First Amendment Law Prof Blog

Journalists, Confidential Sources, and Anonymous Prepaid Cellphone Purchases

Yesterday’s New York Times reported that Senators Charles Schumer and John Cornyn are at work on legislation that would require purchasers of prepaid cellphones to provide identification and would mandate that sellers of such phones keep purchaser information for eighteen months.  Prepaid cellphones, which can now be purchased by providing unquestioned registration names such as Abe Lincoln, Lady Gaga, and LMAO LMAO, are often used by drug dealers and others engaged in illegal activity.  The use of such a phone by accused Times Square bomb plotter Faisal Shahzad prompted the call for a legislated end to anonymous purchases.  However, as the Times notes, journalists also supply such devices to confidential sources to offer some peace of mind about contacts with the reporters. Seeing the value and even necessity in a subset of anonymous cellphone purchases, Jim Dempsey of the Center for Democracy and Technology told the Times: “There has to be a little bit of a safety valve for whistle-blowers and battered spouses who want to get off the grid.” Dempsey added that such phone users still leave a trail of “digital bread crumbs” that give law enforcement agencies leads to pursue.  In the Shahzad case, for example, his anonymously purchased prepaid phone was used to call a number in Pakistan that the suspect had previously provided on customs documents, creating a way to link him to the phone. 

JFB  

 

First Amendment Scholarship Update

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

1.  Anupam Chander (University of California, Davis - School of Law), Googling Freedom , forthcoming in California Law Review. The abstract states:

While GM and GE are rushing in to China, why are so many Americans cheering the possibility of Google pulling out? The answer to this puzzle lies in Google’s special role as new media. Television once moved the free speech paradigm from the local street corner to the national platform of CBS; the Internet has shifted it further to the global stage offered by Google and its peers. Free speech theory – and Western media corporations – must now grapple with the reach of this media into unfree societies. While a growing chorus has denounced Western new media enterprises for betraying their obligations to the people of China and other authoritarian regimes, no one has yet explained what those obligations are or why these companies might have them. Corporate social responsibility theory has focused largely on the risks of a global supply chain in goods, neglecting the questions raised by the rise of global information services. The notion of corporate obligations to people around the world seems especially perplexing in juxtaposition with the familiar mandate to maximize shareholder wealth at home. Drawing from theories of Foucault and Habermas and the history of the underground press, I argue that information service providers bear a special responsibility to unfree people. What might have been mutually beneficial transactions in a free society can become, in an unfree society, predicate offenses leading to years of hard labor. New media can either help give voice to dissidents or help perfect totalitarianism.

2.  Steven Douglas Smith (University of San Diego School of Law), The Phases and Functions of Freedom of Conscience. The abstract states:

This short essay, written for a book collecting papers on religion and human rights, surveys the development of constitutional and international commitments to freedom of conscience and examines some of the difficulties associated with freedom of conscience in a secular and egalitarian political setting.

3.  Michael J. Perry (Emory University School of Law), Secular Worldviews, Religious Worldviews, and the Morality of Human Rights , forthcoming in The Routledge Companion to Theism, Charles Taliaferro, Steven Goetz & Victoria S. Harrison, eds.The abstract states:

The morality of human rights -- by which I mean the foundational, connected moral claims articulated in the International Bill of Human Rights -- coheres well with some religious worldviews. For example, and as philosopher Charles Taylor has explained, the “affirmation of universal human rights [that characterizes] modern liberal political culture [represents an] authentic development[] of the gospel . . .” But does the morality of human rights also cohere, well or otherwise, with any secular worldview: any worldview that denies or is agnostic about the existence of a “transcendent” reality, as distinct from the reality that is the object of natural-scientific inquiry? Put another way: Are secular worldviews and the morality of human rights like oil and water?

This is an essay in human rights theory--a brief essay, given its intended venue; see below. In it, I explicate the morality of human rights and then address the question articulated in the preceding paragraph. Along the way, I reference recent work in human rights theory by religious human-rights theorist Nicholas Wolterstorff ("Justice: Rights and Wrongs") and secular human-rights theorist James Griffin ("On Human Rights").

In this essay, I build on an argument I began in The Idea of Human Rights (Oxford, 1998) and continued, in revised form, in Toward a Theory of Human Rights (Cambridge, 2007).

4. Michael J. Perry (Emory University School of Law), From Religious Freedom to Moral Freedom, forthcoming in Religion and Human Rights, John Witte Jr. & M. Christian Green, eds, Oxford University Press. The abstract states:

In one or another articulation, the right to religious freedom is a familiar constituent of national constitutions and of regional and international human rights instruments. The canonical articulation of the right is found in Article 18 of the International Covenant on Civil and Political Rights, to which the United States is one of more than 160 state parties. I argue in this essay that the "logic" (so to speak) of the best case for the right to religious freedom also supports an analogous right to moral freedom. At the end of the essay, I comment on the the proper, and properly limited, role of religiously grounded moral premises as a basis of laws and other policies that implicate the right to moral freedom.

This essay will appear in a symposium issue of the University of San Diego Law Review -- a symposium issue devoted to freedom of conscience. A shorter version of the essay will appear in Religion and Human Rights, edited by John Witte Jr. and M. Christian Green (Oxford University Press, forthcoming).

5.  Linda C. McClain (Boston University - School of Law), Marriage Pluralism in the United States: On Civil and Religious Jurisdiction and the Demands of Equal Citizenship, forthcoming in Marriage and Divorce in a Multi-Cultural Context: Reconsidering the Boundaries of Civil Law and Religion, Joel Nichols, ed., Cambridge University Press. The abstract states:

“Legal pluralism” is hot, particularly in family law. As family law and practice in the United States have become global due to the globalization of the family, some argue it is time for U.S. family law to embrace more legal pluralism so that civil government would cede jurisdictional authority over marriage and divorce law to religious communities. They point to forms of pluralism already present in U.S. family law, such as covenant marriage (available in three states) and New York’s get statutes. They suggest the U.S. should learn from how many other nations allocate jurisdiction over marriage and divorce law (for example, systems of personal law, in which religious tribunals have such jurisdiction). In this chapter, I argue that an exercise in comparative law does reveal many different ways of allocating jurisdiction over family law, but does not answer the normative question of whether these are good models for U.S. family law. Challenging the call for a “multi-tiered” marriage, I analyze what form of marriage pluralism in the U.S. is sought and what might be motivating this demand. I examine differing views about whether there should be congruence between religious and civil marriage, illustrating with the controversy over same-sex marriage. I raise a normative concern over tensions between religious doctrines and key commitments, values, and functions of civil family law, illustrating with how state courts in the U.S. now navigate those tensions when asked to enforce terms of religious marriage contracts and other religious law. I am also skeptical as to whether a more pluralistic legal system can adequately protect the equal citizenship of women. Nearly every foreign example that proponents of jurisdictional pluralism in family law offer raises troubling question about how to reconcile sex equality with religious freedom. Feminist scholars highlight the importance of claims of national and constitutional citizenship as a strategy for redressing sex inequality, even as they affirm the value of membership in religious and cultural groups. Finally, I ask what lessons we might learn about legal pluralism from the recent controversy over religious family law arbitration (or “sharia arbitration”) in Ontario.

6. Christopher P. Guzelian (Visiting Assistant Professor of Law, Thomas Jefferson School of Law), True and False Speech, 51 B.C. L. Rev. 669 (2010). The abstract states:

First Amendment law is structurally unstable because it does not adequately distinguish true and false speech. Free speech law, there-fore, is “unpredictable,” meaning that speakers cannot accurately predict whether their contemplated speech will suffer sanction. Unpredictable law causes the Rule of Law’s collapse. This Article demonstrates that an effective first step in improving First Amendment law would be to create well-defined liability for false speech. We conclude that, in particular, scientific speech—a form of speech readily determined to be true or false— must face additional scrutiny. Anticipating serious objections to formal-ized false-speech liability, we then show that these objections, interest-ingly, apply with equal force to any form of legal liability. The implication of this fact is that rejection of this Article’s modifications to First Amend-ment law requires deep reconsideration about how we should administer most legal liability, not only First Amendment law.

7.  Eric Osei-Assibey (Nagoya University), Choosing Not to Borrow: An Evaluation of Perception and Sociocultural Factors Underlying Voluntary Self-Exclusion, published in The IUP Journal of Financial Economics, Vol. 8, Nos. 1 & 2, pp. 36-66, March & June 2010. The abstract states:

The purpose of this study is to investigate the underlying sociocultural factors that drive the majority of microentrepreneurs to voluntarily exclude themselves from seeking external finance, despite complaints of severe financial constraints. Using structured questionnaire, data on some 176 microenterprises in Ashanti region of Ghana were collected. A simple conceptual framework was utilized to classify various forms of financially constrained and unconstrained microenterprises. A logistic regression technique was then applied to a utility function model of credit demand. The findings suggest that voluntary self-exclusion is not only driven by microenterprise or owner’s socioeconomic status, but also most significantly by their perceived difficulties in accessing external finance and negative cultural-religious biases toward credit use or borrowing as well as financial illiteracy. The study further finds that most microentrepreneurs are interest inelastic or insensitive suggesting that they are more interested in easier and faster access to finance rather than the cost of borrowing. The evidence implies that policies directed at building all-inclusive financial system by focusing on supply side alone are unlikely to be successful. Complementary target policies that tackle the fundamental issues of negative perceptions and mistrusts on the financial institutions by creating awareness through extensive financial literacy programs and social mobilization would be a holistic approach in solving the problem. Besides, innovations in religioncompliant financial institutions should be promoted to meet the financing needs of those who exclude themselves because of religious beliefs.

8. Kelly Sarabyn,  Free Speech at Private Universities, 39 J.L. & Educ. 145 (2010). The abstract states:

For the last thirty years, our nation’s universities have debated whether to proscribe hate speech on campus. Universities’ paramount function is to seek knowledge, and thus they desire free and open inquiry, but universities also wish to ensure that they provide a welcoming environment to historically disadvantaged groups. A detailed study of the policies of the top 150 universities reveals that the majority of universities - rather than resolve these conflicting goals - maintain contradictory policies that both protect and proscribe hate speech. This allows schools to tout different policies to different interest groups, and it leaves students vulnerable to unexpected punishment. I explore possible responses to this pervasive problem. Direct regulation - forcing private universities to allow hate speech - may vindicate the liberal ideal of free speech, but it threatens the liberal ideal of the right to private association. Applying contract law, in contrast, allows private universities to set their own policies, but not to promise community members one type of institution and then deliver another. This enables experimentation across institutions and forces universities to reach a resolution on the question of proscribing hate speech. It would thus move the debate over proscribing hate speech forward.

9.  David Axelman (University of Miami Law Review), Citizens United: How the New Campaign Finance Jurisprudence Has Been Shaped by Previous Dissents. The abstract states:

This article analyzes the new campaign finance jurisprudence as it relates to the independent expenditures of corporations. The primary purpose of the article is to examine the ways in which the Citizens United majority channeled the previous dissents of Justices Scalia, Kennedy, and Thomas in solidifying a new approach to campaign finance regulations that is centered on a robust protection of free speech rights. After establishing a brief background, the article first seeks to explain why the Court was correct in recognizing that the First Amendment was implicated by restrictions on a corporation’s ability to fund campaign speech. This argument relies largely on the Court’s commercial speech cases, in which the Court consistently recognizes that the First Amendment does protect (at least somewhat) the commercial speech of corporations. If purely commercial corporate speech is protected, the argument goes, then certainly political speech does not lose its protection merely because the speaker is a corporation. This part of the article also relies on longstanding First Amendment jurisprudence in addressing and seeking to discredit the argument that the First Amendment shouldn’t apply to campaign finance regulations because “money isn’t speech.”

After explaining why the First Amendment is implicated by such regulations, the analysis turns to the various ways in which Citizens United was informed by the aforementioned dissents. The analysis proceeds by discussing four separate government interests that have been asserted as justifications for the previous regulatory regime. These interests are the now-discredited anti-distortion interest recognized in Austin, the longstanding interest in preventing corruption and the appearance thereof, the interest in protecting shareholder sensibilities, and the interest in leveling the playing field so that all political speech is given an equal forum. The article explains how the Court’s treatment of each interest in Citizens United was informed by the previous dissents of those who helped to form the new majority that decided the case.

10.  Claudia E. Haupt (George Washington University Law School), Mixed Public-Private Speech and the Establishment Clause, forthcoming in Tulane Law Review. The abstract states:

Determining responsibility for speech is important for two reasons: to address rights to forum access and to identify whether Establishment Clause limits apply. Private speakers may demand rights of access to a public forum, and in such a forum they may articulate their message free from viewpoint restrictions. Private speech, moreover, is not subject to Establishment Clause limits. If the speech is government speech, the Free Speech Clause does not apply, and the government may articulate its message to the exclusion of all other speakers. If the government speech has religious content, it may run afoul of the Establishment Clause. This Article proposes an “effective control” framework to determine Establishment Clause responsibility in cases where public and private actors jointly engage in speech. Between the end-points of purely governmental and purely private speech, it places such speech on a mixed speech continuum. After introducing the framework, this Article demonstrates how the theory of “effective control” functions in a variety of contexts implicating the Establishment Clause, including permanent and temporary displays, prayer in public schools, access to public school property, and legislative prayer. In some instances, discussed as “truly hybrid speech” in this Article, the effective control inquiry fails to identify a unilaterally responsible party. In these limited cases, this Article argues that the speech is sufficiently private for forum access purposes – meaning that the speakers may claim a right to forum access – and at the same time sufficiently governmental for Establishment Clause purposes, creating a secular forum in certain narrowly defined speech contexts.

11.  Michael Birnhack (Buchmann Faculty of Law, Tel Aviv University), Unmasking Anonymous Online Users in Israel, published in Hukim - Journal on Legislation, Vol. 2, pp. 51-131, 2010. The abstract states:

What should be the legal rule as to unmasking anonymous online users? The typical case is defaming content, generated by anonymous users. The Article discusses this burning issue in the Israeli context, in a comparative manner and within three intertwined frameworks. First, I explore the meaning of anonymity and argue that it is worthy of legal protection both as an instance of the principle of free speech (similar to American jurisprudence), and as an instance of privacy (closer to the European jurisprudence). Second, I argue that free speech should be an organizing principle in regulating the digital environment. The internet offers a unique discursive space. Any proposed rule should be evaluated as to its direct and indirect impact on free speech. Third, the regulation of online anonymity should be located within a broader framework of law and technology, which is attentive to the dynamic inter-relationship between the two.

The Article analyzes the development of the legal rule in Israeli court regarding the unmasking of anonymous users, including the recent decision (April 2010) of the Supreme Court in the case of Mor v. Barak Online, Ltd., in which the Court ruled that current Israeli law lacks a proper procedural frame to enable courts to order the unmasking of users, the result being that courts lack authority to issue such orders. I propose a procedure in which the ISPs first and the courts later, if needed, serve as an intermediary between the offended party and the anonymous user, so to maximize the privacy and free speech of the user, of potential users, while minimizing potential abuse of the unmasking procedure and enabling redress in due cases.

12.  Matthew Mazzotta, Note - Balancing Act: Finding Consensus on Standards for Unmasking Anonymous Internet Speakers, 51 B.C. L. Rev. 833 (2010). The abstract states:

The growth in popular use of the internet has led to a dramatic increase in both the amount of anonymous speech and the number of ag-grieved plaintiffs claiming to be harmed by it. Lawsuits involving anony-mous internet speech present thorny questions for courts because plain-tiffs typically must obtain the identity of anonymous speakers during discovery before any adjudication of the underlying claim. Compelled dis-closure of identifying information thus risks chilling speech by subjecting anonymous speakers who have done nothing illegal to unwarranted har-assment and retaliation. In response to these concerns, courts have formu-lated “unmasking” standards for determining when to allow anonymous speakers to be identified. This Note examines trends within various un-masking standards and proposes a single standard for future courts that requires notice, an evaluation on the merits of the plaintiff’s claim, and a balancing of the First Amendment rights of the anonymous speaker against the strength of the plaintiff’s claim and the need for unmasking.

13. Jolie Martin and Cleotilde Gonzalez (Carnegie Mellon University),The Cultural Determinants of Strategic Bias in Conflict Resolution .The abstract states:

We examine the impact of individuals’ religious and political affiliations on the conflict resolution strategies they employ. Participants in the U.S., Israel, and Qatar played the interactive computer game PeaceMaker (ImpactGames, 2006) with the objective of satisfying constituents on both sides of the Israel-Palestine conflict. We find a “reverse bias” favoring participants’ non-affiliated side in the role of Israeli Prime Minister, but bias favoring one’s affiliated side when playing the role of Palestinian President. We interpret this difference in light of minority-majority group membership, and deliberate assertion of in-group interests versus perspective-taking of out-group interests. Finally, we discuss the potential of interactive computer games to study conflict resolution in other dynamic environments characterized by uncertainty and complex interdependencies.

14. Stelios Michalopoulos (Tufts University, Department of Economics), Alireza Naghavi (University of Bologna - Department of Economics) and Giovanni Prarolo  (University of Bologna), Trade and Geography in the Economic Origins of Islam: Theory and Evidence. The abstract states:

This research examines the economic origins of Islam and uncovers two empirical regularities. First, Muslim countries, virtual countries and ethnic groups, exhibit highly unequal regional agricultural endowments. Second, Muslim adherence is systematically larger along the pre-Islamic trade routes in the Old World. The theory argues that this particular type of geography (i) determined the economic aspects of the religious doctrine upon which Islam was formed, and (ii) shaped its subsequent economic performance. It suggests that the unequal distribution of land endowments conferred differential gains from trade across regions, fostering predatory behavior from the poorly endowed ones. In such an environment it was mutually beneficial to institute a system of income redistribution. However, a higher propensity to save by the rich would exacerbate wealth inequality rendering redistribution unsustainable, leading to the demise of the Islamic unity. Consequently, income inequality had to remain within limits for Islam to persist. This was instituted via restrictions on physical capital accumulation. Such rules rendered the investments on public goods, through religious endowments, increasingly attractive. As a result, capital accumulation remained low and wealth inequality bounded. Geography and trade shaped the set of economically relevant religious principles of Islam affecting its economic trajectory in the pre-industrial world.

15. Neil W. Netanel (University of California, Los Angeles - School of Law) and David Nimmer (Irell & Manella LLP), Is Copyright Property? The Debate in Jewish Law, forthcoming in 112 Theoretical Inquiries in Law --- (2011). Here is the abstract:

Is copyright a property right? That question raises a host of thorny theoretical issues regarding the foundational underpinnings of both copyright and property. The notion that if copyright is “property,” it will or should resemble a perpetual, absolute, pre-political property right, has repeatedly infused judicial proceedings, legislative enactments, and public debate in both common law and civil law countries as well.

Like their common law and civil law counterparts, Jewish law jurists have engaged in protracted debate about whether copyright is a property right. Recent decades have seen numerous rabbinic court decisions, responsa (rulings in disputes or advisory opinions coupled with a lengthy exegesis on Jewish law in answer to questions posed), scholarly articles, and blog entries on such issues as whether it is permissible, without license from the author or publisher, to republish a book after the rabbinic printing privilege has expired; to copy and distribute software or sound recordings; to perform music in wedding halls; to make copies for classroom use; and to download songs from the Internet. And like in secular law, but for somewhat different reasons, the characterization of copyright as “property” has significant doctrinal consequences for resolution of these controversies in Jewish law.

There are numerous, and at times profound, differences in the terminology, form of argument, doctrinal specifics, and overarching legal framework of Jewish law and secular law in this area and others. Nonetheless, the arguments within the Jewish law debate have some intriguing parallels with those of secular law copyright. In fact, one finds the direct, if largely unstated, influence of secular copyright just below the surface in the debate about whether copyright is property in Jewish law.

16. Mirjam Künkler (Princeton University), The Special Courts of the Clergy (Dadgah-E Vizheh-Ye Ruhaniyyat) and the Repression of Dissident Clergy in Iran. The abstract states:

The paper focuses on the special courts for the clergy (SCC) in Iran, their legal mandate, functions, performance and transformation over time. Set up in the early years of the revolution, the SCC were formally re-established in 1987 by decree of Leader Ayatollah Khomeini, and endowed with an ordinance by Leader Khamenei in 1990. The official function of the SCC is to investigate criminal transgressions of the clergy, but the courts have increasingly become an instrument for the suppression of dissident clerics.

The SCC function under the direct jurisdiction of the Leader, and not, as all other courts, within the framework of the judiciary. Whereas the judges of other courts are appointed by the Head of the Judiciary, the chief judges and prosecutors of the SCC are directly appointed by the Supreme Leader.

As the SCC are not part of the official judiciary system, they run their own security network, including their own prison system. The Supreme Court, being part of the judiciary, has no jurisdiction to review cases of the SCC. Instead, appeals are heard by another chamber of the SCC. All court proceedings are closed to the public and whatever other laws may apply to legal proceedings and prison conditions in the country, they do not apply to the SCC.

JFB

Law Prof Peter Erlinder Arrested in Kigali

William Mitchell Law Prof Peter Erlinder has been arrested in Kigali on charges of denying the Rwandan genocide.  Erlinder is well known for defense work at the International Criminal Tribunal for Rwanda, and was in Kigali representing Victoire Ingabire, a leading opposition candidate herself targeted by Rwandan authorities after she claimed that crimes committed against Hutus during the 1994 genocide were deliberately overlooked.

Here's a fitting excerpt of the statement released by William Mitchell:

William Mitchell has a 110-year history of legal education that is engaged with the legal profession, and we support and encourage the legal pursuits of our faculty beyond the college. Prof. Erlinder is in Rwanda to represent Victoire Ingabire, an opposition candidate for President of Rwanda who was arrested over accusations of promoting genocide ideology. In traveling to Rwanda, Prof. Erlinder exemplifies the great tradition of lawyers who take on the representation of unpopular clients and causes. That Prof. Erlinder did so at great personal risk demonstrates the strength of his commitment to justice and due process. We support his commitment to justice, the rule of law, and public service, which are the core of the lawyer’s function in society and values Prof. Erlinder works to instill in the students he teaches at William Mitchell.

-Kathleen Bergin

 

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

 

Global Free Speech Update

 

 

Pakistan: YouTube and Wikipedia join the growing list of internet sites (over 450 according to WaPo) blocked because of content deemed offensive to Islam. The crackdown started last week when Facebook was blocked after users were invited to post drawings of the prophet Muhammad.

Equatorial Guinea: Rights groups are urging UNESCO to reject a three million dollar donation from President Theodoro Obiang that would be used to fund an international prize in life sciences. In a letter delivered on Friday, the group called Obiang "one of Africa’s worst violators of press freedom," adding that several international journalists have been targeted by his regime.

Philippines:  Ranks as the world’s deadliest country for journalists in 2009, according to Reporters Without Borders. Thirty journalists were among the 50 people killed in a political massacre in November, and reporters continue to be targeted in the aftermath of national elections.

Kazakhstan:  Draft provisions of the national Code on Administrative Offenses raise international free speech concerns, say media rights groups familiar with the proposed law. On the table are media registration requirements and troubling content prohibitions, including restrictions on the ability of journalists to speculate about the outcome of a pending trial, and excessive limits on broadcasts that contain foreign language programming.

-Kathleen Bergin

First Amendment Scholarship Update

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

1.  Jane E. Kirtley, Mask, Shield, and Sword: Should the Journalist’s Privilege Protect the Identity of Anonymous Posters to News Media Websites?, 94 Minn. L. Rev. 1478 (2010), The abstract states:

Online speakers enjoy a qualified constitutional right to be anonymous. But competing reputational, privacy, copyright or law enforcement interests may outweigh that right. When an anonymous speaker chooses to post a comment on a news organization’s website, can she expect the media company to protect her from being “unmasked” by a litigant or investigator? Should news organizations assert the reporter’s privilege to protect confidential news sources and information from compelled disclosure in order to resist revealing the identity of anonymous posters? Is it realistic to expect them to expend their own resources to protect a poster? Do they risk undermining the privilege if they do so? Should they simply remain neutral and allow the poster to attempt to vindicate her own constitutional rights? This article examines the emerging law as courts consider whether to extend the journalist’s privilege to protect anonymous “John and Jane Doe” posters on news organizations’ websites, and considers the ethical as well as legal dilemmas that these cases raise for news organizations.

2. Orin S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L. Rev. 1561 (2010). The abstract states:

This Article argues that the void for vagueness doctrine requires courts to adopt narrow interpretations of the Computer Fraud and Abuse Act. On its face, the CFAA has become extraordinarily broad. Recent amendments indicate that Congress has largely abandoned the job of identifying what conduct involving computers should or should not be a federal crime. Congress has broadened the statute so far that the courts must now narrowly construe the statute to save its constitutionality. This Article demonstrates how courts should narrowly construe the statute under the void for vagueness doctrine by focusing on two recent criminal prosecutions: United States v. Drew, which considered whether Terms of Service violations trigger CFAA liability, and United States v. Nosal, which asked whether it violates the CFAA for employees to access their employers’ computers in ways contrary to their employers’ interests. These two prosecutions show the critical role of vagueness doctrine in interpreting the CFAA, pointing to a future of judicial narrowing of the statute.

3. Christopher Slobogin, Proportionality, Privacy, and Public Opinion: A Reply to Kerr and Swire, 94 Minn. L. Rev. 1588  (2010). The abstract states:

This Article responds to two reviews of the author’s book, Privacy at Risk: The New Government Surveillance and the Fourth Amendment.  The book criticizes Supreme Court decisions that immunize from constitutional challenge numerous government surveillance techniques, including monitoring of public activities, spying on the home using generally available technology, and aggregation of records describing everyday transactions.  Privacy at Risk proposes instead that the Fourth Amendment be read to permit only those surveillance techniques that produce a success rate roughly proportionate to the intrusion they visit upon those affected, and argues that intrusiveness should be measured empirically rather than simply determined through guesswork.  In their reviews of the book, Professor Swire finds this proportionality idea attractive but would tweak it, while Professor Kerr argues that intrusions on civil liberties should be gauged “normatively” rather than empirically and that the justification for a particular intrusion should depend on numerous variables besides the extent to which it is likely to produce evidence of wrongdoing. This Article defends the author’s original proposals and adds discussion about (1) the relevance of empirical findings to constitutional adjudication and (2) the relevance of political process theory to surveillance of groups.

4.  Ann Southworth (University of California, Irvine School of Law), Anthony Paik (University of Iowa, Department of Sociology), and John P. Heinz (American Bar Foundation), Lawyers in National Policymaking, published in LAW AND THE POSSIBILITY OF JUSTICE, Scott Cummings, ed., Cambridge University Press( 2010) .The abstract states:

Previous research on lawyers engaged in politics analyzed a sample of those who represented conservative or libertarian organizations in the late 1990s. The data examined here deal with organizations and lawyers drawn from the full range of American politics - right, left, and center - and focus on a set of policy initiatives in 2004 and 2005. We find that women were overrepresented among lawyers representing liberal activist organizations and strikingly underrepresented among those serving social conservatives. Lawyers for the latter were also much less likely to have prestigious academic credentials than were those serving liberal activists. Moreover, organizations speaking for social and religious conservatives had few ties to other interest groups in the measures used here - joint participation in litigation or in legislative testimony, overlap in boards of directors or advisors, and use of the same lobbying firm. Overall, the network of organizations was sparsely connected. There are, however, two sectors within the network where connections were dense. The first is a cluster of social and religious conservatives; the second and larger sector is a set of businesses and trade associations. Unlike the social conservatives, however, the businesses are not only connected to each other but are well-integrated into the overall system, with many links that provide potential for communication to other sectors. Liberal groups are less densely connected, while having several alternative paths to other parts of the network.

5.  Belal A. Kaifi (Franklin University) and and Bahaudin G. Mujtaba (Nova Southeastern University),  Workforce Discrimination: An Inquiry on the Perceptions of Afghan-American Professionals, published in Journal of Business Studies Quarterly, Vol. 1, No. 1, pp. 1-15, 2009. The abstract states:

Ethnic and religious diversity is part of each society in the modern world and being an Afghan is another dimension of these differences in the United States. The research question for this study was to see if Afghan-Americans are experiencing more discriminatory practices as a result of the 9/11 events. The results of 502 Afghan-Americans demonstrated that they do report more discrimination in the post-9/11 era. Furthermore, the results of 280 males and 222 females demonstrate no difference in questioning of their civil rights in the United States. Implications and recommendations are offered for effective diversity management.

6. Melissa Crouch  (University of Melbourne),Indonesia, Militant Islam and Ahmadiyah: Origins and Implications,  ARC Federation Fellowship, ‘Islam, Shariah and Governance’ Background Paper Series No. 4, 2009. The abstract states:

Ahmadiyah, a minority religious community that identifies with Islam, has existed in Indonesia since the 1920s. Over the last few years, however, Ahmadiyah has experienced increasing tension and hostility from conservative, orthodox Islamic groups in Indonesia. On 1 June 2008, this culminated in a violent attack on supporters of Ahmadiyah by militant Islamic groups at the National Monument (known as ‘Monas’) in Jakarta. Shortly after this incident, the Indonesian government issued Joint Decree 3/2008 as a ‘warning’ to followers of Ahmadiyah, though stopping short of an outright ban. This paper analyses the origins of Ahmadiyah and its formation in Indonesia in particular. It examine the efforts of three key actors pushing for a total ban on Ahmadiyah in Indonesia: the Indonesian Ulama Council (MUI); the Coordinating Board for Monitoring Mystical Beliefs in Society (known as ‘Bakor Pakem’); and radical Islamic groups. The author argues that although the Indonesian government compromised by issuing a ‘warning’ (not a total ban), and by prosecuting two of the leading perpetrators of the Monas incident, this has only created confusion about the status of Ahmadiyah in Indonesia and has failed to prevent further violent attacks against them.

7. Yutian Ling (University of Hawaii at Manoa - Institute of Asian-Pacific Business Law), Upholding Free Speech and Privacy Online: A Legal-Based and Market-Based Approach for Internet Companies in China. The abstract states:

China is well known for its Internet-monitoring and censorship efforts. As Internet technology and the online culture develop, the Chinese government continues its efforts to control content and communications. It forces both domestic and foreign Internet companies that want to do business in China to censor content and reveal the private information of users upon request. There has been much discussion in the international community on how to prevent non-state actors, such as transnational corporations, from violating human rights. The situation in China is uncommon in that it is government coercion and not simply the will of the corporation that leads to free speech and privacy violations. This paper discusses a two-prong approach to move toward more freedom of expression and privacy rights within China’s Internet system. The first prong consists of an international corporate code of conduct, such as the Global Network Initiative, that provides guidelines on how to resist government attempts to violate the rights of users. This code must have a wide range of unified participants and a strong reporting and accountability system. The second prong is a market-based approach that focuses on innovation of technologies to overcome censorship, better consumer relations, and fostering of a strong online community. Companies that provide better products and that protect the interest and freedom of users will gain market share in China and thus have more influence over industry regulation. Although China has managed to prevent economic freedom from significantly influencing political reform, greater freedom on the Internet will likely lead to incremental changes in civil and political rights. By combining these two prongs, a strong international network of companies backed by an emerging standard of business conduct can protect freedom of speech and privacy while still providing a robust online world for the Chinese people.

8. Giovanni Sartor and Mario Viola de Azevedo Cunha  (European University Institute Law Department and European University Institute) , The Italian Google-Case: Privacy, Freedom of Speech and Responsibility of Providers for User-Generated Contents. The abstract states:

In a recent decision of the Tribunal of Milan three Google executives were convicted for violating data protection, in connection with the on-line posting of a video showing a disabled person being bullied and insulted. This paper, after illustrating the facts of the case and the reasoning of the judge, discusses the main issue at stake, namely, the role and responsibilities of providers of platforms for user-created contents with regard to violations of data privacy.

9. Brett Freudenberg and Dr. Mahmood Nathie (Griffith University), Tax and Religion: Never the Twain Shall Meet?, presented at the  9th International Tax Administration Conference,  April 8-9, 2010.The abstract States:

This paper focuses on the emergence of Islamic banking and finance in global financial markets and efforts by governments (through regulatory and tax initiatives) to facilitate it. Particularly, this paper focuses on the fundamental question as to whether it is constitutionally possible for Australia to implement such tax reforms to encourage and facilitate faith-based transactions.

Recently there have been calls for Australia to become a financial hub - particularly in south East Asia. One aspect of this is the recognition of faith-based financial alternatives in the marketplace. This consideration includes ensuring that tax laws are synchronised and do not unduly hinder or restrict the orderly development of such alternatives. The Islamic financial markets stand out as one example. In 2007 it was estimated that the market for Islamic finance products were worth in excess of US$700 billion associated primarily with the world's Muslim population.

However, one core element to the structure of Islamic financial transactions is the necessity to ensure religious compliance with, for example, not involving the usage of riba (interest). Being different to conventional finance, Islamic finance has attracted both interest and scepticism, partially because of the paucity of academic research on the subject - with Australia being no exception (Amin, 2007). However, the structural nature of some of these faith-based financial models can sit awkwardly with Australia’s tax system. For example, housing finance using an Islamic product is, in certain circumstances, structured more like a pre-determined fixed sum hire purchase agreement compared to an outright conventional purchase with payment of interest on the amount borrowed.

The need for research in this area is critical as some countries like the United Kingdom, Malaysia and Singapore, have introduced reforms to their finance and tax laws to recognise the use of and facilitation of Islamic finance. There have been calls in Australia for similar reforms to be considered as part of Australia's quest to become a regional financial services hub (Bowen, 2009).

Juxtaposed between competitive forces among nations, it is important to consider whether Australia's tax system is impeding the development of an emerging Islamic finance market. Also, given Australia's multi-culturalism it is important to consider whether Australia's legal system (including tax) can be broaden to ensure greater fairness between its citizens regardless of their faith.

While the idea of facilitating more faith-based transactions may seem economically rational - a fundamental question needs to be addressed - is it appropriate for Australia’s tax laws to be amended to facilitate other religions. This paper will explore this fundamental question before considering how this idea may be facilitated. This paper addresses the theoretical considerations of tax and religion and critically assesses the implications of Islamic finance in light of Australian constitutional law, tax neutrality and economic efficiency.

10. Ari B. Fontecchio (Benjamin N. Cardozo School of Law), Compelling the Courts to Question Gonzales v. O Centro: A Public Harms Approach to Free Exercise Analysis.  The abstract states:

This article uses an original, empirical case study to argue that the Supreme Court's 2006 decision in Gonzales v. O Centro elevated the level of scrutiny with which courts evaluate the government's compelling interest, expanding the safe harbor for harmful, religious activity. In O Centro, the Supreme Court rejected the government's compelling interest in regulating religious use of the Schedule I hallucinogenic drug hoasca. The case survey at the core of this article demonstrates that since this decision, lower courts have required the government to justify its regulation of potentially harmful activities with an almost unrealistically high showing. Specifically, the study examines all the compelling interest cases since Sherbert v. Verner, which set forth the compelling interest test in 1963. After classifying the cases into pre- and post-O Centro categories, the study compares the rates at which courts accept(ed) the government's proffered interest as "compelling." Finally, after performing analysis and calculations, the article concludes that the Court's decision in O Centro does, in fact, make the government's burden unrealistically difficult to satisfy in both the RFRA and RLUIPA free exercise contexts.

11. Katya Assaf III (Hebrew University of Jerusalem), Magical Thinking in Trademark Law.  The abstract states:

People in all societies have a strong tendency toward magical thinking. This human tendency is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us beautiful, successful, happy, etc. Employing anthropological research, this article suggests that such advertising creates a system of beliefs closely resembling a totemic religion. In this religion, brands perform the role of sacred objects.

The article further demonstrates that trademark law supports and encourages the commercial religion of brands. Trademark law initially aims at preventing consumer confusion as to the source of goods. Yet, today famous trademarks are extensively protected against non-confusing associations. This article argues that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and various trademark doctrines, I suggest that famous marks are legally treated as magical, sacred objects. This approach amounts to legally endorsing the religion of brands. I submit that this result is undesirable and probably even unconstitutional in light of the neutrality principle.

12. Melissa Crouch (University of Melbourne), Religious Regulations in Indonesia: Failing Vulnerable Groups?, published in Review of Indonesian and Malaysian Affairs, Vol. 43, No. 2, 2009., The abstract states:

Since 1998 and the downfall of Suharto, local governments across Indonesia have passed a range of religious regulations, commonly known as perda syariah. This paper is based on analysis of over 160 religious regulations from 26 provinces in Indonesia. It will examine how the transition to decentralisation has facilitated the growth of religious regulations and will outline the behaviour these regulations seek to control. It will analyse how these religious regulations are being implemented and enforced. Overall, it will demonstrate that religious regulations have discriminated against vulnerable groups such as women, children, the poor and religious minorities. The national government has failed to intervene because of the perceived need to maintain the support of the majority Muslim-voter base in a competitive political environment.

JFB

New Arrivals

The immigration lawyers arrived in PAP yesterday.  They're here to file emergency petitions on behalf of earthquake survivors who have relatives in the US.  They’re focusing on victims of sexual violence (yes, that again), and when I stepped out of my tent this morning there were dozens upon dozens of survivors standing in line behind those already waiting in the chairs we had set out the night before.   

It was 6:15 am.

It’s about 12 hours later, and I just got back from investigating reports of police violence and forced evictions in the camps.  The immigration lawyers are still here.  So are their clients.  And we still don’t have enough chairs.

-Kathleen Bergin

First Amendment Scholarship Update

Here is this week’s collection of articles addressing religion and speech topics:

1. Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School), Undoing Neutrality? From Separation to Tolerance in Establishment Clause Jurisprudence,  forthcoming in Willamette Law Review (2010).  The abstract states:

This essay argues that post-incorporation Religion Clause doctrine is the story of a long shift from a dominant norm of strict separation of church and state, to one of religious neutrality, to the brink of a new norm of “Judeo-Christian tolerance” - that is, a doctrine that permits special legislative protections for religious exercise, and that constitutionalizes civil religious practices like government references to deity, so-called “nonsectarian” government prayer, and other government-sponsored religious displays and symbols.

Nearly 50 years ago, Philip Kurland proposed a “religious neutrality” norm for the Religion Clauses. The Court did not take his advice; within a decade, the dominant Establishment Clause norm was the strict separation of church and state, though the special disabilities that separation imposed on religion under the Establishment Clause were balanced by constitutionally compelled exemptions giving special protection to religion under the Free Exercise Clause. Eventually, however, the Court shifted to religious neutrality as the dominant norm of both Religion Clauses, abandoning most of the special disabilities imposed by strict separation, as well as the special protections of religion afforded by exemptions.
Nevertheless, neutrality has remained the dominant norm only for Establishment Clause questions raised by the distribution of government benefits to religion. Neutrality has been substantially undermined by a statutory revival of religious exemptions that has reinstituted special protection for religious exercise, and by growing acceptance of government endorsement or appropriation of religious symbols and practices, so long as these do not entail coercion of belief.

The convergence of three doctrinal developments creates the possibility that tolerance might wholly displace neutrality as the dominant Establishment Clause norm, just as neutrality once displaced separation: the emergence of “acknowledgment” of religion as constitutionally permissible under the Establishment Clause, the Supreme Court’s elaboration of a “government speech” principle that may remove even religious government messages from First Amendment scrutiny, and the likely replacement of “endorsement” by “coercion” as the principal touchstone for measuring Establishment Clause violations.

2.  Rachel Delaney  (Marquette University - Law School), Defining Death: Why All Fifty States Should Adopt the Uniform Definition of Death Act with a Religious Exception.  The abstract states:

This article addresses the tension between the secular, American definition of death and the Jewish law definition of death. While the definition of death has been debated separately in both Jewish and American legal scholarship, the secular and Jewish law definitions of death have not been thoroughly analyzed in relation to one another. The secular definition of death - irreversible cessation of all functions of the entire brain - conflicts with the Jewish law definition of death - irreversible cessation of respiration. The conflict presents a First Amendment Free Exercise Clause challenge because state laws with strict secular definitions of death preclude Orthodox Jews from practicing Judaism in their final stages of life. This article argues that each state should adopt a definition of death statute that acknowledges the competing goals at issue in the legal definition of death - the recognition of the personal and private nature of death versus the accomplishment of secular and state objectives. New York State offers such a law by including a religious exception to the secular definition of death. Not only does the religious exception provide comfort to families in sad and serious times, but the exception is required by the First Amendment Free Exercise Clause and the right to privacy, and the exception does not significantly interfere with state interests.

3. Jonas Lerman ( UC Berkeley School of Law (Boalt Hall)), Voting Rites: Deliberative Democracy and Compulsory Voting in the United States.  The abstract states:

In recent years, a number of commentators from across the political spectrum have argued for U.S. adoption of laws that would require all eligible citizens to vote in every federal election. These commentators note that voting rates in the United States are lower than in any other major democracy, and that many other nations currently have compulsory voting laws. They are not just the repressive regimes one might imagine, but also dozens of open, progressive societies such as Australia, Belgium, and Costa Rica. Furthermore, compulsory voting laws enjoy strong popular support in these countries.

However, in making the case for importing compulsory voting to the United States, these proponents rely on a set of questionable assumptions and assertions: that other countries’ compulsory voting laws are in fact permitted under international law; that such compulsory voting laws achieve their intended, democracy-promoting goals; that if compulsory voting laws were to be adopted in the United States, they would pass constitutional muster and increase not just voter turnout but civic participation and interest; that those laws would comport with American notions about the meaning of democracy; and that the only reason we have not adopted compulsory voting laws is political unfeasibility.

This Article tests these assumptions and concludes that compulsory voting is incompatible with U.S. constitutional law and traditions. In addition to reviewing the traditional objections to compulsory voting, the Article advances four new or underutilized arguments against U.S. adoption of compulsory voting. First, compulsory voting violates core protections of international human rights law. Second, compulsory voting is incompatible with U.S. constitutional privacy protections. Third, compulsory voting laws would likely have the effect of quelling political dissent and restricting the means by which citizens can participate in political life – a violation of the First Amendment right to petition the government. Finally, compulsory voting is ineffective as a tool of democracy-promotion; there are more limited and more effective measures that the United States can and should adopt, short of compulsory voting, in order to increase election turnout and civic participation.

4. Arvind Ashta and Rosita De Selva  (Burgundy School of Business (ESC Dijon), France), Religious Practice and Microcredit: Literature Review and Research Directions. The abstract states:

Little work has been done in the conjunction of Microfinance and Religion. This paper explores the findings of the extant research. It then provides future research directions on a number of subjects within this broad area, available for researchers from a large number of fields: anthropology, theology, sociology, representations and systems of thought, development economics, finance, and business management.

5. Samreen Hussain (Indian Law Institute), Triple Talaq: A Socio-Legal Analysis, published in ILI Law Review, Vol. 1, No. 1, p. 130, 2010  The abstract states:

ISLAM, ONE of the greatest of world religions through the 1500 years of existence, has been by far the most misunderstood and misrepresented. The reason for this does not lie outside but it is only due to sheer ignorance of its own followers. The Prophet of Islam never thought that he was bringing a new religion, but that he was merely trying to reintroduce the old faith in the "One God‘ to the Arabs. It was basically a social reform movement brought about to teach the savage pagan Arabs the laws of humanity and to create a society where weak and vulnerable are treated with respect. The Prophet of Islam was indeed a social reformer, thinking far ahead of his time. The emancipation of women was a project dear to prophet‘s (PBUH) heart. According to Karen Armstrong, Muhammad was one of those rare men who truly enjoy the company of women. Some of his male companions were astonished by his leniency towards his wives and the way they stood up to him and answered back. This paper analyses various issues relating to Triple Talaq.

6. Carmel Ullman Chiswick (University of Illinois at Chicago - Department of Economics),  Egalitarian Religion and Economics.  The abstract states:

The role of women in the ritual of many religions changed dramatically at the end of the 20th century, to the point where full participation by women was the norm by 2000 rather than the rarity that it had been 30 years earlier. This paper considers some aspects of the economic context that help explain why the movement toward egalitarianism succeeded in that period in contrast to its many previous failures. It concludes with predictions of future trends.

7. Ermanno Pavesi ,Pastoral Psychology as a Field of Tension between Theology and Psychology, 16 Christian Bioethics  9 (2010).  The abstract states:

Ever since its beginning, Christianity ascribed an important role to care for bodily and psychic suffering. Up to modernity, psychological assistance was closely connected with theology. In modern times, philosophy and theology began to distance themselves from metaphysics and transcendence, thus opening the path for a purely psychological interpretation of religion and of religious life (cf. Kant, Schleiermacher). The founders of important psychological schools (Sigmund Freud, Carl Gustav Jung, Erich Fromm, Fritz Perls, and Carl Rogers) offered purely naturalistic interpretations of the human condition and discounted transcendence. Today, pastoral psychology is situated in a field of tension between a purely naturalistic psychology and openness to a spiritual dimension and to man’s vocation for transcendence. What those recent psychological schools contribute is important for a deeper understanding of man, but it remains merely partial as long as his spiritual dimension is disregarded.

8. Corinna Delkeskamp-Hayes, Pastoral Versus Psychological Counseling in Bioethics, 16 Christian Bioethics 1 (2010).  The abstract states:

This introduction discusses the various respects in which the turn to psychotherapy and psychology in pastoral counseling touches on issues of bioethics (as the content of such counseling) and medical morality (insofar as the spiritual dimension addressed in pastoral care impacts the medical condition of those cared for, and the various kinds of psychotherapy relate to the therapy offered by medicine). A short characterization of each essay contained in this issue of Christian Bioethics highlights the major subjects on which these essays agree and disagree. These subjects concern the significance of psychotherapy and psychology for (1) reaching out to parishioners who are estranged from the church, (2) criticizing religion as a whole, and (3) remedying certain distortions for which pastoral care and counseling have been criticized in some Christianities. Problems that arise from the incompatibilities between different sorts of theological and psychological accounts of human flourishing and their suggested solutions are considered. The introduction, then, concludes by briefly discussing the different understandings of tradition and church that inform the various post- and extra-Enlightenment positions adopted by the authors.

9. Margaret Thornton and Trish Luker (Australian National University (ANU) - College of Law and The University of Queensland), The Spectral Ground: Religious Belief Discrimination, 9 Macquarie Law Journal  71 (2009).  The abstract states:

This paper considers the ground of religious belief under anti-discrimination law and argues that it is a spectral ground. While discrimination is proscribed in the same way as other grounds, religious belief is never defined; it merely has to be ‘lawful’, which is also not defined. While the proscription emerged from an official commitment to state secularism, in addition to tolerance and diversity, its permeable character allows mainstream Christianity, neoconservative fundamentalism and other variables to seep into it. An analysis of discrimination complaints shows how this occurs metonymically through proscribed grounds, such as sex, sexuality, ethnicity and race. The phenomenon is most marked post-9/11 through what has come to be known as ‘Islamophobia’. The proscription of religious vilification and incitement to religious hatred, which takes discrimination on the ground of religious belief to a new plane, further reveals the tendency of the spectral ground to absorb prevailing political influences.

10. 3. Hussein Alasrag  (Ministry of Trade and Industry, Egypt), The Role of the Waqf Institution in Achieving Economic Security (Arabic).The abstract states:

Waqf (endowment) is one of the most important institutions in the Islamic religion. Waqf has many dimensions, religious, social, economic, cultural and humanitarian. This institution embodies the tolerance , generosity , solidarity and interdependence among people. Furthermore, the activity of the Waqf covered all aspects of social life. also provides the basic needs of the poor, such as clothing, food, shelter and provide a number of public goods and services such as education and health. Therefore this reflected directly in achieving economic security. This research aims to study the role of the institution of waqf in achieving economic security.

11. Mark L. Movsesian (St. John's University School of Law), Elusive Equality: The Armenian Genocide and the Failure of Ottoman Legal Reform,  forthcoming in University of St. Thomas Journal of Law & Public Policy.  The abstract states:

This essay, prepared for a symposium on legal aspects of the Armenian Genocide, addresses the treatment of the Armenian community in Ottoman law. For most of its history, the Ottoman Empire adhered to classical Islamic law, which viewed Armenians and other Christians as dhimmis – formally protected, but legally subordinate, minority communities. The nineteenth-century Ottoman reform movement known as the Tanzimat granted dhimmis legal equality for the first time. Equality for dhimmis subverted the traditional social hierarchy and sparked a religious backlash, including the Hamidian massacres of 1894-1896, which killed hundreds of thousands of Armenians and other Christians. The Hamidian massacres in turn initiated a cycle of violence that led eventually to genocide. Although the Tanzimat did not itself cause the Armenian Genocide, the failure of legal reform, and the resentment that equality for religious minorities created in Ottoman society, were important contributing factors.

12. Douglas NeJaime  (Loyola Law School Los Angeles), New Entrants Bring New Questions, 19  Law & Sexuality 181 ( 2010). The abstract states:

This short essay comments on the future of LGBT scholarship. The mainstreaming of LGBT equality norms brings with it an increased presence of new actors. Aligned with the LGBT movement, government lawyers and private non-movement lawyers now invest heavily in LGBT rights litigation. Opposed to the LGBT movement, Christian Right organizations devote substantial time and money to fighting LGBT equality. These new investments pose significant new questions for sociolegal scholars: How do the changing relationships of state actors to the LGBT rights and Christian Right movements influence how each movement uses elite support to bring about social change? How do government lawyers negotiate their roles as public lawyers and cause lawyers? How do movement lawyers respond to loss of control at the hands of supportive elites? How does analysis of the Christian Right/LGBT rights movement/countermovement relationship complicate established theories of legal mobilization? At the same time that the presence of Christian Right organizations poses fascinating questions for sociolegal scholarship, it also turns attention to important questions at the intersection of sexual orientation nondiscrimination and religious liberty: How will religious exemptions carve out exceptions to LGBT rights? How should religious free exercise and expressive association affect the meaning of sexual orientation nondiscrimination? What similarities can we observe between religious and LGBT identities? And how can we clearly articulate LGBT equality norms and yet respect and accommodate sincere religious objections? These questions point to just some of the pressing issues that scholars should address in the years to come.

13. Melissa Crouch (University of Melbourne), Religious Regulations in Indonesia: Failing Vulnerable Groups?, 43 Review of Indonesian and Malaysian Affairs --- (2009).  The abstract states:

Since 1998 and the downfall of Suharto, local governments across Indonesia have passed a range of religious regulations, commonly known as perda syariah. This paper is based on analysis of over 160 religious regulations from 26 provinces in Indonesia. It will examine how the transition to decentralisation has facilitated the growth of religious regulations and will outline the behaviour these regulations seek to control. It will analyse how these religious regulations are being implemented and enforced. Overall, it will demonstrate that religious regulations have discriminated against vulnerable groups such as women, children, the poor and religious minorities. The national government has failed to intervene because of the perceived need to maintain the support of the majority Muslim-voter base in a competitive political environment.

14. Jeremy Kidd, ‘I Do, I Do, I Do': Why the Constitution Should Protect Religious Polygamists.  The abstract states:

The practice of polygamy, or plural marriage, is illegal in every one of the United States. Nevertheless, those who practice polygamy based on religious belief may be entitled to a religious exception to otherwise applicable laws outlawing polygamy, due to the Free Exercise Clause of the First Amendment. The Supreme Court has essentially relegated the right of Free Exercise to second-tier status, but has done so without support from the text or history of the Constitution. Restoring the right of Free Exercise to its proper place leads to the conclusion that the right protects those who practice polygamy for religious purposes. State action can legitimately reach otherwise criminal behavior within polygamous communities, but the practice of polygamy, itself, is beyond the reach of government, insofar as the motivation for the practice is based in religious belief.

15. R. Randall Kelso  (South Texas College of Law), Modern Moral Reasoning and Emerging Trends in Constitutional and Other Rights Decision-making Around the World.  The abstract states:

Moral reasoning refers to an effort to identify how persons ought to behave and what ought to be. Sometimes in philosophy this has been referred to as a search for “the good.” Of course, ideas on what is good have differed from one society to another and have changed from time to time within individual societies. At all times, however, the question of the morality of “egotism” or “self-interest” has been central to the debate. Explicit acknowledgment of this fact, and the triumph of non-egocentric modes of moral reasoning in the modern world, can help explain current moral and legal reasoning by constitutional courts and other actors around the world.

In pursuit of this explanation, this article discusses traditional views on the morality of egocentric versus non-egocentric thought, with non-egocentric thought based on a requirement of giving all individuals equal concern and respect, phrased in religious terms as love of neighbor as thyself. The article then notes the emerging trend among constitutional courts and other actors around the world to adopt the non-egocentric moral principle of equal concern and respect as the basis for moral and legal decision-making. This is done in the context of equal protection law, particularly rights of gender equality; autonomy interests, including respect for diverse views as long as they do not trample on the diversity rights of others; economic rights; and review of government criminal and administrative action. Finally, the article discusses the modern explication for the rationality of adopting non-egocentric thought as the basis for moral reasoning.

16. Yehezkel Margalit  (Ono Academic College), Freedom of Contract in Halakhic Family Law? - A Comparison of the Babylonian Talmud and the Palestinian Talmud. The abstract states:

Recently we are witness to a growing interest in nuptial agreements, both in Jewish and civil law. In civil law it is customary to trace the “meta-story” of the development of civil family law from sacrament to status and from status to contract.1 Indeed, during the last fifty years we have seen how nuptial agreements developed to regulate different aspects of marriage in civil law, both in Israel and in the rest of the world.2 During the last twenty-five years an interest has also emerged in halakhic perspectives on “freedom of contract,” which is available for couples who wish to marry according to Jewish law. Thus, the couple can make conditions which will regulate economic relations during their marriage and in the event of the breakdown of the family through divorce or through the death of one of the spouses. These halakhic agreements are generally referred to as “prenuptial agreements.” These agreements are intended mainly to reduce the number of cases where the husband refuses to give his wife a get (religious divorce) by imposing monetary fines on a recalcitrant husband (or wife), to ensure that the partner opposed to a divorce will not be able to prevent the other partner from going through with the divorce.

17. Lucia Ann Silecchia  (Catholic University of America - Columbus School of Law), Integrating Catholic Social Thought in Elder Law and Estate Planning Courses: Reflections on Law, Age and Ethics, forthcoming in Villanova Journal of Catholic Social Thought. The abstract states:

A course in elder law or estate planning encompasses many of the most profound issues that arise in human life: the contemplation of mortality, ambivalent attitudes toward property and its proper distribution, complexities in family relationships, obligations to support loved ones, anticipation of physical or mental challenges, and reflections on one’s desired legacy to loved ones. Although there is much in the Catholic tradition and in the Scriptures themselves that speaks to these questions in an indirect way, this has not often been fully explored because this field may not, on its face, have an obvious connection to religious tradition. However, I believe that there are two distinct areas in which teachers in this field may draw on core principles of Catholic social thought to deepen the understanding that they and their students might have about these rich connections.

The first part of this article will explore how attorneys can find guidance from Catholic social thought on issues that may arise as they advise individual clients on estate matters. Here, notions of responsible stewardship, familial obligations, the proper formation of one’s legacy, and medical planning raise important ethical questions at the individual level, as attorneys assist clients in developing their estate plans. In addition, my reflections in this first part will address the ways in which elder law practice provides a unique setting for law practice as a form of ministry. Unfortunately, lawyers engaging in elder law and estate planning practices are frequently and disproportionately the subject of serious ethical charges, given the temptations that they face and the particular vulnerabilities of those they serve. Thus, in this discussion of the representation of individual clients, I hope to reflect on what Catholic social thought may bring to the attorney’s understanding of the professional role.

The second part will present broader and more general questions about public policy toward the elderly—questions that can be the basis for much fruitful discussion in estate planning or elder law courses. It is often noted that the elderly are the largest growing segment of the American and global populations. Thus, the second section of this article will offer brief reflections on how Catholic social thought may contribute to some of these broader public policy discussions as our society considers how best to meet the needs of our elders. Although this article will not attempt to arrive at easy answers to any of these dilemmas, it hopes to begin reflection on them and to offer some ways of thinking about how Catholic social thought may offer some guidance in these complex areas of human life.

18. Joseph A. Tomain (University of Louisville Brandeis School of Law), Cyberspace is Outside the Schoolhouse Gate: Offensive Online Student Speech Receives First Amendment Protection, 59  Drake L. Rev. --- (2010).  The abstract states:

Doctrinal and normative analyses show that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.
On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus; one of these cases may be heard en banc. Another case addressing this same issue is currently pending before the Second Circuit. This article provides in-depth analysis on all three cases as well as associated case law.

Specifically, the article focuses on one of the four Supreme Court student speech rulings, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). In Fraser, the court held that a school may discipline a student for giving a lewd and indecent speech at a mandatory school assembly. Fraser created an exception to the Court’s seminal student speech case, Tinker v. Des Moines Area School District, 393 U.S. 503 (1969). Tinker required a substantial disruption of the school environment before a school could punish student speech. Fraser did not require a substantial disruption because the student gave a speech filled sexual innuendo before a captive school audience.

Lower courts struggle with whether Fraser applies to offensive online speech. On February 4, 2010, one Third Circuit panel affirmed the district court by holding that Fraser does not apply to online speech. On the same day, a different Third Circuit panel declined to analyze Fraser, even though the district court upheld a school’s decision to discipline a student under Fraser. Instead, that Third Circuit panel upheld the punishment under Tinker. While not creating an express intra-circuit split, these decisions do not resolve the uncertainty as to whether Fraser applies to online student speech. The case pending before the Second Circuit will address Fraser because the certified question is whether “a school may discipline a student for inappropriate comments made off campus on a blog.”

The rule articulated in this article is that Fraser does not apply to offensive online student speech, regardless of whether it is created or accessed on or off-campus. This rule is supported by doctrinal analysis of Fraser and its progeny. The article also provides normative support for this rule under self-realization theory. Self-realization theory is influential in our Supreme Court’s First Amendment jurisprudence and was most recently invoked in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 972 (Jan. 21, 2010) (Stevens, J., dissenting). Because of conflicting lower court decisions, the issue of online student speech rights will likely reach the United States Supreme Court. Through doctrinal and normative analysis, this article illustrates the importance of limiting school jurisdiction over online student speech to protect First Amendment rights of minors and others.

19. Angela Daly (European University Institute - Department of Law), The Internet, and Rationales for Free Expression. The abstract states:

The changes to society brought by the Internet have prompted a challenge to orthodoxy in a number of areas of law, Intellectual Property being a notable example. Human rights, especially those related to information, knowledge and ideas, have been drawn into this re-evaluation, with various issues being encountered in practice demanding solutions that accord with respect for rights and freedoms, and with the functioning of this new technology. Nevertheless, the theoretical aspect of human rights in the Internet context has not been so much addressed. The Internet has implications for how rights are conceived, especially the freedoms of speech and expression. This study is an examination of whether the existing rationales for free speech and expression still apply in the context of cyberspace. These rationales, coming mainly from court decisions (in particular, the US Supreme Court) as well as the academic literature (notably Cass Sunstein's work), will be examined, alongside observations about the state of play in the Internet, with Yochai Benkler's elaboration of the development of “commons-based peer production” initiatives being of particular relevance. If indeed the Internet is significantly different from previous communication technologies, then this may require a different approach to how the Internet is regulated, including in order to promote and maintain free speech and expression.

20. Solveig M. Singleton, Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector.  The abstract states:

This paper considers the basic arguments underlying many proposals to regulate information about consumers to require notice and consent before information is collected or used. The paper considers the conflict between such privacy or data protection rules, and rules that maintain free speech and the freedom of information, according to which facts, information, and opinions circulate with few restraints. The paper notes the ways in which businesses and consumers, particularly start-ups, can benefit from the circulation of consumer information in the economy. The paper concludes that top-down privacy mandates make little sense and can harm consumers and economic growth.

21. Tarleton L Gillespie (Dept. of Communication, Cornell University), The Politics of 'Platforms', published in New Media & Society, Vol. 12, No. 3 (2010). The abstract states:

Online content providers such as YouTube are carefully positioning themselves to users, clients, advertisers, and policymakers, making strategic claims as to what they do and do not do, and how their place in the information landscape should be understood. One term in particular, 'platform,' reveals the contours of this discursive work. 'Platform' has been deployed in both their populist appeals and their marketing pitches - sometimes as technical platforms, sometimes as platforms from which to speak, sometimes as platforms of opportunity. Whatever tensions exist in serving all of these constituencies are carefully elided. The term also fits their efforts to shape information policy, where they seek protection for facilitating user expression, yet also seek limited liability for what those users say. As these providers become the curators of public discourse, we must examine the roles they aim to play, and the terms with which they hope to be judged.

22.  Charles D. Kelso (University of the Pacific (UOP) - McGeorge School of Law) and and R. Randall Kelso ( South Texas College of Law), The Constitutional Jurisprudence of Justice Kennedy on Liberty. The abstract states:

In this article, we describe how the concept of constitutionally protected liberty has been developed and applied in Justice Kennedy’s opinions. As we discuss, Justice Kennedy’s vision of liberty embodied in the Constitution seems to derive from an understanding of 18th-century Enlightenment philosophy, based on writers such as John Locke and Adam Smith, as developed in the 19th century by writers such as John Stuart Mill. In pursuit of this understanding, Part II of this article discusses the Enlightenment concept of liberty. Part III then shows how that doctrine is reflected in the reasoning of opinions written by Justice Kennedy, with specific reference to cases involving freedom of speech, individual autonomy, individual liberty versus government liberty, and international views on liberty. Part IV addresses other aspects of a natural law theory of interpretation – text, context, history, legislative and executive practice, precedent, and prudential considerations – that limit full elaboration of this concept of liberty in specific cases. Part V provides a brief conclusion.

23. Darcy K. Leach (Boston College - Department of Sociology) and Sebastian Haunss (University of Konstanz - Department of Politics and Management),  Wichtig Ist Der Widerstand: Rituals of Taming and Tolerance in Movement Responses to the Violence Question. The abstract states:

In comparison to the amount of attention it gets in the mainstream media and in activist discussions, the question of how movements resolve “the violence question” has been virtually ignored by movement scholars. Within social movements, whenever protesters participate in “violent” actions, public and private recriminations fly about who “started it,” whether or not it was justified, and whether and how disapproving parties should present their views in the press. Before, during, and after the action, moderate and nonviolent civil disobedience groups engage in a variety of “taming” rituals designed to discourage, de-escalate, and/or punish the use of violence as they define it. Some movements, however, have begun resolving this internal dilemma in a new way: rather than the one side trying to “tame” the other, rituals and frames of tolerance and solidarity have been constructed that allow them to work together more effectively, despite their differences. By examining interactions between the German Autonomen and the German nonviolence movement we asks in this paper: Under what conditions are militant and nonviolent factions able to construct common frames and rituals about violence that encourage tolerance and even celebrate different tactical approaches, and when do they interact with mutual animosity, noncooperation, and obstructionism? To address this question, we examine two instances of interaction between the Autonomen and the nonviolence movement in Germany - one in which they constructed rituals and frames of tolerance and worked together fairly successfully (in the actions against a nuclear waste transport in the “Free Republic of Wendland” in March of 2001) and one where they were unable to resolve their differences and engaged in taming rituals, including fierce public denunciations and in-fighting (in the riots on June 2, 2008 during the anti-G8 protests in Rostock). Drawing on field notes from participant observation and extensive media discourse analysis we identify several factors that influence the activists’ choice between taming and tolerance. We can show that face-to-face interaction of different movement factions in the run-up of protests only leads to tolerance under specific conditions, of which the experience of previous and the expectation of further collaboration are most important, whereas the range of actors and their breadth of the represented political spectrum only play a secondary role.

25. Saadiya Suleman, Freedom of Religion and Anti Conversion Laws in India: An Overview, published in ILI Law Review, Vol. 1, No. 1, p. 106, 2010  The abstract states:

Indian constitution stands on the bedrock of secularism though nowhere in the original constitution the word secularism‘ was mentioned. Indian political circuit, in recent times has seen the dirtiest forms of politico-religious quagmires. With five states of the Indian Union making laws regulating religious conversions in a span of seven years, adding to existing three state laws, and palpable apprehension in the atmosphere could well be sensed. It is to be noted here that anti conversion laws are not a new phenomenon and though they have become more politicised and negatively publicized after the series of new state legislations they were very much in existence even prior to Independence.

JFB

First Amendment Scholarship Update

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

1) Daphne Barak-Erez (Tel Aviv University - Buchmann Faculty of Law), Law and Religion Under the Status Quo Model: Between Past Compromises and Constant Change, 30 Cardozo L. Rev.2495 (2009). The abstract states:

Among the different approaches to the regulation of the legal status of religion, it is worthwhile to study the Israeli experience, traditionally depicted as based on a decision not to decide - that is, on preserving an existing status quo that acknowledges the priority of religious demands in some areas in a way that reflects a social-political compromise rather than a principled decision-making. This approach has been labeled the “status quo” model. The practical meaning of accepting the status quo model was supposed to be refraining from changing the compromises that had been crystallized in the early days of Israel. This abstention was planned to apply to all forms of law-making - either by legislation, administrative decisions or judicial decisions. This Article will look into the practice of the status quo regime and will argue that in fact, contrary to its reputation, the status quo was ever-changing, and in this respect does not represent a workable compromise anymore.

Following this introduction, Part I of this Article describes the basic arrangements of the status quo in its formative years. Part II analyzes the conditions that shaped the status quo and enabled it to function. Part III describes the changes that the status quo has gone undergone, exposing it as a particularly unstable regime. Part IV analyzes the processes that transformed the application of the status quo, and the institutional mechanisms through which they were implemented. Part V continues this analysis by evaluating the impact that judicial review had on both the preservation of the status quo and the changes introduced to it. The Article ends with reflections on the viability of adopting a status quo model for the regulation of religion within a constitutional regime.

2)  Brian Schmalzbach, Note -Confusion and Coercion in Church Property Litigation, 96 Va. L. Rev. 443 (2010). The abstract states:

This Note argues that by allowing states to apply their own idiosyncratic common and statutory law to disputes over church property between supercongregational denominations and local parishes, the “neutral principles” approach that the Supreme Court validated in Jones v. Wolf inevitably creates inconsistency in the results of these disputes. This inconsistency in turn coerces denominations such as the Protestant Episcopal Church and the United Presbyterian Church into abandoning either their method of property management or traditional control over parishes. In effect, mainline supercongregational Protestant denominations are forced, in violation of their Free Exercise right to choose their own form of governance, to become either more “Catholic” or more “Baptist.” As a remedy to this problem, this Note proposes a novel solution—a federal statute to standardize and simplify the decision rules for church property disputes. Although such a statute would raise constitutional issues of its own, this Note concludes that such a statute would be within Congressional jurisdiction and permissible under both the Establishment Clause and the Free Exercise Clause.

3) Jonathan Salzinger (Washington University in St. Louis), Baruch Spinoza and Moses Mendelssohn: Jewish Philosophies of the State, Religion, and Individual , published in Enquiry (Spring 2010). The abstract states:

Although they lived in different times and under different circumstances, Spinoza and Mendelssohn both saw the need to examine the relationship between the state and individual religious belief as the character of Europe changed. Both men envisioned a society governed by a social contract between citizens, absent of civil or coercive authority held by religious powers, with individual religious freedom. Spinoza, however, cast aside Mosaic Law and forged a secular vision for future European life, based upon universal “natural laws.” Mendelssohn differed from Spinoza in this respect; he viewed Mosaic Law as remaining valid because it contains eternal truths that make Jews unique and believed that Jews should be continue to be observant but not let that stop them from interacting with European society. Both Spinoza, who was excommunicated from the Jewish community, and Mendelssohn, who had his religious beliefs publicly challenged on several occasions, faced deep criticism for their views from the Jewish community and their non-Jewish contemporaries. However, the models that they conceived for the state and its relationship to individual religious belief have provided a lasting impact on political and religious philosophy.

4) Bryan Thomas ,Review of Ngaire Naffine, Law’s Meaning of Life: Philosophy, Religion, Darwin and The Legal Person. The abstract states:

In Law’s Meaning of Life, Ngaire Naffine pursues the question, ‘Who is Law For?’. In this critical review, I argue that the question is ill-formed, as the law’s conception the person rightly varies from one context to another. I further argue that answering questions about the nature of persons would not help us to resolve pressing ethical and legal dilemmas. Naffine portrays a variety of prominent theorists (e.g., Ronald Dworkin, Peter Singer, John Finnis) as disagreeing incommensurably on the nature of personhood. I challenge her reading of these thinkers, showing, inter alia, that Dworkin eschews theorization about personhood, and that Singer wishes to extend moral and legal consideration to non-persons. In so doing, I show that their views are commensurable.

5) Alexander De Juan (University of Tuebingen) and Johannes Vüllers (German Institute of Global and Area Studies), Religious Peace Activism - The Rational Element of Religious Elites' Decision-Making Processes. The abstract states:

Religious elites are active for peace in many violent conflicts. Normative explanations often do not suffice to explain their engagement. In this paper we draw on the findings of social‐movement research to identify the factors that induce rationally acting religious elites to be active for peace. It is their relationships to the government, other religious elites, and believers that can motivate them to call for peace. However, they will do so only if they anticipate - based on the overall influence of other religious peace (co‐)activists, the structure of the religious community, and the frame environment - that they will not be penalized for their engagement. Religious norms are an important motivation behind religious peace activism, but rational decision‐making also has to be taken into account if religious engagement for peace is to be explained fully.

6) Daniel J. Benjamin (Cornell University - Department of Economics), James J. Choi (Yale School of Management), and Geoffrey Fisher,  Religious Identity and Economic Behavior, NBER Working Paper No. w15925. The abstract states:

Although many scholars (e.g., Weber, 1930) have hypothesized that religious identity norms affect economic outcomes, empirical tests have been hampered by the difficulty of identifying exogenous variation in religion. We create exogenous variation by randomly varying religious identity salience in laboratory subjects. The marginal effect of religious identity is the change in subjects’ choices when religion is salient. We test six hypotheses from prior literature. We find that Protestantism increases contributions to public goods. Catholicism decreases contributions to public goods, decreases expectations of others’ contributions to public goods, and decreases risk aversion. Judaism increases worker reciprocity in a bilateral labor market gift-exchange game. We find no evidence of religious identity effects on disutility of work effort, discount rates, or generosity in a dictator game.

7) Ronna Greff Schneider (University of Cincinnati - College of Law), God, Schools, and Country, 30 Human Rights Quarterly 797(2008). The abstract states:

This article reviews Bruce J. Dierenfield's book The Battle over School Prayer: How Engel v. Vitale Changed America. Professor Dierenfield provides thoughtful insights into the often contentious mixture of religion and public education in the United States and puts the 1962 Supreme Court case of Engel v. Vitale in historical context. The book reads both like both a history text and a novel, and therein lies both its uniqueness and strength. The author provides his reader with an understanding not only about the law at issue, but about the people whose personalities and circumstances will largely affect the contours of that law.

8) Heather Ann Hillsburg, Protecting Children’s 'Best Interests': Mature Minors, Faith and Canadian Jurisprudence. The abstract states:

Jehovah’s Witnesses are consistently marginalized within the Canadian legal system. This discrimination is particularly noticeable in cases involving children such as child custody battles, as well as in the language used at law to describe the Witness religion. Children are characterized at law as “choosing” mainstream religion, whereas Witness elders “coerce”, “force” or “inculcate” children into a religion that will ultimately harm them. The biases within this language played a key role in the 2009 A.C. v. Manitoba decision. In this case, the court rules that a 15 year-old girl suffering from Crohn’s disease was ordered to undergo a blood transfusion against her will. The court grounded its decision in sections 25(8) and 25(9) of the Canadian child and family services act, stipulating that a child could be subjected to medial treatment that doctors deemed to be in their “best interests”, and that a child under the age of 16, unless deemed to be a mature minor by psychiatrists, could not make their own medical decisions. While psychiatrists decided that A.C. was a mature minor, the court overruled these findings. A.C. challenged the decision on the grounds that sections 25(8) and 25(9) of the Child and Family Services were arbitrary and discriminatory, but was ultimately forced to undergo a blood transfusion.

In this essay, I will draw from child custody cases to illustrate that “choosing” one’s religion used as a marker of maturity at law. The language of “force” and “coercion” used to depict Witness teachings constructs Witness children as incapable of critically choosing their own faith. As a result, any medical decisions informed by Witness beliefs are the result of “brainwashing” rather than of maturity or sound decision-making. Consequently, the doctrine of mature minor is not extended to Witness children in Canadian law.

9) Mag Jerusalem W. Negash (Äthiopisch-Österreichische Frauensolidarität) and Wondwosen Teshome-Bahiru (University of Vienna),The Culture of Accommodation and Tolerance: Christianity and Islam in Ethiopia , published in TRANS, Internet-Zeitschrift für Kulturwissenschaften, No. 17, 2010. The abstract states:

Ethiopia’s history has been marked by mutual respect and tolerance between Christianity and Islam, except a brief, but major conflict in the 16th century, and other minor incidents in the past ten years. The two main religions in Ethiopia, Orthodox Christianity and Islam have co-existed since the time of Prophet Mohammed. Christianity became the official religion of Ethiopia in the 4th Century A.D., and Islam had come to Ethiopia at the beginning of the 7th Century A.D., when a group of persecuted Muslims fled to northern Ethiopia from Arabia. The persecuted Muslims got a safe-haven in Christian Ethiopia and remained there until their country became peaceful enough to make their return possible. In the latter years, Ethiopia maintained its direct contact with the Muslim world through trade. Through time, many Muslim settlements emerged in Ethiopia, mainly along the trade routes. At present, Ethiopia’s population is almost equally divided between Christians and Muslims. Moreover, one of the holiest cities of Muslims, Harrar, is founded in the eastern part of Ethiopia.

The successive governments of Ethiopia was promoting this accommodation and resisted the politicization of religion in the country, contributing for the survival of the nation despite its poverty and the presence of more than 80 ethnic groups with different languages and various ethnic clashes. For many centuries, the primary focus of both Christian and Muslim Ethiopians was to maintain the nation’s independence and territorial integrity.

The paper tries to investigate how Christianity and Islam were introduced into Ethiopia and examines their past and present relations in the context of the current situation in the world.

In this paper, some examples of both aspects of the relations (peaceful coexistence and conflicts) will be examined critically. The paper suggests that a broad and thorough investigation has to be conducted in order to understand fully the core of this tolerant culture and the contributions of the mainly peaceful, Christianity-Islamic relation in Ethiopia, so that it could serve as an example for the rest of the world, which is threatened by so-called “clash of civilizations” at present, particularly after the incident of September 11, 2001.

10) Wolfgang Hein (German Institute of Global and Area Studies, Scott Burris (Temple University - James E. Beasley School of Law), and Clifford Shearing ,Conceptual Models for Global Governance. The abstract states:

Globalization has led to an appreciation of a global politics beyond the control of nation-states and the traditional system of international relations. Global politics is characterized by a pluralization of governance mediated by a constant effort to establish shared norms of global public goods and bads to constrain the exercise of power or, expressed in another way, to attain a more equitable access to power resources. Traditional state institutions of national and international governance have become more diversified as a reaction to their inherent limitations and the increasing power of new forms of governance built by private actors. Though the state remains a powerful, often dominant, actor in governance, it competes with and sometimes is itself governed by a diverse set of non-state actors, including corporations, foundations, religious groups, social advocacy organizations and ‘dark networks’, such as al-Qaeda or narcotics cartels. States and traditional institutions of international governance are increasingly seen as complex assemblages in and of themselves, comprised of more or less well-networked nodes operating somewhere on the spectrum between cooperation and competition. States have actively embraced this pluralization, seeking to increase or protect their power by vigorous use of governance devices such as privatization and partnerships.

These developments are clearly visible in the health sector, which has witnessed an institutional change from a structure that consisted primarily of independent national health systems and some international agencies devoted to controlling the cross-border effects of ill-health towards a system of global health governance (GHG). Contemporary GHG is characterized by a polycentric, distributed structure and a substantive concern with issues that affect populations worldwide directly (for example, the global spread of infectious diseases or antibiotic resistance) or indirectly (for example, political instability and global insecurity arising from extreme socio-economic inequality). Global health governance now requires management not merely of specific transborder epidemics, like SARS or avian influenza, but of the host of issues in health that arise at the intersection of a globalized economy and lives lived in particular localities. Dealing with ‘glocal’ health challenges increasingly requires attention not only to ‘horizontal’ coordination of global politics, but also to more effective vertical integration of global-level governance with governance at the national and local levels.

Both practitioners and students of health policy require new conceptual tools to understand and influence GHG. During recent years, two models have been developed that, from different perspectives, address these characteristics of multiplicity of actors, flexibility of institutional arrangements and fluidity of relationships. The ‘nodal governance’ framework builds on network theories to describe distributed governance and the ways in which institutions project power across networks to govern the systems they inhabit. The concept of ‘interface’, refers to ‘a specific space, where two different social systems or fields of social order interact (here: global/national systems; institutional systems related to modes of regulation), which are characterized by specific institutions and specific backgrounds. Independently, the concepts of nodal governance and interfaces can help us to understand what constitutes the binding forces and the types of power mobilized among the multitude of actors in global health governance. Taken together, they illuminate key challenges to good GHG: improving democracy, efficacy and coordination. This chapter uses these two frameworks to understand the emerging dynamics of GHG and then illustrate their usefulness through a discussion of the global governance of HIV/AIDS.

11) Aziz Z. Huq (University of Chicago Law School, Easterbrook on Academic Freedom, 77 U. of Chicago L. Rev. --- (2010). The abstract states:

Does the First Amendment to the US Constitution protect a distinct notion of “academic freedom?” Of late, courts and commentators have cast doubt on an individual First Amendment right of academic freedom. When federal courts have directed friendly attention to the matter, the result has been bromidic endorsement with scant analytic heft. The goal of this Essay is to identify an organizing principle for a constitutional jurisprudence of academic freedom. It could find inspiration in recent jurisprudence of Judge Frank Easterbrook. His cases invite a strategy of judicial protection of academic freedom by ensuring that legal or governmental action neither displaces, nor excessively burdens, the professoriat’s free exercise of professional judgment. The resulting constitutional norm of academic freedom would be an exercise in Burkean minimalism - aspiring to preserve a professional culture our society values and protects through constitutional precommitment.

12) Raphael Cohen-Almagor (University of Hull), In Internet's Way, published in ETHICS AND EVIL IN THE PUBLIC SPHERE: MEDIA, UNIVERSAL VALUES & GLOBAL DEVELOPMENT, pp. 93-115, Mark Fackler and Robert S. Fortner, eds., Hampton Press, 2010. The abstract states:

The Internet contests boundaries to free expression and enlarges the scope of tolerance. More than half a billion people worldwide use the Internet. It is a wonderful, easy-to-use mechanism to advance knowledge and learning across the world, to bridge gaps (educational, national, religious, cultural), and to promote understanding.This essay outlines some questionable forms of expression that exploit the Internet and then analyzes two main problems: child pornography and hate speech, noting the differences between the United States and Europe in addressing these questionable forms of speech. The Internet as such is not the problem. The problem is that there are vile people who exploit the wonders of the Net, and our liberal commitment to freedom of expression, by inflicting harm on children and disliked minorities. Recognizing the potential harm involved, and that in those two cases - pedophilia and hate - speech might translate into real harm, the chapter calls for open debate as to how to address those two concerns, for international cooperation in the battle against pedophilia and hate mongering, and for taking responsibility. Pedophile websites should be shut down. Hate sites that target specific individuals, calling for their murder, should not be allowed to operate. Liberal democracy should protect its vulnerable citizens, first and foremost children and minorities.

13) Chris Behan (Southern Illinois University at Carbondale - School of Law), Everybody Talks: Evaluating the Admissibility of Coercively Obtained Evidence in Trials by Military Commission, 48 Washburn Law Journal ---(2009). The abstract states:

Modern coercive interrogation techniques are devastatingly effective. Skilled interrogators can break even the most hardened subject by engaging in a concerted attack on his psyche. Notorious torture machines such as the rack or the iron maiden have been replaced by an ingenious system that relies on psychological coercion and self-induced physical pain to break a subject's resistance. Techniques such as sensory deprivation, stress positions, environmental manipulation, exploitation of individual phobias and weaknesses, attacks on cultural and religious sensibilities, or endless marathons of interrogation sessions eventually shatter the psychological walls that separate the will of the interrogator from the subject's ability to resist.

Given the effectiveness of coercive interrogation in extracting confessions and admissions, a question naturally arises concerning the evidentiary value and admissibility of this evidence at trial. This article specifically examines admissibility issues pertaining to this evidence in trials by military commission and suggests an analytical template for use in evaluating coercively obtained evidence at trial.

14) Alan E. Garfield (Widener University School of Law), Calibrating Copyright Statutory Damages to Promote Speech, forthcoming in Florida State University Law Review. The abstract states:

Copyright and the First Amendment exist in tension. The Supreme Court acknowledges this tension but says that copyright law resolves it with two built-in free speech safeguards: (1) by protecting only the expression of ideas and not the ideas themselves (the idea/expression dichotomy); and (2) by allowing the use of expression under certain circumstances (the fair use doctrine). The problem is that these doctrines are notoriously vague, so users often cannot know ex ante whether their uses will be immune from liability. This unpredictably might be tolerable if users could be confident that, if they were subject to liability, any damage award would be limited to a reasonable licensing fee or a share of profits attributable to the infringement. But copyright law allows plaintiffs to opt for statutory damages instead of compensatory or restitutionary damages, and statutory damages can sometimes be punitive and even grossly excessive.

This combined uncertainty – of not knowing whether a use will be immunized from liability and what the penalty will be if it is not – means that the idea/expression and fair use doctrines are underutilized. Yet if these doctrines are what resolve copyright’s tension with the First Amendment, they need to be sufficiently viable that users can confidently rely on them. One solution is to make the fair use and idea/expression doctrines more predictable, but this has proven largely illusory. Another is to modify the statutory damage regime to ensure that awards are better calibrated to not chill speech. This latter solution, which has not been methodically explored in the literature, is the focus of this article.

15) Samuel D. Brunson (Loyola University Chicago School of Law), Rethinking Public Charities and Political Speech. The abstract states:

In order to maintain their tax-exempt status, public charities are forbidden from campaigning for or against candidates for office. The ban originated in 1954, but was created from whole cloth, with no debate and no legislative history. As a result, it has been controversial, both as to its scope and as to its reason for existing.

Without understanding Congress’s intent in enacting the ban, we are left to debate whether the ban is effective, necessary, or even permissible. This Article argues that the justifications presented for the ban are not compelling, but neither are the arguments against the ban. In the meantime, the ban creates unnecessary complexity in public charities’ tax compliance, is not enforced in its current form, and may discourage taxpayers from fully complying with their tax responsibilities. In light of the harms that may result, this Article argues that we should have the debate that did not occur in 1954, in order to decide whether public charities need to be limited in their ability to campaign, what the scope of such limitation should be, and how it should be enforced.

16) Sara Slinn (Osgoode Hall Law School, York University), Captive Audience Meetings and Forced Listening: Lessons for Canada from the American Experience, Relations Industrielles/Industrial Relations, Vol. 63, No. 4, 2008. The abstract states:

Widespread adoption of mandatory representation votes and express protection of employer speech invite employer anti-union campaigns during union organizing, including employer-held captive audience meetings. Therefore, the problem of whether and how to restrict employers’ captive audience communications during union organizing is of renewed relevance in Canada. Captive meetings are a long-standing feature of American labour relations. This article considers how treatment of captive meetings evolved in the U.S., including the notion of employee choice; the “marketplace of ideas” view of expression dominating the American debate; and the central role of the contest between constitutional and statutory rights. It also considers the concept of “forced listening” and the associated Captive Audience doctrine in U.S. constitutional law and considers its possible application to captive audience meetings and the Charter definition of free expression. Finally, it offers suggestions about how Canadian labour law can benefit from lessons learned from the American experience.

17) Martin Senftleben (VU University Amsterdam, Faculty of Law), Overprotection and Protection Overlaps in Intellectual Property Law - the Need for Horizontal Fair Use Defences, published in HORIZONTAL ISSUES IN INTELLECTUAL PROPERTY LAW, UNCOVERING THE MATRIX, A. Kur, ed., ATRIP Conference 2009, Cheltenham: Edward Elgar Publishing 2010. The abstract states:

During the last decades, intellectual property protection has been expanded continuously. New technologies were found eligible for patent protection. New types of marks have been recognized in trademark law. Copyright law is no longer confined to the cultural domain. In parallel, the exclusive rights of IP owners have been broadened. The TRIPS Agreement provides for a comprehensive portfolio of patent minimum rights. The WIPO Copyright Treaty added new layers of protection to the standard reached under the Berne Convention. As a result of protection against dilution, trademark rights have become instruments for the exploitation of brand image.

Enhanced protection, however, gives rise to the question of appropriate counterbalances. Flexible rights are likely to require flexible limitations for at least two reasons. On the one hand, flexible limitations facilitate the task of maintaining a proper balance between protection and competing freedoms within individual protection regimes. On the other hand, flexible limitations can be employed to safeguard breathing space for unauthorized use when it comes to overlaps between different forms of IP protection. If an intellectual creation enjoys cumulative protection in different IP protection systems, a network of corresponding, flexible limitations ensures that the freedom offered in one system is not eroded through protection granted in another system.

The flexibility required within and across IP protection regimes may be provided by open-ended fair use provisions that allow the courts to develop and adjust IP limitations case-by-case on the basis of abstract criteria. Against this background, the paper explores the notion of fair use and identifies factors indicating a need for fair use solutions before embarking on a discussion of the situation in copyright, patent and trademark law. Drawing conclusions, protection overlaps will be considered.

18) Kate Sutherland (York University - Osgoode Hall Law School),The Impact of the Tort of Defamation on Public Discourse About Racism , 44 Supreme Court  Law. Rev 135  (2009). The abstract states:

Where once ascriptions of race gave rise to defamation suits, now it is allegations of racism that are apt to prompt legal action. On the one hand, it is gratifying to see validated in tort law the notion that allegations of racism lower individuals in the estimation of ordinary members of the public. On the other, the content, structure, and practical dynamics of defamation law give rise to concerns about the potential of such suits to suppress public discourse about racism. Defamation is an easy claim to make and a difficult one to refute. This should be of concern to anyone who values freedom of expression, particularly so when the statements sought to be suppressed through a defamation suit involve allegations of racism leveled against powerful individuals and organizations. When a doctrinal tilt in favor of plaintiffs is combined with unequal race relations, defamation law becomes a very effective means by which to intimidate equality seekers into silence. If, as a society, we are committed to rooting out racism, we must first have the freedom to name it. At present, the tort of defamation operates to compromise that freedom. Reform is required to better balance the important values that defamation law protects against the value of freedom of expression so as to encourage rather than suppress public discussion of racism.

19) Eric Talbot Jensen (Fordham Univeristy School of Law) and Geoffrey S. Corn (South Texas College of Law), The Obama Administration’s First Year and IHL: A Pragmatist Reclaims the High Ground, forthcoming in Yearbook of International Humanitarian Law. The abstract states:

President Obama’s first year in office can be defined by two words: pragmatism and commitment. His pragmatism is reflected in the decision to continue to pursue the armed conflicts against transnational terrorism, and his refusal to abandon the legal and policy positions of his predecessor that lodge that struggle squarely within an armed conflict paradigm. His commitment is reflected both in his decision to continue the armed struggle against transnational terrorism, and in the actions he has taken to demonstrate US commitment to fundamental humanitarian principles of the law, and to abandon the policy of legal exceptionalism that defined his predecessor’s ‘authority without obligation’5 interpretation of the law as it applied to this armed conflict. Any doubt about these dual pillars of his approach to transnational terrorism was eliminated when he delivered his Nobel acceptance speech. In that speech, he challenged the international community to accept the continuing need to meet the threat of transnational terrorism with military force. However, he also emphasized that maintaining the moral high ground in the conduct of hostilities – even when confronting an immoral opponent – is at the very core of the American military tradition.

This essay will review what the authors consider the President’s most significant humanitarian law related decisions during his first year in office. It will focus on six major aspects of international humanitarian law: 1) the definition of enemy combatant; 2) detainee judicial review; 3) military commissions; 4) self help measures in self-defense; 5) fundamental guarantees under customary international law; and 6) the US position vis a vis the International Criminal Court.

Correction from last week's First Amendment Scholarship Update - Religion: The listing for Adam Schwartzbaum (University of Pennsylvania Law School), The Niqab in the Courtroom: Protecting Free Exercise in a Post-Smith World, was erroneously identified as forthcoming as a Comment in the University of Pennsylvania Law Review.  The working paper should be listed as submitted but not yet accepted for publication. Apologies for the mistake.    

JFB