April 2012 issue of the Virginia Law Review, Kendrick explains that the court’s system for evaluating whether speech is legal under the First Amendment resembles its test for whether a law is discriminatory under the 14th Amendment’s equal protection clause.

Waldron, Jeremy, What is Natural Law Like? (May 17, 2012). Available at SSRN: http://ssrn.com/abstract=2061672

David E. Steinberg, The Myth of Church-State Separation, 59 Cleveland State Law Review 623-644 (2011), Available at: http://works.bepress.com/david_steinberg/1 The Myth Of Church-State Separation by David E. Steinberg Abstract This article asserts that the church-state separation interpretation of Establishment Clause history is simply …

Holzer, Erica A., DoMA Statutes and Same-Sex Divorce Litigation (March 5, 2012). Available at SSRN: http://ssrn.com/abstract=2060603 or http://dx.doi.org/10.2139/ssrn.2060603

Paulsen, Michael Stokes, The Priority of God (a Theory of Religious Liberty) (2012). Pepperdine Law Review, 2012, Forthcoming; U of St. Thomas Legal Studies Research Paper No. 12-15. Available at SSRN: http://ssrn.com/abstract=2061162

Hunter, Nan D., Animus Thick and Thin: The Broader Impact of the Ninth Circuit Decision in Perry v. Brown (March 19, 2012). Stanford Law Review Online, Vol. 64, pp. 111-116, 2012; Georgetown Public Law Research Paper No. 12-063. Available at SSRN: http://ssrn.com/abstract=2056396

Mary Alexander Myers, Standing on the Edge: Standing Doctrine and the Injury Requirement at the Borders of Establishment Clause Jurisprudence, 65 Vand. L. Rev. 979 (2012).

David Schwartz & Lee Petherbridge at the Cornell Law Review(2/22/2012): The study produces three important results. First, the data collected support the interpretation that the use of legal scholarship by the U.S. circuit courts of appeals has not declined. Rather, the use of legal scholarship by such courts has increased. Taken together, the data gathered in this study call into serious question the conventional wisdom that courts have little use for legal scholarship. Second, the study provides evidence that a relatively small cohort of judges is responsible for the overwhelming majority of citations. Third, this study develops statistical arguments about which factors influence a court’s decision to cite legal scholarship.

Holland, Mary S., Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children (February 28, 2012). Yale Journal of Health Policy, Law, and Ethics, Vol. 12, No. 1, p. 39, 2012; NYU School of Law, Public …

West, Robin L., A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown (2012). Harvard Law Review Forum, Vol. 125, pp. 47-53, 2012; Georgetown Public Law Research Paper No. 12-027. Available at SSRN: http://ssrn.com/abstract=2020293

Weitzel, Paul D., Protecting Speech From the Heart: How Citizens United Strikes Down Political Speech Restrictions on Churches and Charities (May 20, 2011). Texas Review of Law & Politics, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1848267

Esbeck, Carl H., A Religious Organization’s Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment (March 6, 2012). Engage, Forthcoming 2012; University of Missouri School of Law Legal Studies Research Paper No. 2012-02. Available at SSRN: http://ssrn.com/abstract=2016930

Sara Lunsford Kohen. 2011. “Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties” ExpressO Available at: http://works.bepress.com/sara_kohen/3

Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties, for publication discusses when courts should apply the Religious Freedom Restoration Act (“RFRA”) in cases in which the federal government is not a party. Congress passed RFRA in reaction to the Supreme Court’s decision in Employment Division v. Smith.

Duncan, Richard F., By the Waters of Babylon: Christian Libertarianism in the Age of Obama (February 23, 2012). Available at SSRN: http://ssrn.com/abstract=2010131

Concurring Opinions: The Stanford Law Review Online has just published an Essay by Yale’s William N. Eskridge Jr. entitled The Ninth Circuit’sPerry Decision and the Constitutional Politics of Marriage Equality. Eskridge provides an accessible summary of the opinion and defends the judgment against detractors who claim it went too far—or didn’t go far enough

Crouch, Melissa, Indonesia’s Blasphemy Law: Bleak Outlook for Minority Religions (January 26, 2012). Asia Pacific Bulletin (East-West Center), No. 146. Available at SSRN: http://ssrn.com/abstract=1995154 This brief article discusses Indonesia’s 2010 Constitutional Court ‘Blasphemy Law’ ruling, which leaves so-called ‘deviant’ groups …

Duncan, Richard F., The Tea Party’s Constitution (January 13, 2012). Available at SSRN:
http://ssrn.com/abstract=1984699

George W. Dent, Perry v. Schwarzenegger: Is Traditional Marriage Unconstitutional?, 12 Engage (J. of Fed-Soc. Practice Groups) (Nov. 2011)

Weddle, Dan and New, Kathryn E., What Did Jesus Do?: Answering Religious Conservatives Who Oppose Bullying Prevention Legislation (October 18, 2011). New England Journal on Criminal and Civil Confinement, Vol. 37, p. 325, 2011. Available at SSRN: http://ssrn.com/abstract=1945737

Online here.

Jeffrey A. Brauch, Faith-Based Law Schools and an Apprenticeship in Professional Identity, U. of Toledo L. Rev. at 593 (Spring 2011)

This short essay discusses professional identity in two ways. First, it addresses Carnegie’s diagnosis of law schools’ failure to effectively train students in professional identity and why that failure matters. Second, it describes how faith-based law schools are uniquely poised to provide a professional identity apprenticeship. In particular, it discusses how Regent University School of Law is accomplishing exactly what Carnegie proposed.

NeJaime, Douglas, Marriage Inequality: Religious Exemptions and the Production of Sexual Orientation Discrimination (December 7, 2011). California Law Review, Forthcoming; Loyola-LA Legal Studies Paper No. 2011-46. Available at SSRN: http://ssrn.com/abstract=1969560

As more states consider marriage recognition for same-sex couples, attention turns to the conflict between marriage equality and religious liberty. Legal scholars are contributing substantially to the debate, generating a robust academic literature and writing directly to state lawmakers urging them to include a “marriage conscience protection,” containing a series of religious exemptions, in marriage legislation. Yet the intense scrutiny of religious freedom specifically in the context of same-sex marriage obscures the root of the conflict. At stake is the relational enactment of sexual orientation; same-sex relationships constitute lesbian and gay identity, and religious objections arise largely in response to such relationships. Same-sex marriage is merely one form of sexual orientation identity enactment, and religious objections to same-sex marriage are merely a subset of objections to sexual orientation equality. By exposing the connections between same-sex relationships and lesbian and gay identity, this Article argues for an antidiscrimination regime that includes same-sex relationships more comprehensively; in doing so, it resists the use of marriage as antidiscrimination, both for same-sex couples and religious objectors. Yet even as the “marriage conscience protection” proposed by religious liberty scholars misapprehends the basis of the underlying conflict, its sweeping language threatens to reach into the antidiscrimination domain and target lesbians and gay men based not primarily on their marriages but instead more generally on their same-sex relationships. By permitting religious organizations, as well as some employers, property owners, and small businesses, to discriminate against same-sex couples throughout the course of the couples’ married lives in situations far removed from marriage itself, the “marriage conscience protection” may have unintended consequences that would threaten substantial progress made in antidiscrimination law. Worse yet, using the term “marriage conscience protection” to label instances of discrimination against same-sex relationships would hide an increasing amount of sexual orientation discrimination that antidiscrimination law is just beginning to address.

WorldNetDaily: The battle lines over homeschooling rights overseas and in the United States have been sharpened by the publication of a law journal article that concludes that Germany does persecute homeschoolers and that the first waves of its impact already have hit the U.S. The article, “Germany Homeschoolers as ‘Particular Society Group’: Evaluation Under Current U.S. Asylum Jurisprudence,” was written by Miki Kawashima Matrician and published recently in the 2011 Boston College International and Comparative Law Review.

(abstract only below)

Juan Marco Vaggione, Sexual Rights and religion: Same-sex Marriage and Lawmakers’ Catholic Identity in Argentina, 65 University of Miami Law Review 935-954 (2011).

The legal regulation of marriage in Argentina has undergone reforms that, in a variety of ways, have dismantled religion’s influence over law. While these reforms reaffirm the centrality of marriage in the construction of the sexual order, they also redefine marriage, distancing it from the sacrament defended by the Catholic Church. In 1888, civil and religious marriages were distinguished from one another as part of a reform process in response to late-century secularist and liberal ideologies. 1 Church and State became, at least legally, autonomous with respect to marriage; while the latter regulated the civil contract, the Church only concerned itself with the celebration of the religious sacrament. However, the legal construction of marriage was, of course, substantiated by the religious doctrine. Almost a century later, in 1987, 2 the related Divorce Law was passed, 3 made possible largely by the recent restoration of democracy and the influence of women’s movements in the region. 4 The law distanced itself from religious sacrament by establishing the solubility of the bond as a constitutive part of the institution of marriage. Finally, in 2010, a new reform took place through which marriage was authorized between same-sex couples, 5 arising from a demand primarily promoted by the movement for sexual diversity. This reform broke from the principle of Catholic doctrine that the sexes are complementary and generated complete equality in marriage between partners of the same or opposite sexes.

Teresa Collett at University Faculty for Life: SRN has a new article entitled The Jurisprudence of Dignity (http://ssrn.com/abstract=1928768). The author, Leslie Meltzer Henry, identifies the variety of meanings given to the word “dignity” in Supreme Court cases: institutional status as dignity, liberty as dignity, equality as dignity, personal integrity as dignity, and collective virtue as dignity.

Teresa Collett at University Faculty for Life: Earlier this year I posted a link to an editorial arguing that fathers should have a right to veto the abortion of their children . . . I expressed the view that while it is possible that the Court would reverse its opinion on notification of husbands, but I saw very little prospect of success for a consent requirement. SSRN has a new article, Fathers and Abortion, by Ezio Di Nucci . . .

Religion Clause: Recent Articles of Interest: Gregory S. Baylor and Ronald Chen, Did the Supreme Court Properly Decide Christian Legal Society v. Martinez?

Noda, Tokufumi Joshua, The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use (September 14, 2011). Boston College Law Review, Vol.1, 2011. Available at SSRN: http://ssrn.com/abstract=1927649

Virelli, Louis J., The Unconstitutionality of Supreme Court Recusal Standards (September 1, 2011). Stetson University College of Law Research Paper No. 2011-12. Available at SSRN: http://ssrn.com/abstract=1920826

Gedicks, Frederick Mark, Lynch v. Donnelly and the Terminal Silliness of Secularized Religious Symbols (September 5, 2011). Nevada Law Review, 2011. Available at SSRN: http://ssrn.com/abstract=1922802

Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepperdine Law Review 945-1020 (2011)

Law, David S. and Versteeg, Mila, The Declining Influence of the United States Constitution (September 6, 2011). Washington University in St. Louis Legal Studies Research Paper, Forthcoming; Virginia Public Law and Legal Theory Research Paper, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1923556

Sanders, Steve, The Constitutional Right to (Keep Your) Same-sex Marriage: Why the Due Process Clause Protects Marriages that Cross State Lines, Even if Conflict of Laws Cannot (August 24, 2011). Available at SSRN: http://ssrn.com/abstract=1903386

Rhodes, Charles W. (Rocky), Navigating the Path of the Supreme Appointment (July 20, 2011). Florida State University Law Review, Vol. 38, No. 3, 2011. Available at SSRN: http://ssrn.com/abstract=1890734 Nominees to the Supreme Court historically boasted political backgrounds as congressmen, governors, …

Sossin, Lorne, The Sounds of Silence: Law Clerks, Policy-Making and the Supreme Court of Canada (1996). U.B.C. Law Review, Vol. 30, pp. 279-308, 1996. Available at SSRN: http://ssrn.com/abstract=1911416 It is no longer controversial to refer to the Supreme Court of …

Stith, Richard T., Anti-Choice: When Having a Choice Dminishes Family Solidarity (August 18, 2011). International Journal of the Jurisprudence of the Family, Forthcoming; Valparaiso University Legal Studies Research Paper No. 11-12. Available at SSRN: http://ssrn.com/abstract=1911917

Waldron, Jeremy, What are Moral Absolutes Like? (August 8, 2011). Available at SSRN: http://ssrn.com/abstract=1906850

Rautenbach, Christa, Comments on the Constitutional Protection of Religion in Swaziland (August 10, 2008). African Human Rights Journal, Vol. 8, pp. 432-457, 2008. Available at SSRN: http://ssrn.com/abstract=1907666

Symposium Twenty Years After Employment Division v. Smith: Assessing the Twentieth Century’s Landmark Case On The Free Exercise of Religion And How It Changed History, 32 Cardozo L. Rev. (July 2011)

Cox, Barbara J., Why Appellate Courts Have Rejected the Argument that the Defense of Marriage Act Trumps the Parental Kidnapping Prevention Act (January 15, 2011). California Western International Law Journal, Vol. 41, No. 189, 2010. Available at SSRN: http://ssrn.com/abstract=1903922

Petherbridge, Lee and Schwartz, David L., An Empirical Assessment of the Supreme Court’s Use of Legal Scholarship (July 12, 2011). Available at SSRN: http://ssrn.com/abstract=1884462

Kerr, Orin S., How to Read a Legal Opinion: A Guide for New Law Students. The GREEN BAG, An Entertaining Journal of Law, Vol 11, No. 1, p. 51, Autumn 2007; GWU Legal Studies Research Paper No. 414; GWU Law School Public Law Research Paper No. 414. Available at SSRN: http://ssrn.com/abstract=1160925

Thomas M. Clark, The Problems of Perry: Exposing the Flaws of Its Assault on Traditional Marriage, Human Life Rev. (Winter/Spring 2011)

Garnett, Richard W., The Political (and Other) Safeguards of Religious Freedom (July 6, 2011). Cardozo Law Review, Vol. 32, p. 1815, 2011 ; Notre Dame Legal Studies Paper No. 11-23. Available at SSRN: http://ssrn.com/abstract=1880084

Strasser, Mark, Equal Protection, Same-Sex Marriage, and Classifying on the Basis of Sex (January 6, 2011). Pepperdine Law Review, Vol. 38, pp. 1021-1052, 2011. Available at SSRN: http://ssrn.com/abstract=1735989

Tarasen, Nick, Untangling the Knot: Finding a Forum for Same-Sex Divorces in the State of Celebration (2011). University of Chicago Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1872963

Singh, Narendra Vikram, Patenting of the Stem Cell and Ethical Issue Involved (December 2, 2008). Available at SSRN: http://ssrn.com/abstract=1857432

Strasser, Mark, Same-Sex Marriage and the Right to Privacy (June, 24 2011). Journal of Law & Family Studies, Vol. 13, pp. 117-150, 2011. Available at SSRN: http://ssrn.com/abstract=1872031

Weinrib, Sara, An Exemption for Sincere Believers: The Challenge of Alberta versus Hutterian Brethren of Wilson Colony (2011). McGill Law Journal, Vol. 56, No. 3, pp. 719-750, 2011. Available at SSRN: http://ssrn.com/abstract=1874224

Bilchitz, David, Should Religious Associations Be Entitled to Discriminate? (June 10, 2011). South African Journal of Human Rights, Vol. 2, 2011. Available at SSRN: http://ssrn.com/abstract=1874683

Kislowicz, Howard, Haigh, Richard and Ng, Adrienne, Calculations of Conscience: The Costs and Benefits of Religious and Conscientious Freedom (March 1, 2011). Alberta Law Review, Vol. 48, No. 3, 2011. Available at SSRN: http://ssrn.com/abstract=1873489

Morrison, Adele M., Same-Sex Loving: Subverting White Supremacy Through Same-Sex Marriage (2007). Michigan Journal of Race & Law, Vol. 13, No. 1, 2007. Available at SSRN: http://ssrn.com/abstract=1872078

Dent, George W., No Difference?: An Analysis of Same-Sex Parenting (May 20, 2011). Ave Maria Law Review, Forthcoming ; Case Legal Studies Research Paper No. 2011-11. Available at SSRN: http://ssrn.com/abstract=1848184

Tobin, John William, The Convention of the Rights of the Child: The Rights and Best Interests of Children Conceived Through Assisted Reproduction (May 25, 2011). Victorian Law Commission; U of Melbourne Legal Studies Research Paper No. 541. Available at SSRN: http://ssrn.com/abstract=1852928

Evans, Carolyn M. and Gaze, Beth, Discrimination by Religious Schools: Views from the Coal Face (May 25, 2011). Melbourne Univeristy Law Review, Vol. 34, No. 2, 2010; U of Melbourne Legal Studies Research Paper No. 543. Available at SSRN: http://ssrn.com/abstract=1852907

Leonard A. Leo, Felice D. Gaer and Elizabeth K. Cassidy, Protecting Religions from “Defamation”: A Threat to Universal Human Rights Standards, 34 Harvard Journal of Law and Public Policy 769 (2011).

Ian Bartrum, Salazar v. Buono: Sacred Symbolism and the Secular State, 105 N.W. L. Rev. 31 (2010)

Constance Frisby Fain, Minimizing Liability for Church-Related Counseling Services: Clergy Malpractice and First Amendment Religion Clauses, 44 Akron Law Review 221-260 (2011).