First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:

1. Nicholas Quinn Rosenkranz (Georgetown University Law Center), The Subjects of the Constitution, 62 Stan. L. Rev. 1209 (2010).  The abstract states:

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

As judicial review is practiced today, courts skip over this bedrock question to get to the more familiar question: how was the Constitution violated? But it makes no sense to ask how, until there is an answer to who. Indeed, in countless muddled lines of doctrine, puzzlement about the predicates of constitutional violation follows directly from more fundamental confusion about the subjects.

Confusion about the who (and, relatedly, the when) of constitutional violation has been the root cause of many of the deepest puzzles of federal jurisdiction - puzzles of ripeness, of standing, of severability, of “facial” and “as-applied” challenges. Simply by focusing attention on this crucial constitutional feature, the subjects of the Constitution, these puzzles may be solved once and for all. And as they are solved, it becomes clear that this approach constitutes a new model of judicial review.

But the implications of this new paradigm are not limited to federal jurisdiction. It turns out that confusion over the deep puzzles of federal jurisdiction has had subtle but profound feedback effects on substantive constitutional doctrine as well. Once these jurisdictional puzzles are solved, the scope of constitutional rights and powers comes into new focus as well. These implications ripple through the most important and controversial doctrines of constitutional law, from the scope of the Commerce Clause to the reach of the First Amendment, from the meaning of equal protection to the content of privileges and immunities, from the nature of due process to the shape of abortion rights.

2. Orly Lobel  (University of San Diego School of Law), Lawyering Loyalties: Speech Rights and Duties within 21st Century New Governance, 77 Fordham L. Rev. ---  (2010). The abstract states:

Acting legally is within the reasonable role construction of any organizational player. Employees must be loyal to their organization and obey the rules set by their employer, but they must also recognize that employment entails serving two masters – their organization and the legal regime that constitutes it. This Article analyzes the obligations and protections for both public and private sector attorneys who witness misconduct. These ethical and professional duties are considered in light of recent developments in regulatory theory and practice that aim to balance these competing obligations. In the past decade, organizations have been increasingly expected to self-regulate and monitor their own legal compliance and ethical practices. Within these reflexive organizational practices, lawyers must take a broader perspective than merely their client’s immediate requests. The Article offers a critique of Garcetti v. Ceballos as well as private attorney whistleblower case law, arguing that the internal channels of reporting misconduct by lawyers to supervisors or boards strike the best balance between new governance approaches to regulation and client-attorney privileges.

3. Peter Brooks (Princeton University),  Speech, Silence, the Body. The abstract states:

The demand of Khalid Sheikh Mohammed, at his abortive trial by Guantánamo Military Tribunal, that he be allowed to plead guilty in order to be executed invites us to think furhter about our rules for confession, and the relation of confessional speech to bodily constraint — in the extreme, to torture. The purpose of this Essay is to use questions raised by the so-called “war on terror” to cast new light on domestic criminal procedure, and the current status of Miranda doctrine in the wake of such cases as Chavez v. Martinez and Missouri v. Seibert.

4. James J. Sample (Hofstra School of Law), Court Reform Enters the Post-Caperton Era , 58 Drake L. Rev. --- (2010).  The abstract states:

This Article considers the significant state court reform developments in the year following the Supreme Court’s landmark decision in Caperton v. A.T. Massey Coal Co., as well as ancillary federal developments, including renewed congressional interest in judicial disqualification. Picking up on the author’s view that “paradoxically for a decision overturning a state justice’s non-recusal, the majority’s approach is a model of cooperative federalism,” the Article focuses primarily on the initial developments pertaining to money in the courts in Wisconsin, Michigan, and West Virginia in the short period since the decision. The Article notes that while recusal practices have certainly been one focal point of developments in the states, Caperton has also provided a significant boost to judicial public financing. After considering tangible developments in the three identified states, the Article briefly points to more nascent judicial independence efforts in other states, in which Caperton connections are less direct, but where the case is nonetheless figuring prominently in rejuvenated efforts to modify judicial selection practices. The Article asserts that, while not all of the post-Caperton developments have improved the judicial impartiality landscape, on balance, the decision is already producing meaningful improvements in protecting the courts from the influence of money.

5. Barbara Stark (Hofstra University - School of Law), Rhetoric, Religion, and International Human Rights: 'Save the Children!' . The abstract states:

The first information I received about the Convention on the Rights of the Child was a folded up piece of paper in my mailbox in Knoxville, Tennessee. It had not gone through the post office, but had been placed in the mailbox by one of those slow, beat-up trucks that rumbled through our subdivision, stuffing the mailboxes with ads for yard work or housework. This one was different. It told of a United Nations plot to take children away from their parents (and Jesus) and put them under the control of the State. It gave the name and number of a local Baptist Church, where loving parents like myself had begun organizing a resistance. The old truck, sent out by the local church, was faster (and more efficient, at least in Tennessee) than my internet link to the UN human rights website.

Children touch a nerve everywhere. This paper explores how a surprisingly broad range of religious groups have used the rhetoric of “save the child” to link children’s human rights with the breakdown of the family, on one hand, and fundamentalist religion and the sanctity of the family, on the other. Because of the breakdown of the family (attributable, in part, to feminism and human rights) the rhetoric goes, children are worse off. Thus, strong families, grounded in strongly held religious beliefs and supported by local religious communities, are the best hope for “saving the children.”

Human rights rhetoric, in contrast, zooms out to situate parents and children in a broader socio-political context. Most children are indeed worse off, by most indicators - economics, education, health, or drug use, to name the common culprits in the United States. Contrary to the religious rhetoric, however, divorce is more of a parallel result than a unitary cause. Thus, even though divorce rates have remained steady, children’s welfare has steadily declined. Zooming out exposes the macro causes - increasing economic polarization, slashed safety nets, globalization and the mobility of capital - which impose strains on families that fall particularly hard on the most vulnerable; including children.

6. Richard Stith  (Valparaiso University - Law School), If Dorothy Had Not Had Toto to Pull Back the Wizard’s Curtain: The Fabrication of Human Rights as a World Religion, 44 Val. U. L. Rev. 847 (2010 ). The abstract states:

This paper examines the increasing penetration and control of nations by amorphous ideas of human rights, touching upon the symbiotic relation between global capital and human rights, the anti-democratic nature of many rights, the radically political nature of positive rights, the frequent absence of national self-esteem and the consequent yearning for supranational approval, the belief that judges and their surrogates are priests speaking for God, the search for validating judicial will as replacement for a dead God, loss of judicial confidence in reason, and banal judicial vanity. These lead to the creation of the last and greatest Leviathan, a mortal god that can never be dethroned.

7. Yagil Levy, The Clash between Feminism and Religion in the Israeli Military: A Multilayered Analysis ,  published in Social Politics, Vol. 17, Issue 2. The abstract states:

Two social changes that have taken place within the Israel Defense Forces- feminism and religiosity- are marching toward a confrontation. It is a clash between two groups that have significantly increased their presence in the combat units since the 1990s. Central to this dispute is the rabbis' demand that men and women be kept separate in combat units, a demand that may reset barriers to the equal integration of women into these units. Using an interpretative methodology, this paper argues that this clash is a multilayered conflict, which is nurtured by institutional interests, cultural symbols, and hidden agendas. It is an asymmetric conflict in which religious groups have a definite advantage.

8. Kristen Stilt (Northwestern University),  How is Islam the Solution?: Constitutional Visions of Contemporary Islamists, forthcoming in Texas International Law Journal.  The abstract states:

This Article uses documents issued by the Muslim Brotherhood, in particular the lengthy 2007 “Political Party” Platform, and personal interviews with Brotherhood leadership to examine the group’s specific goals and beliefs for the place of religion within the structure of the Egyptian legal system. While many important angles need to be explored, I focus on one topic that has drawn the most attention to the Brotherhood, the place of religion in the state, or religion defined and enforced by state institutions. I show that the Brotherhood carefully acknowledges the existing constitutional structure and jurisprudence on the position of Islam in the state, it also significantly expresses a desire to expand the place of Islam, constructed around and built upon the existing system. In order to examine these areas, the Article first provides essential background on the Muslim Brotherhood and then briefly explains Egypt’s existing constitutional structure with regard to Islam. The main part of the Article discusses in detail the Brotherhood’s agenda and its significance. In conclusion, the Article returns to the larger topic of Islamist political parties participating in national legislatures and will identify general challenges that any such party will face in explaining its agenda and, in particular, how it will combine religious sources along with a commitment to public welfare.

9. Anca Parmena Olimid (University of Craiova - Department of Political Sciences), Religious Liberty and Regime of Cults in the Contemporary European Historiography (Libertatea Religioasă si Regimul Cultelor în Istoriografia Europei Contemporane) (Romanian).  The abstract states:

Without pretending to bring solutions, the present article tries to identify the main talking points of the relation between state, society and religion, assuming the hypothesis that recognizes the unique character of the Romanian history beginning with the 19th century. Moreover, the orientation of the work towards a broader context of scientific analysis allows the possibility of the avoidance of a political, historical and not least religious determinism focused on the years 1945 and 1989: the end of the Second World War and the collapse of the communist regime. In this situation, the article allows for a detailed exposition of the Romanian and foreign literature of the main events in history of Orthodox, Greek-Catholic Church and Catholic Church that marked the dynamics of the modern and contemporary Romania. As to the structural dimension of the religious and political system, most of the analysis converge towards the acceptance of the following components: the situation of the Greek-Catholic Church in Transylvania, the religious freedoms and legislative invariables of the interreligious dialogue in Romania, the transformations of the European spiritual environment thorough a parallel between the religious practices at the beginning of the 20th and 21st centuries.

10. Jessica Dixon Weaver (Southern Methodist University (SMU) - Dedman School of Law), The Texas Mis-Step: Why the Largest Child Removal in Modern U.S. History Failed , 16 Wm. & Mary J. Women & L.  449 (2010).  The abstract states:

This article sets forth the historical and legal reasons as to how the state of Texas botched the removal of 439 children from the Fundamentalist Church of Jesus Christ Latter Day Saints’ parents residing in El Dorado, Texas. The Department of Family and Protective Services in Texas overreached its authority by treating this case like a class action removal based on an impermissible legal argument, rather than focusing on the facts and circumstances that could have been substantiated for a select group of children at risk. This impermissible legal argument regarding the ‘pervasive belief system’ of a polygamist sect that allowed minor females to spiritually marry older adult males sparked questions of how far the Free Exercise Clause of the First Amendment and the Fourteenth Amendment go in protecting religious freedom and parental rights. Ultimately, there was a failure on both sides of the case – harm caused by the unnecessary removal of hundreds of children who were not in immediate danger of abuse, and harm caused by the return of teenage girls who were at risk for sexual abuse on the Yearning For Zion Ranch. The article concludes by discussing key factors that would have made a difference in the outcome of the case and the impact of this decision on the interrelationship between parents, the state, and the child.

11. Michael Bohlander  (Durham Law School) , Open Justice or Open Season? Should the Media Report the Names of Suspects and Defendants?.  The abstract states:

This paper critiques to UK practice of media reports that identify the names and addresses of suspects and defendants before final conviction at the example of the 2010 decision of the UK Supreme Court in Guardian News. It juxtaposes this approach to the principle of open justice with the German self-regulation of the press and argues that names and addresses are irrelevant to the discourse about matters of public interest in the vast majority of cases and that naming names constitutes a violation of an individual's privacy.

12. Justine Pila (University of Oxford - Faculty of Law), Academic Freedom and the Courts , 126 Law Quarterly Review  347 ( 2010) on SSRN. Here is the abstract:

Recent events in the United Kingdom have focused attention on the protection at law of institutional and individual academic freedom. While such freedoms sit in tension, they share a basis in the liberal ideal of the pursuit of truth through teaching, discussion and research. It is a truism that this ideal is currently under threat, and with it academic freedom itself. The source of the threat is complex and varied, but includes changes in the economy, scientific research, and British higher education policy. One result of these changes has been what W R Cornish described in 1991 as “a rising determination to see how far the research conducted in institutions of higher learning can be turned to industrial account,” and a pressure on British universities to operate more as Technopolis than as Academe ([1992] EIPR 13 at 13, 14). In the face of this pressure the question arises, what protection can academic freedom expect from the courts? Here I suggest that some indication may be gleaned from the decision in UWA v Gray [2009] FCAFC 116.

 

JFB