First Amendment Law Prof Blog

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:
 
1. Rony Guldmann (James C. Gaither Fellow, Stanford Law School), Beyond the Jurisprudence of American Exceptionalism on the Impossibility of the Establishment Clause. The abstract states:

It is a well known lament of conservatives that the intellectual classes have, through the courts alongside other means, instituted a regime, perhaps a religion, of secularism or secular humanism, the advancement of which is predicated upon the disparagement of traditional religion and its devotees. While some liberals would agree that the courts have at times been insufficiently sensitive to the nature and needs of religion, the liberal instinct is to dismiss as extravagant these more robust claims to the effect that the public schools have been infiltrated by an evangelizing, quasi-conspiratorial secular humanism, or that the Establishment Clause has become a tool of oppression operating surreptitiously in the service of this and other plots.

To these claims, secular liberals respond that, assuming some sense can be given to the notion of a secular religiosity, this is a label best reserved for countries like Turkey or France, which have sometimes directly suppressed certain forms of religious self-expression, like the wearing of headscarves. But since such policies and the attitudes underlying them would never be tolerated in the United States, warnings about the encroachment of an ideological secularism are dismissed as merely another iteration of conservatism’s politically expedient false populism.

But these dismissals are, I argue, facile. For doctrinal disagreements about what qualifies as genuine religious neutrality – as opposed to, say, “hostility toward religion” or a “religion of secularism” – are necessarily a function of a broader set of philosophical and historical disagreements concerning whether secularity is best conceived as the bare elimination of religion – what Charles Taylor calls “subtraction stories” – or instead as the outgrowth of – as the secularization of – particular religious traditions, which, though having become secularized, retain an underlying religiosity. Conservative grievances about the surreptitious encroachment of “secular humanism” or a “religion of secularism” become more intelligible when interpreted against the backdrop of this second theory of secularity, which casts the case law in a different light than does the first.

2. Alexander Tsesis (Loyola University Chicago School of Law), Preserving Tolerance While Remaining True to the First Amendment. The abstract states:

In the face of mounting campus anti-Semitic incidents in the U.S., college and university administrators are left with the quandary of how to prevent anti-social behavior without running afoul of the First Amendment protections of free speech. The Supreme Court’s recent decision in Virginia v. Black, opens a door to resolving that dilemma. Free speech has never been considered an absolute right, with multiple laws from copyright, to defamation, and trademark laws providing examples of permissible limitations on expression. Likewise fighting words can be prohibited both at universities and other public places.

3, Martin R. West and Ludger Woessmann  (Brown University and Ifo Institute for Economic Research), ‘Every Catholic Child in a Catholic School’: Historical Resistance to State Schooling, Contemporary Private Competition and Student Achievement Across Countries , published in The Economic Journal, Vol. 120, Issue 546, pp. F229-F255 ( August 2010). The abstract states:

Nineteenth-century Catholic doctrine strongly opposed state schooling. We show that countries with larger shares of Catholics in 1900 (but without a Catholic state religion) tend to have larger shares of privately operated schools even today. We use this historical pattern as a natural experiment to estimate the causal effect of contemporary private competition on student achievement in cross-country student-level analyses. Our results show that larger shares of privately operated schools lead to better student achievement in mathematics, science and reading, and to lower total education spending, even after controlling for current Catholic shares.

4. Siobhan Mullally, Civic Integration, Migrant Women and the Veil: At the Limits of Rights?, forthcoming in Modern Law Review.The abstract states:

Recent years have witnessed a spate of litigation and debate on the wearing of the veil by Muslim women and girls in Europe. Reflecting broader geo-politics, Muslim women have been placed at the center of the human rights versus Islamic world dialectic. Controversies surrounding the wearing of the veil have coincided in Europe with a retreat from the politics of multiculturalism, the language of multicultural accommodation being replaced by policy agendas that are more likely to appeal to the values of social cohesion and civic integration. The preoccupation with integration of migrant communities is reflected in the resurgence of interest in ‘pathways to citizenship’ and integration testing, both at EU level and in Member States. In recent years, this preoccupation has been marked by a willingness to deploy juridical and punitive tools of immigration control to monitor mandatory integration requirements. Newly expanded forms of integration testing seek to assess the newcomer’s commitment to liberal democratic ideals, including gender equality. This ‘gender turn’ in immigration and citizenship practice marks a challenging departure and raises questions as to what are the costs of such inclusion. While directly discriminatory laws have disappeared in Europe, the categories of gender, sexuality and ‘race’, continue to be pivotal to immigration and citizenship practices today.

The historical vestiges of discrimination in immigration laws persist in the ‘anxious scrutiny’ to which the cultural affiliations and practices of aspiring citizens are subjected. Muslim women have been placed at the center of such scrutiny, increasingly defined by the arbiters of belonging and membership as ‘les anormeaux’. This paper examines recent legislative proposals on the wearing of the veil in France and examines these proposals in the light of the expansion of integration conditions for immigrants and aspiring citizens in France and elsewhere in Europe. The gender dimension of integration conditions, and restrictions on religious forms of dress, are examined in the light of human rights law's normative commitments to cosmopolitanism and to just multicultural arrangements.

5. Jesse H. Alderman, Police Privacy in the iPhone Era? The Need for Safeguards in State Wiretapping Statutes to Preserve the Civilian's Right to Record Public Police Activity, forthcoming in First Amendment Law Review. The abstract states:

The advent of iPhones, Blackberries, and other ubiquitous cellular devices instantly capable of capturing audio and video recordings has led to increased publicity of police misconduct, and a rise in the admission of evidence, inculpatory and exculpatory, gathered by “citizen journalists,” ordinary bystanders, or victims themselves. The probative value of such “iPhone evidence” and its public utility in exposing police abuses cannot be understated. However, a handful of states have criminalized the mere gathering of such videos under state wiretapping statutes that prohibit a broad range of nonconsensual recording, even of police officers in their public capacities. This Paper argues that the right of citizens to openly or surreptitiously record police officers performing their public duties, without fear of punitive and retaliatory prosecution, must be expressly safeguarded in state wiretapping statutes. This protection is rooted in background principles of the Fourth Amendment, which militate against conferral of privacy rights for public police actions; the First Amendment, which protects the right of the public to receive information and concomitantly the right to record police; and other salient public policy considerations. A Table of State Authorities, summarizing the relevant characteristics of all state wiretapping laws, and the federal counterpart, is also provided.

6. Asim Jusic (Center for EU Enlargement Studies - Central European University, Budapest), Legal Regulation of Non-Mainstream Religious Groups: Perspectives from Economics and Social Psychology,  The abstract states:

In this paper, I construct a preliminary theory which posits the behavior of religious groups as a fulfillment of three basic aims. First, the provision of group identity ‚bundled‘ with shared emotions, beliefs and behavioral patterns; second, activities that are meant to sustain mutual cooperation and advance the internal and external credibility of group held religious beliefs, identity and behavioral patterns; and finally, "boundary keeping activities", meaning activities related to the preservation of intra-group solidarity and group existence in the face of external or internal pressures.

Additionally, I theorize that law is a tool of social control and regulation and describe the rise of legal institutions as mechanisms to solve the problems of uncertainty. Institutions are built against a particular social background of values, customs, religion and informal rules, and they are charged with making binary decisions on what is legal or illegal. In so doing, legal institutions are subject to influence of social norms which have a psychological impact on legal decision makers (legislators, jurors and judges).  In turn, institutions and legal decisions influence social norms themselves.  The major claim of this work is that the contemporary systems for regulating religious groups judge all "non-mainstream" religious groups by assessing them according to their relative status in the social strata of a given society. The judgment on the status of a given religious group is based on its potential for "disloyalty" to the state and the perceived social distance of a given group from what is legally constructed as the "mainstream". The 'status judgment' is based of the three major functions of religious groups posited in the theory of religious groups I construct. It is assumed, hence, that the legal evaluation of "disloyalty" potential and social distance is constructed and structured around the decision-makers perception of group cooperation, credibility-enhancing and boundary sustaining mechanisms of a given religious group under scrutiny. These asssesment serves as proxies for assessing the (un)acceptability of emotions, beliefs and identities that precede them, leading to positive or (more frequently) negative legal decision. This theory is than illustrated with two case studies. First, the legal position of non-mainstream religions in Germany, and a discussion of the Jehovah‘s Witnesses trial and a headscarf and crucifixes in schools controversy. Second, the Hungarian reenactment of institutional privileges for “historically accepted churches” following the fall of Communism in 1989 and the discussion on failed Jewish organizations’ demand for public recognition of Jewish holidays in Hungary.

In the conclusion, I discuss case studies in light of theory, and also explore problematic aspects of the theory in light of cases. I touch on potential for future research in this area, and point to several problematic aspects of the contemporary legal regulation of non-mainstream religious groups. The following identical issues occur as problematic in the case studies analyzed in the paper, as well as in other Western jurisdictions (i.e. the US or France). First, the "procrustean bed" problem: the attempt of legal systems to push various religious groups into organizational forms that fit only certain versions of organized Christianity. Second, the socially constructed and structured nature of legal argumentation in court cases involving religion, which increasingly looks odd (to say at least) and is further and further removed from contemporary developments and changes in everyday social life. This is another way of saying that the background conditions against which previous cases and precedents were decided are no longer present, and hence a pragmatic need (if not a growing necessity) to reassess the legal treatment of religious groups generally and non-mainstream ones particularly in light of new circumstances.

7. Lisa Shaw Roy (University of Mississippi School of Law), Pleasant Grove City v. Summum: Monuments, Messages, and the Next Establishment Clause , Northwestern University Law Review Colloquy, Vol. 104, p. 280, February 2010. The abstract states:

The U.S. Supreme Court's decision in Pleasant Grove City v. Summum may indicate a change in the direction of the Supreme Court's Establishment Clause jurisprudence. Although the Court decided Summum on the basis of the government speech doctrine, Justice Alito's opinion for the Court contains an extended discussion of monuments and messages that is directly at odds with some of the Court's Establishment Clause cases applying the endorsement test. Particularly in light of the fact that Summum was decided while the Court was considering Salazar v. Buono, another case involving a religious monument, it is possible that Summum suggests a move away from the endorsement test in the context of religious symbols and displays.

8. Phyllis Ghim-Lian Chew (Nanyang Technological University (NTU) - National Institute of Education) , An Ethnographic Survey of Language Use, Attitudes and Beliefs of Singaporean Daoist Youths . The abstract states:

This paper focuses on the active Daoist youths (ages 15 to 30) of Singapore as youths are the parents, decision-makers, business people and leaders of tomorrow. Their behavior, attitudes and beliefs affect the political, economic and social future of a nation. During this phase, religion or more generally, religiosity has begun to play a large part upon how these young adults view the world. Important questions of identity and meaning are formed during this period. However, research on religious development in youth is a much neglected area, as can be observed by the lack of research and surveys available. The study takes an interdisciplinary approach by incorporating the contributions of linguistics, political economy, history and sociology so as to provide a wider and more balanced analysis. Data was collected from interviews and questionnaires on 19 active Daoist youths, participant observation and focus-group discussion. Questions of interest in this study include: What, for example, is the basis of choice of a speaker’s religious ideology? How does a youth define Daoism? Who are the Daoist youths in Singapore? How do they define Daoism? What are their social cultural backgrounds? What are their aspirations? How much does a youth know about Daoism? What are their language(s) of communication? Of special interest is the study of the rise of world languages such as English and Mandarin at the expense of Chinese dialects.

9. Erni Budiwanti, Pluralism Collapses: A Study of the Jama’Ah Ahmadiyah Indonesia and its Persecution. The abstract states:

The long and uneasy relationship between Ahmadiyah and mainstream Muslims took a turn during the period between 1980 and 2005 when the MUI (Indonesian Ulama Council) issued edicts (fatwa) on the heresy of Ahmadiyah. After these consecutive edicts were publicly declared, the Ahmadis became the major target of persecution, and violent attacks. In Lombok in particular Ahamadi followers were forced to leave their destroyed houses, mosques and schools to live as refugees in a public shelter. This paper is a study of the Ahmadiyah sect and the basis of its beliefs. It also traces the origin and development of the sect in Indonesia and the subsequent debates and controversy which led to the religious group being “de-legitimized” by the state. This paper argues that government interference in the definition of officially acceptable religion has heightened religious violence. The research also reveals how government treats Ahmadiyah refugees who for so long have become the victims or the silent majority of this conflict.

10. Martin Hintz , Understanding the Context is Understanding the Impact: Evidence from a Qualitative Microinsurance Impact Survey in Indonesia , published in MICROINSURANCE - AN INNOVATIVE TOOL FOR RISK AND DISASTER MANAGEMENT, E. Morelli, G.A. Onnis, W.J. Ammann, C. Sutter, eds., Global Risk Forum, Davos 2010. The abstract states:

This paper presents the findings from a qualitative-explorative longitudinal impact assessment of an enhanced credit life microinsurance pilot in Indonesia. Different from the practical or econometric-quantitative approaches of the few microinsurance impact assessments available today, the approach applied here is sociological. Emphasis is put on contextualization. A variety of research components were executed: a baseline/endline survey of customers, interviews with 24 Muslim beneficiaries and additional research with loan officers, credit group leaders, experts, and MFI managers. Despite a number of methodological constraints which preempt absolute data accuracy, the breadth of available data nonetheless allows for indicative conclusions. This impact assessment identifies microinsurance as an agent of social change and highlights the complex interplay of the actual product with its respective sociocultural context in producing impact. It turns out that the social impact of the surveyed product which waives the loan balance and provides substantial additional payouts upon death of a micro-borrower, was literally \micro". For reasons of religion and tradition, most additional payouts were used for social investments. Payouts appear to substitute some of the traditional, informal, post-mortem family assistance (crowding out). To some extent, the insurance payouts also seem to have contributed to an inflation of funeral costs. Dependence on informal assistance was reduced leading to a potential erosion of equality-focused social cohesion. Positive impacts were found in the form of an increase in financial literacy. Also peace of mind of the insured increased. However, some of those insured felt less secure for reasons of religion and superstition. Customer satisfaction was nonetheless high. The insured voiced a strong demand for more urgent risk management challenges such as education and health costs.

11. Maznah Mohamad, Islam and Family Legal Contests in Malaysia: Hegemonizing Ethnic Over Gender and Civil Rights. The abstract states:

The family narrative is a rich site where feminist, ethnic and nationalist politics can be projected and advocated. In the Malaysian case, the discourse of feminism, cultural relativism and liberalism, vis-à-vis family litigation has been used to assert and bargain for specific political interests. The politicization of litigation involving Muslim-non-Muslim family cases has proved to be an effective means of drawing attention to the transformational potential of law in society. On the surface the unfolding of these events, especially when posed as a human rights concern can be reduced to a struggle between the Islamists and the secularists. However, there is a more complex process at work involving multiple contestations around middle-class competition, leadership struggles, and legitimacy of rule, rather than just an assertion of ideologies (particularly religious ideologies). What I will show in this paper is that the family as an economic and social unit, and even as metaphor, has become a terrain where acute power struggles can take place. By looking at the background and outcomes of several landmark inter-religious court cases in Malaysia the paper analyzes the wider socio-political implication of these contestations, especially how the representation of the family and its fragmentation has situated it within a critical interstitial domain lodged between the struggle for group affinity on the one hand and nation-state membership on the other. That this battle of wills is fought at the expense of families largely escapes the attention of those who are in this competition. It would seem that one of the costs of asserting or re-defining the rules of nation and belonging had been the undermining of the sacredness of family and the autonomy of private choice.

12. Gaurav Garwa (NALSAR, University of Law), Jurisprudential Analysis of Right to Life of Fetus.The abstract states:

The debate over abortion, the right to privacy and the right to life has been in the public eye since the decisions of the United States Supreme Court in Roe v. Wade and Doe v. Bolton. In Roe v. Wade the court held that there is no religious, scientific or moral consensus about when the life begins and the right to privacy encompasses personal decision such as whether to proceed with or terminate a pregnancy. Till date there is a huge debate over status of fetus and its right to life. This paper tries to analyze the status of fetus and whether it can be accrued right to life just like human beings.

13. Cem Baslevent and Hasan Kirmanoglu (Istanbul Bilgi University - Department of Economics and Istanbul Bilgi University - Department of Economics),Discerning Self-Interested Behavior in Attitudes Towards Welfare State Responsibilities Across Europe, forthcoming in International Journal of Social Welfare. The abstract states:

This article reports on an investigation into the influence of individual characteristics on attitudes to government responsibility for welfare-related tasks that used data from the European Social Survey (ESS). The main finding of this investigation was that socio-demographic characteristics, basic personal values, left-right ideological positions, and religious affiliation were all associated with attitudes towards welfare policies. An item-by-item examination of the six issues inquired about in the survey revealed that people tended to hold the government responsible for tasks that would benefit them more directly. Taken as a whole, the empirical findings were interpreted to mean that individuals’ tastes for welfare state policies were driven, at least partially, by self-interest, but it was also noted that further work was needed to disentangle the potential role of group loyalty effects.

14. Heinz Scheifinger, Conceptualising Hinduism.The abstract states:

The term ‘Hinduism’ is used in both popular and academic works. However, because Hinduism defies definition, exactly what authors are referring to is often left unclear. Despite this, I argue that the adoption of an approach which, crucially, does not seek to define Hinduism demonstrates that the term has utility and should be retained. Following this, I briefly consider Jean Baudrillard’s interesting views concerning religious images in the light of Hinduism – a worthwhile undertaking since the image is of paramount importance within Hinduism. I argue that applying Baudrillard’s ideas to Hindu religious images is highly problematic and then provide a further example which demonstrates that important characteristics of Hinduism may not necessarily fit comfortably with Baudrillardian ideas. Finally, I reflect upon the nature of online images of Hindu deities because certain characteristics of the medium of the Internet invite us to consider Baudrillard’s ideas further.

15. Ramkrishna Mukherjee (Humboldt University of Berlin), Formation and Fragmentation of Nation-States: Partition of India - An Example , The IUP Journal of History and Culture, Vol. IV, No. 3, pp. 7-16, July 2010 The abstract states:

The paper demolishes the lingering viewpoint that partition of Indian subcontinent was caused by religious animosity between the Muslims and the Hindus, and substantiates that unequal exchange of material and mental amenities among the people belonging to sensitive social groups leads to the formation and fragmentation of nation-states along the march of the process-structure - process syndrome in extant society.

16. Fredrick Oduol Oduor (Deakin University- Master of Laws Candidate) , The Evolution of Internet Defamation Law: Will Dow Jones v. Gutnick Survive the International Legal Schisms and Legislative Onslaught?. The abstract states:

The internet is currently the most versatile medium of communication. It remains true to its heritage having been designed by the US military to withstand a nuclear attack. At conception it was designed to route around censorship and controls. It however, now functions in the civilian world in which laws and regulation are the norm. The Australian High Court attempted to put in place regulations and principles on on-line Defamation in Dow Jones v Gutnick (Gutnick). However the borderless nature of the internet has brought to the fore, the complexities involved in developing internet legal principles. This is in a world still fraught with inherently different legal systems, with one foot placed on globalisation and the other clinging on to sovereignty. A clash between free speech and reputation was the result of Gutnick and a renewed offensive is in the offing. The pertinent question explored in this discourse is whether the defamation principles reiterated and established by the High Court of Australia in Gutnick will survive.

JFB

First Amendment Scholarship Update

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

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

As a precondition to maintaining its tax-exempt status, a public charity cannot campaign for or against any candidate for office. This prohibition, introduced in 1954 without fanfare, debate, or legislative history, has since created uncertainty and administrative burden for public charities, and has provoked firestorms of debate among academics, policymakers, and directors of public charities themselves. The subjects of these debates have ranged from the wisdom to the constitutionality of such a prohibition on political speech.

The debates have not, however, provided any significant certainty to public charities or to policymakers. Without legislative history or debate, public charities can only guess at the purposes underlying the prohibition. The arguments used to defend the prohibition are met by equally compelling counterarguments, while the arguments for why the prohibition should be eliminated are equally countered.

As this debate occurs, the penalty for violation of the prohibition is the loss by a public charity of its tax-exempt status. In light of the draconian nature of the penalty, the IRS underenforces the prohibition, as some public charities routinely flout the prohibition and others self-censor more than is necessary in order to stay on the right side of an uncertain line. Neither reaction leads to the efficient administration of the tax law.

The problem, this Article argues, is that all of the arguments surrounding the prohibition on public charities’ political campaigning takes place in the shadow of the current language of IRC § 501(c)(3), to which commentators and policymakers must ascribe purpose. Rather than argue the benefits and deficiencies of the current regime, the discussion of the role of public charities in political campaigns needs to start anew, without taking as a given the benefits and burdens of the current system. Whatever the result of the new discussion, however, the Article argues that is necessary to provide the IRS with the option to impose intermediate penalties on public charities that violate a prohibition on campaigning.

2. David Gan-wing Cheng,  Wisconsin v. Yoder: Respecting Children’s Rights and Why Yoder Would Soon Be Overturned. The abstract states:

 Parents want what is best for their child. The preceding statement is practically a truism, subject to rare exceptions. Parents almost always strive to act in the child’s best interest as they interpret it to be. At times society and the parents have differing interpretations as to what is in the child’s best interests. However, an absolute answer to the question what is best for the child or what is in the child’s best interests does not exist. The answer is always qualified by the baseline one uses to evaluate the question. The baseline may for example be spiritual salvation, intellectual growth, social development, fitness to compete for economic rewards in the future, or the child’s current gratification. Even after agreeing on a particular baseline, whether a particular mean is the best or even proper for attaining the desired end is debatable. However society usually defers to the judgment of parents on these matters because it is the parents’ natural duty to raise the child.

Indeed everyone generally recognizes that parents have a fundamental right to direct the upbringing of their children. Although society defers to parents on many aspects when it comes to the upbringing of their children, it will not do so if the parents’ means in achieving the ends of a particular baseline conflicts with the ends of another baseline deemed to be compelling by society. For example, if the parents’ religion requires them to mutilate the child in order for the child to achieve spiritual salvation, this would harm the child and would be seen as unacceptable by society. The parents who see spiritual salvation as being more important than worldly harm are genuinely acting in the child’s best interests as they see it. However this view is in tension with that of society which sees the child’s physical well-being as being more compelling. According to the US Supreme Court, although parents may have a fundamental right to direct the upbringing of their children and an additional Free Exercise of Religion right (hereinafter "Free Exercise right"), these rights must give way to the child’s right to be free from harm where they conflict.

In this article, I put two traditional rights: the Free Exercise right and the right to direct the upbringing of one’s child, up against a potential right which the Court has never considered: the child’s "right to an open future," first proposed by the philosopher Joel Feinberg. Generally, the child’s right to an open future is violated if the parent acts in any manner, including the exercise of their own fundamental rights, which irreversibly closes off certain key options for the child when he is an adult. This battle of rights will be discussed by examining Wisconsin v. Yoder, and the Old Order Amish whose religious tenets forbid Amish children from attending high school.

3.  Mark Jarmuth, Preface to Anatomy of Deception: How Liberals Lie About Christianity. The SSRN abstract states:

Submission is the preface to a 280 p. book debunking the anti-Christian claims of Richard Dawkins, Sam Harris, Chris Hedges and other skeptics. The book shows how (Chapter 1) Christianity provided the theoretical foundation for the United States and has been instrumental in its development and success as a nation the last two centuries; how (Chapter 2) Christians led the Woman's Rights Movement of the late nineteenth and early 20th Century and now lead the campaign against the global sex trade; how (Chapter 3) next to Judism Christianity is the world's most Jew-friendly religion; how (Chapter 4) Christians led the Nazi resistance and were Jews' most loyal allies in the Nazi Germany; how (Chapter 5) Christian child rearing is our childrens' only salvation and how home-schooled students beat public school- educated students in all areas of academic achievement; how (Chapter 8) Christianity brought science into existence and is responsible for many other intellectual pursuits which have benefited mankind; how (Chapter 9) Christians are persecuted in and outside the US; how (Chapter 10) Christianity has advanced freedom throughout history and is why China has emerged as a global economic power; and how (Chapter 11) our country and the world would be much worse off if Christianity is further privatized as it has been the last four decades under the liberal church/state rubric.

4.Jose Perez, Jehovah’s Witnesses: Between Patient Autonomy and Paternalism, published in InDret, Vol. 02, 2010. The abstract states:

The refusal of Jehovah's Witnesses to agree to blood or blood product transfusion based on religious beliefs is one of the most interesting conflicts between the duty of beneficence (and the duty to preserve the life) and the freedom of religion. Such conflict is a product of the ideological and religious diversity in society today. I review the reasons why Jehovah's Witnesses refuse transfusion and discuss the ethical and legal. My intention is to justify that in some cases is not justified the respect for the witnesses' decisions of Jehová I support such conclusion in a conception of the personal autonomy in which beliefs minimally rational are necessary to justify the respect for decisions in which is at stake a so important value as the life.

5.  Faruk Balli  (Massey University), Determinants of Income Smoothing via Remittance and Foreign Aid Flows. The abstract states:

In this paper we quantify the international income smoothing via remittance flows and foreign aid flows (both ODA loans and grants) for low income countries in a cross section analysis. We find that remittances smooth some portion of the domestic output shocks for the low income countries in a range 45% (Tajikistan) to -13% (Haiti). Searching for the determinants of the smoothing via remittances, we find that smoothing via remittance increases for a country as the emigrants of that country diversified more across the world. Also for lower populated economies smoothing via remittance is relatively higher. We explore that cultural factors - through religion - affect the extent of smoothing via remittances significantly.

6. Hatla Thelle and Gulazat Tursun, Integration of Minorities Through Legislation - China's Perspective . The abstract states:

Anyone has the possibility to become minority in a region where the population of his ethnic group is inferior to the main population of that region. Minority is easily isolated and discriminated against because of his ethnic, linguistic, religious or cultural differences. Integration of them into the main society by prohibiting any types of discrimination and providing different development opportunities equally improve social, economic and even political benefit of a society. The paper explored and analyzed China’s law and practice of integration under the framework in International and national legal instruments. After reviewing and conducting some empirical research on practice and the main obstacles of integration, it provided some suggestions for better integration policies.

7. Miguel E. Larios  (Law Office of Stephen F. Potts ), ePublius: Anonymous Speech Rights Online, 37 Rutgers Law Record 36 (2010.)  The abstract states:

The First Amendment to the U.S. Constitution prohibits Congress from abridging the freedom of speech, yet the text of the Amendment does not expressly address the issue of anonymous speech rights. Historical records from state ratifying conventions and from the First Congress do not discuss anonymous expression. Still, anonymous speakers and their works played an immensely important role in the founding era and throughout American history. This essay explores the interplay between the right to speak anonymously and the freedom of speech on the Internet. It concludes that the First Amendment also protects the right of individuals to speak anonymously online.

8. Jon Garon  (Hamline University School of Law ), Video Games, Virtual Worlds and Social Media,   published in Jon M. Garon, ENTERTAINMENT LAW & PRACTICE, Carolina Academic Press, 2005 and Supplement 2010. The abstract states:

This newly added casebook chapter highlights changes in the online, interactive environments of computer games, virtual worlds, wikis and social media sites. It highlights questions regarding the constitutionality of state laws that criminalize the sale of ultra-violent content to minors; the power of the FTC to regulate testimonials in blogs; the scope of publicity rights claims by athletes and artists whose likenesses are used for video games; and the enforceability of end user license agreements affecting the ownership of content created by users of the games they play and sites they visit. Note cases and problems explore the current state of cyberspace, encouraging readers to consider how best to address copyright, publicity and regulations for ads embedded in video games, virtual worlds and social media – where virtual advertising is hosted within a virtual medium.

9. Jennifer M. Allen and George H. Norris (University of Minnesota - Twin Cities - School of Law ), Is Genocide Different? Dealing with Hate Speech in a Post-Genocide Society. The abstract states:

The recent government crackdown on opposition voices in Rwanda discussing the country’s 1994 genocide raises important questions about freedom of speech in a post-genocide society. Does a country have greater latitude to restrict speech in the aftermath of destabilizing conflict? Rwanda has enacted a controversial new law criminalized denying the genocide and inciting divisionism. Under that law, opposition leader Victoire Ingabire and American law professor Peter Erlinder were recently arrested for statements allegedly challenging the 1994 genocide. Their cases strike at the heart of the challenges post-conflict countries face balancing civil liberties and freedoms with establishing the rule of law and preventing a slide back into violence. Which considerations should it take into account in deciding whether and how to limit speech? How can a country struggling to establish the rule of law provide effective checks on the potential misuse of speech restrictions? This Article examines how Israel, Germany, and the United States have protected and limited speech and how their experiences could inform speech regulations in post-conflict societies. It argues for post-conflict countries taking a middle ground between Rwanda’s current overbroad genocide ideology law and the United State’s absolutist approach to address restrictions on speech.

10. Nicola Lucchi  (Università di Ferrara - Facoltà di Giurisprudenza ), Regulation and Control of Communication: Access to Information and Technology Applications.  The abstract states:

In today's society, communication and dissemination of information are increasingly using digital technologies. The internet undoubtedly is the best known and most successful application of these tools. However, alongside these technologies, communication also requires a set of rules that must be borne by the professionals. The aim of these rules is to set the boundaries of legality within which the dissemination of ideas and opinions may be established and conducted.

In almost all democratic systems, new and old media have not only posed problems of definition, but have often resulted in attempts to contain and control information flow. The key point is that computer-mediated communication is beyond the control of the nation-state "ushering in a new era of extra-territorial communication". The problem of information control has thus become a more serious concern due to the phenomenon of new media. In order to contain information and maintain control over access, some countries have tried to set up monitoring systems. Democratic countries’ experience with similar provisions reveals that restriction of the freedom of the media may be condemned and declared as unconstitutional and undemocratic.

An influential example of this approach is provided by the recent decision of the French Constitutional Council that, reviewing the constitutionality of laws under Article. 61, paragraph 2 of the Constitution, considered illegitimate a government law aimed at preventing the illicit circulation of digital content protected by copyright on the Internet.

The article will analyze the most controversial points of the decision. After a brief examination of the effects that the French law has produced at European level, we focus on the relationship between the judiciary, administration and restriction of fundamental freedoms in cyberspace.

JFB

First Amendment Scholarship Update

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

1. Enyinna S. Nwauche (Rivers State University of Science and Technology - Faculty of Law) , You May Not Refuse a Blood Transfusion if You are a Nigerian Child: A Comment on Esanubor v. Fawaye, 10 African human Right Law Journal  309 (2010). The abstract states:

This comment examines a decision of the Nigerian Court of Appeal that a Nigerian child is not entitled to refuse a blood transfusion. The comment notes that the decision was handed down at a time when the Child Rights Law was in operation and that, had this legislation been taken into consideration, the best interests of the child would have led to a more nuanced interpretation and guidance on conditions under which a Nigerian child, in furtherance of the right to freedom of religion, may refuse a blood transfusion.

2. Karla W. Simon (Catholic University of America (CUA) - Columbus School of Law), International Non-Governmental Organizations and Non-Profit Organizations, International Lawyer, Vol. 44, No. 1, 2010. The abstract states:

This Year-in-Review focuses on providing updates to certain issues covered by earlier years’ reports, including: developments in Ethiopia, new tax legislation in India, developments with regard to the definition of public benefit in England & Wales, the changes made in the Societies Law in Jordan, changes in China regarding possible new regulations on social organizations, changes in the “NGO” Law in Russia, etc. New developments with regard to Armenia, Cambodia, Canada, Ireland, Lao PDR, and Zambia, where a very restrictive law was enacted, are also reported. There is an analysis of recent case law affecting NGOs and NPOs, including an important freedom of religion case from the European Court of Human Rights, a French case holding Scientology to be a fraud, and a European Court of Justice case regarding the deductibility of cross-border donations to charity. Further matters are discussed in a section dealing with “miscellaneous issues.”

3. Sonia Morano-Foadi  (Oxford Brookes Universiity), EU Citizenship and Religious Liberty in an Enlarged Europe, 16  European Law Journal  417 (2010). The abstract states:

The EU perceives itself as a community based on shared values. Since there is no European people, nor a European polity, common values play a core role in European polity building. The question, however, is whether common values can be experienced by the EU citizens in daily life and to what extent there are common values in the EU Member States. These issues are explored using the non-discrimination principle on grounds of religion, as a litmus-test for the existence of common values within Europe.This article intends to contribute to the theoretical debate on how EU citizenship could be regarded as a bundle of common European individual rights (and, to a lesser extent, obligations) and part of a democratic polity in which every citizen counts equally irrespectively of his/her religious belonging and faith.

The EU perceives itself as a community based on shared values. Since there is no European people, nor a European polity, common values play a core role in European polity building. The question, however, is whether common values can be experienced by the EU citizens in daily life and to what extent there are common values in the EU Member States. These issues are explored using the non-discrimination principle on grounds of religion, as a litmus-test for the existence of common values within Europe.

4. Margaret F. Brinig (Notre Dame Law School), A Case for Integrated Parenthood. The abstract states:

This paper makes a case for an integrated family, and more specifically for the formal, legally recognized statuses of husband/wife and parent/child. In general, children do better both in the short and long term if they live with married parents and if they are biological or adopted children of these parents. Children are particularly affected by the stability and permanence of their relationships, although they are famously resilient. Under any circumstances, parental warmth affects children significantly and positively. One of the more dramatic ways to see the influence of parental relationships involves mixed race marriages because they tend to be of shorter duration. The mixed race case, where children do fine only so long as their parents stay together, reveals the importance of community as well as intentions of parents for children’s outcomes. Community includes the formal community denoted by legal status, the family’s religious community (especially important for African-American families), and the peer community, which particularly influences older children. Stable marriages may provide a kind of buffer for fathers, who on their own may prefer sons to daughters.

5. Thomas D. Barton  (California Western School of Law), Entertainment, Art, and the Social Sorting of Violent or Cruel Images. The abstract states:

The adverse social and psychological consequences of media violence have never been conclusively verified, but the risks are troubling. Legal efforts to address those risks have been largely futile, as recently demonstrated by United States v. Stevens, in which the U.S. Supreme Court struck down federal legislation that sought to eliminate “crush” and other animal cruelty videos. The power to regulate these images under existing First Amendment exceptions, or by a new theory, is nonetheless evident. That eight Justices did not more strongly explore the legal possibilities reflects social reality: that the viewing public does not clamor for government regulation of violent or cruel images.

This Essay explains the relatively muted social response to the risks of media violence by positing viewers’ unconscious sorting of violent images into three categories: “entertainment;” “art;” or “offense/threat.” Only images perceived as offensive or threatening generate social and moral pressure for stronger legal regulation. Since relatively few images are so perceived, free speech concerns generally trump calls for censorship.

But why are so few violent images deemed offensive? What qualities or contexts cause violent images to be perceived as either harmless “entertainment” or as socially valuable “art?” That exploration uncovers deep intertwining of cultural values, artistic appreciation, and moral disengagement. Can and should the law undertake to re-shape cultural values by regulating such images? Have sex and violence become culturally legitimated as artistic expressions of our freedom or humanity?

This Essay’s attention to the social and psychological sorting of violent images may sharpen the focus of legal reform efforts. Yet even where public censorship remains unwise, stronger self-awareness of the phenomenon and criteria of the sorting process may make private viewing choices more thoughtful.

6. Lorin C. Geitner  (Chapman University School of Law), Eruv and Establishment . The abstract states:

An examination of how the Orthodox Jewish practice known as an "eruv", based in Jewish religious law, can help illustrate the tension between the Establishment and Free Exercise clauses of the First Amendment.

7. Darrell A. H. Miller  (University of Cincinnati College of Law), Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights. The abstract states:

The 2009 Supreme Court Term began by addressing the constitutional rights of corporations. It ended by addressing the incorporated rights of the Constitution. In Citizens United v. Federal Election Commission, a five-member majority of the Court held that corporations have a First Amendment right to spend their own money on political advocacy. A corporation generally is no different than a natural person when it comes to the First Amendment - at least as it relates to political speech. In McDonald v. City of Chicago, a plurality of the Court held that the Second Amendment to the United States Constitution is incorporated through the Due Process Clause and applies to states and municipalities. Neither the federal government nor states may prevent a person from keeping and bearing arms in their homes for self-defense.

Given this new world in both senses of incorporation, the time has come to explore the issue of Second Amendment rights and the corporate form. This article will offer an analysis of the potential Second Amendment rights of the corporation. And it will, in the process, offer an opportunity for a more systematic critique of corporate constitutional rights in general.

8. Tamara R. Piety (University of Tulsa College of Law), Citizens United and the Threat to the Regulatory State.  The abstract states:

This brief essay, intended for publication in electronic form, discusses the potential impact of Citizens United on the commercial speech doctrine and argues that the impact may be to throw roadblocks in recent efforts of increased regulatory oversight of critical industries. This is a work in progress.

9. David Kairys  (Temple University - Beasley School of Law), Prohibition of Limits on the Quantity of Speech in the Campaign Finance Cases. The abstract states:

Constitutional invalidation of laws limiting campaign financing in the 1980s faced two main obstacles in well established First Amendment law, both addressed in the opening passages of Buckley v. Valeo under the heading “General Principles”: the limits were imposed on money, not directly on speech; and they were not prohibitions but limits on amounts of money at levels that preserved the system of individual campaign financing. The first obstacle was removed by the famous conclusion that money is speech. The second, my focus here, was overcome without much notice at the time or since by reliance on what the majority considered an established First Amendment principle – government may not limit the quantity of protected speech. Citizens United v. FEC and all the protective campaign financing cases in between also rely on the anti-quantity-limits principle, to which they also generally apply the highest form of judicial review, strict scrutiny. It’s an appealing idea. Government shouldn’t dictate or limit the amount or intensity of views expressed by speech that is protected by the First Amendment. A limit on the quantity of speech represses some quantum of speech and may reduce the clarity, depth, impact, and reach of the message. If speech is protected, it should all be protected, and the more of it, the better. However, speech law was and is proliferated by often direct limits on the quantity of speech imposed by legislatures, courts and public officials: Limits on the number of picketers, the number of demonstrators, the number and frequency of permits for demonstrations and parades, the volume of amplifiers, the number and size of protest signs – all are regularly allowed. Some can be characterized as other than quantity limits, as the Buckley majority did – as different modes of speech, or as indirect as opposed to direct limits – but some are undeniably direct quantity limits on protected speech. And it’s not a principle at all: outside of the campaign finance context, decisions that allow limits on the quantity of speech – even if directly imposed on protected speech itself – rarely mention any First Amendment principle prohibiting quantity limits and do not apply strict scrutiny. Perhaps this is because there are good reasons not to extend heightened constitutional protection to unlimited quantities of speech (or anything else).

In the campaign finance cases, the anti-quantity-limit principle has been offered as obvious, simply asserted without need for support in reasoning or precedent. The only precedents the campaign finance decisions cite, or can cite, are each other. The reasoning supporting it in Buckley, the only campaign finance case to seriously address it, is an analysis that distinguishes “quantity restrictions” from some “time, place and manner” restrictions of different “mode[s]” of speech that had been allowed. However, quantity limits, whether direct or indirect, usually have been characterized as time, place and manner restrictions, and usually have been allowed, whatever the characterization, as long as they are reasonable. An exemplary trial court decision considered a town’s limiting some organizations to one permit per year for use of its open, public park for protected speech activities.

In the campaign finance cases, any limit on the quantity of money – on each and every additional dollar – is viewed and analyzed as if it were a total ban on speech and subject, like a total ban, to strict scrutiny. Nothing else matters – not the indirectness of the limit (which is on money, not speech), not the lack of a necessary or proven correlation of money to the quantity, quality or reach of speech, not the adequacy of the quantity of money or speech still allowed, or of the alternative forms of speech available. Application of the usual rules and principles of speech law to quantity limits on campaign finance would sustain them. No convincing explanation has been offered as to why there should be a quantity-limit principle that only applies to campaign financing.

This inconsistency and selectivity of rules, principles and approaches has characterized the law of free speech, and civil rights law generally, over the past several decades. The result in the law of free speech has been enlargement of the speech rights available to wealthy and otherwise favored people, and to their preferred form of doing business, corporations; restriction of the speech rights available to people of ordinary means and to various dissenters; and a free-speech barrier to public access to the media and to important electoral, economic and social reforms.

There should not be special, more protective free speech rules for the large amounts of money donated or spent on electoral campaigns, speech of a form – and quantity – available only to the wealthy. Quantity limits on speech could be handled a variety of ways, including as time, place and manner restrictions, as prohibitions of speech in excess of the limits, or as subject to a range of distinctions, such as direct/indirect and quantity/mode. Whatever the rules and principles, they should apply to all quantity limits on speech.

10. Katja G. Weckstrom  (University of Turku Faculty of Law),Trademark Take-Over or Sui Generis Regimes - Absolute Merchandising Rights in Sports.  The abstract states:

When considering justifications for market intervention, there are two possibilities. We can consider the justification for each individual right in intellectual property, i.e. copyright, design, geographical indication or trademark, separately. Alternatively, we could consider the market position conferred by IP rights in general in a particular field, before considering whether market intervention is justified via a particular form of IP protection. The latter, i.e. horizontal intellectual property law issues are seldom considered. A natural consequence of this is that horizontal issues related to the rest of the legal system are also ignored, or considered from only one perspective; e.g. trademarks are balanced against freedom of speech concerns. I argue that it is here, when protection crosses over the interface between IP rights, where the system is most vulnerable to over-protection and thus, where we should ask the question whether a justification for protection still exists.

Therefore, before considering an extension of protection of rights in sports merchandising, one should consider the extent to which the trademark owners in question already enjoy protection under the well-known marks and famous marks doctrines. In fact protection can be quite extensive. Similarly, a sport franchise also enjoys protection via contractual arrangements and extra-judicial enforcement efforts, thus achieving a stronger market position than the regular trademark owner that is otherwise constrained by competition law. Lastly, it is necessary to consider the scope of protection when protection is considered justified, since the societal cost of overprotection in scope of an (already) absolute right naturally is great.
This article argues that in each case, at the outskirts of trademark law we should apply a two-tiered justification-test. In addition, the concept of use as a trademark or trademark use could serve as an indicator of when the use should be presumed infringing or fair. However, the justification-test would give a voice to uses that have traditionally, albeit implicitly, been considered outside trademark law.

While it is evident that few sports franchises would pass the justification-test, and join the sui generis -regime where the Olympics reign alone. There are several actors in the on-line world that would benefit from legal rules that are based on a holistic perspective rather than one based on each field of IP separately. Rather than pushing on line-actors into a corner, we could regulate in the holistic and flexible way required. Using the justification test, while understanding protection to mean, not affording IP rights, but protection against a multitude of IP actors or the abuse of IP rights, may allow us to create sui generis regimes on-line that are designed to foster competition, and weed out unfair competition and dishonest commercial practices.

11. Nicole Ozer  (ACLU of Northern California),  Digital Books: A New Chapter for Reader Privacy ( March 2010). The abstract states:

What you choose to read says a lot about who you are, what you value, and what you believe. That is why you should be able to read about anything from politics to health without worrying that someone is looking over your shoulder. However, as books move into digital form, new reader privacy issues are emerging. In stark contrast to libraries that retain as little information about readers as possible, digital book services are capturing detailed information about readers including who they are, what books they browse and read, how long a given page is viewed, and even the notes written in the “margins.” Without strong privacy protections, all of this browsing and reading history can be collected and analyzed and could end up in the hands of the government or third parties without the reader’s knowledge or consent. Retaining and strengthening reader privacy in the digital age requires a thorough examination of the potential privacy and free speech implications of digital book services and the establishment of laws and policies that properly protect readers.

Digital Books: A New Chapter for Reader Privacy is the second in a series of issue papers by the ACLU of Northern California that discuss new technology trends and their consequences. This paper examines the history of reader privacy and explores opportunities for consumers, businesses, and policymakers to work together to update and enhance these protections.

Part I of this paper discusses the history of strong legal and policy protections for reader privacy. Part II covers the emerging privacy issues related to digital book services, and Part III evaluates whether existing legal protections are sufficient to address these issues. Finally, Part IV proposes policy and legislative steps that should be taken to safeguard reader privacy for the digital age.

12. SpearIt  (Saint Louis University School of Law), Enslaved by Words: Limits and Liminalities of 'Post-Racial' Language.  The abstract states:

This article examines racial language in the legal institutions of the United States to show how the law is instrumental in establishing linguistic norms about race. By examining federal and state constitutions, Supreme Court opinions, and government surveys like the U.S. Census, the article unveils a hidden transcript embedded in normative language and attempts to describe how legal classifications work to subordinate minority groups. Racial language is legalized and normalized in society by the force of law, which has institutionalized words like “Indian,” “colored,” and other seemingly innocuous terms like “black” and “white.” Yet, despite their politically correct appeal, these terms effectively subordinate groups, create false binaries, and reinforce racial hierarchies like the “one drop rule.” They are words of everyday parlance that exert an invisible, yet powerful, negative force on minorities. In this census year, for example, who is formally “Hispanic,” “Latino,” or “Spanish” can be people whose “origin” derives from Cuba, Puerto Rico, Mexico, Spain and a whole host of other countries, yet determining the principles which guide the U.S. Census in combining these nationalities under a single banner is a more daunting task. Even more challenging is trying to determine how a “Latino” must then pick between “white” and “black” on the census survey to describe “race” since “Latino” is not a race, but “black” and “white” are. The logic of these divisions is puzzling, yet their negative effects are clear; racial language is never “only words,” but instead can become a conceptual building block of slavery, colonialism, and other forms of subjugation. Terms of today’s common speech can embody the very epitome of discrimination - hegemonic words of the slave master that are still alive and captivate minds in the present. To remedy these iniquities, the article concludes by offering a set of ideas to move beyond the trappings of contemporary racial language and closer to true freedom of speech.

JFB

First Amendment Scholarship Update

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

1. William Blake (University of Texas at Austin), Pyrrhic Victories: How Government Secularization of Sacred Symbols Undermines the Sanctity of Religion. The abstract states:

Over the past 25 years, federal courts have sanctioned displays of religious symbols on public property – including the crèche, the Ten Commandments, and the Latin cross – by privileging their secular value or because nearby secular symbols wash away their religiosity. This paper contends that these cases have resulted in government secularization of the religious. Though the appearance of religion has increased in the Public Square, this effort has been partially self-defeating because the distinctive substance of religion has been eroded by this jurisprudence, thereby weakening the sanctity of religion. Minimizing the religious import of these symbols makes dialogue over the proper reach of the Establishment Clause effectively impossible.

2. Jennifer Hochschild (Harvard University) and Charles Lang. Including Oneself and Including Others: Who Belongs in My Country?. The abstract states:

To be a first class member of a country, must one have citizenship, the same ethnic or racial background, or the same religion, as most citizens? How does high status relate to beliefs about inclusion? We analyze the 2003 ISSP survey on national identity, focusing on ten wealthy, democratic countries. We find a series of mismatches: a strong sense of being included is often coupled with a desire to exclude others. Countries with extreme public views are not always the countries with political controversy over inclusion. Views of citizens or members of the mainstream religion or race often differ from views of outsiders. Countries often cluster in ways that violate standard assumptions about geographic, cultural, or political affinities. Enjoying high status does not guarantee feeling included or seeking to include others. Given these mismatches, it is no surprise that politics and policies around inclusion are contentious, unstable, and fascinating.

3. Ronen Bar-El , Teresa García-Muñoz (University of Granada - Campus La Cartuja), Shoshana Neuman (Bar Ilan University - Department of Economics) and Yossi Tobol (Bar Ilan University - Interdisciplinary Department of Social Studies), The Evolution of Secularization: Cultural Transmission, Religion and Fertility Theory, Simulations and Evidence. The abstract states:

This study presents an evolutionary process of secularization that integrates a theoretical model, simulations, and an empirical estimation that employs data from 32 countries (included in the International Social Survey Program: Religion II – ISSP, 1998). Following Bisin and Verdier (2000, 2001a), it is assumed that cultural/social norms are transmitted from one generation to the next one via two venues: (i) direct socialization – across generations, by parents; and (ii) oblique socialization – within generations, by the community and cultural environment. This paper focuses on the transmission of religious norms and in particular on the 'religious taste for children'. The theoretical framework describes the setting and the process leading to secularization of the population; the simulations give more insight into the process; and 'secularization regressions' estimate the effects of the various explanatory variables on secularization (that is measured by rare mass-attendance and by rare-prayer), lending support to corollaries derived from the theory and simulations. The main conclusions/findings are that (i) direct religious socialization efforts of one generation have a negative effect on secularization within the next generation; (ii) oblique socialization by the community has a parabolic effect on secularization; and (iii) the two types of socialization are complements in 'producing' religiosity of the next generation.

4. Pablo Cristóbal Jiménez Lobeira (Australian National University (ANU) - Centre for European Studies), Pre-political Foundations of the Democratic Constitutional State - Europe and the Habermas-Ratzinger Debate.The abstract states:

In 2004 Jürgen Habermas and Joseph Ratzinger participated on a debate on the ‘pre-political moral foundations of a free-state’. Their contributions showed broad agreement on the role of religion in today’s Western secular state and areas of collaboration and mutual enrichment between Modernity and Christianity in Europe and elsewhere. They diverged regarding the need or not of a common cultural background prior to the existence of the polity. Their diverging point becomes all the more fascinating to extent that the matter needs far more research (including empirical studies) to be settled. Nevertheless, the implications that derive from one or the other possibility are very different in normative terms and translate into different criteria for such policies as crucial as immigration and citizenship. This is already clear in Europe and is becoming more evident in other Western democracies.

5.  Keren Weinshall Margel (Hebrew University), Supreme Court Decision-Making: An Empirical and Comparative Perspective from Israel. The abstract states:

This study examines decision-making in Israel’s Supreme Court regarding freedom of religion, while implementing models of decision-making that were researched in other high courts, mainly the US Supreme Court and the Supreme Court of Canada. Two theoretical models were studied: the attitudinal model, according to which justices decide disputes consistent with their ideological positions; and the neo-institutional approach, according to which the roles and norms of the court as an institution affect the justices’ decisions. Conclusions indicate that justices' attitudes in Israel have a very strong influence on their votes on the merit. At the same time, the neo-institutional claim that the law does matter is also supported by the findings. The results of the study, as compared to former studies conducted in other countries, can help to better understand the influence of institutional arrangements on decision-making in high courts.

6. Shahar Lifshitz (Bar-Ilan University - Faculty of Law),  A Potential Lesson from the Israeli Experience for the American Same-Sex Marriage Debate. The abstract states:

In the past decade American marriage law has been the arena for a major controversy regarding same-sex marriage. Typically, liberals tend to support same-sex marriage, while conservatives oppose it. The liberal-conservative dispute concerning Same Sex Marriage is usually related to a broader debate on the legitimacy of limiting the possibilities for marrying: liberals present marriage as a private arrangement between the partners, and they therefore oppose restricting the right to marry The opponents of single-sex marriage, in contrast, legitimize legal limits to the right to be married by presenting marriage as a public institution.

Based on the unique experience amassed in Israel on this question, I seek to reveal the potential consequences of the struggle between liberals and conservatives regarding limitations of the right to marriage for an additional liberal-conservative confrontation concerning the uniqueness of legal marriages, and the difference between them and alternative family types.

The conservative position limiting entry to marriage won a decisive victory in Israel. Accordingly, partners of the same sex, like partners from different religious communities, are not allowed to formally marry. Generally speaking, the right to marry is subject to a broad range of civil and religious restrictions. Ironically, the strict limitations on the right to marry were a trigger for the development of the institution of cohabitation as a substitute for formal marriage. Accordingly, the array of the rights and obligations of cohabitants is approaching that of married partners, and at times even exceeds the latter. I will argue for the existence of a similar dynamic in the United States, where the distress of same-sex partners serves as the basis for notions and proposals, both in the academic realm and in the more general public realm, for strengthening the institution of cohabitation, the weakening of the institution of marriage, and at times even the abrogation of marriage as a legal institution.

On the background of this developing dynamic, and taking into account the aggregate Israeli experience, I will advance three arguments:

First, I will present a conservative critique of the conservative position against same-sex partners. I will argue that, in the final analysis, the conservative camp's relative success in negating the possibility of same-sex marriages harms this camp's broader agenda for the preference of legal marriages.

Second, I will present a liberal critique of the liberal camp. My proposition is that, despite the essentially liberal motivation for weakening legal marriages in order to decrease the gap between them and cohabitation, in many instances this activity harms the liberal values of freedom of choice and autonomy in the name of which they act.

Finally, I will argue on behalf of democratic compromises such as civil union in the United States and spousal registry in Israel.

7 . Adrienne Stone (University of Melbourne - Law School),The Comparative Constitutional Law of Freedom of Expression. The abstract states:

Freedom of expression is among the most widely protected of constitutional rights. This chapter, written for a Research Handbook on Comparative Constitutional Law canvasses freedom of expression in a wide range of modern democracy. It chapter focuses, first, on the conceptual structure of rights of freedom of expression and, second, upon substantive conceptions of ‘freedom of expression’.

JFB