First Amendment Scholarship Update

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

1. Daniel Augenstein (Tilburg University) Excluded Publics-Included Privates: The Janus-Headed Nature if the Liberal Public-Private Divide, published in The Public In Law, P. Charalampos, C. McCorkindale & C. Michelon, eds., Ashgate (2011). The abstract states:

The justification of the liberal public-private divide rests on two distinct claims that are often lumped together: first, that the distinction between a ‘public sphere’ and a ‘private sphere’ is a meaningful way to cognise and structure modern pluralistic societies; and secondly, that there is a meaningful way to distinguish what is or ought to be ‘public’ from what is or ought to be ‘private’. The paper critically scrutinises the plausibility of both claims in the context of European debates on the display of religious symbols in the public sphere. It argues that the distinction between the public sphere and the private sphere provides the framework for negotiating the ‘public’ and the ‘private’ between national majorities and religious minorities as members of the same national community: the exclusion qua public from the public sphere contains a simultaneous inclusion qua private in the private sphere that is premised upon the inclusion of the excluded in the polity as a whole. 

2. Salvador Santino Regilme Jr. (De La Salle University) Southeast Asia: A Sui Generis Case on the Study of Political Islam and Democratization, published in Taiwan Journal of Democracy, Vol. 6, No. 2, pp. 157-161, (December 2010). The abstract states:

Book Review: Johan Saravanamuttu, ed., Islam and Politics in Southeast Asia (London and New York: Routledge, 2010), 188 pages. 

3. Yossi Nehushtan (Haim Striks Law School, College of Management) The Links between Religion and Intolerance, published in Philosophy and Theology, Vol. 23, No. 1, pp. 91-132. (2011). The abstract states:

This paper explores two main arguments. The first argument is that religious persons - because they are religious persons - are likely to be more intolerant than non-religious persons. This argument is supported by decisive empirical evidence. The second argument is that there are meaningful, clear and unique theoretical links between religion, or, more precisely, certain types of religion, and intolerance. It is submitted that the special links between religion and intolerance are the result of seven characteristics of religion which are specified in the paper. Both arguments should encourage us to re-evaluate the proper place that religion should have in the legal and political sphere. 

4. Bernard M. Levinson (University of Minnesota) and Joshua A. Berman, The King James Bible at 400: Scripture, Statecraft, and the American Founding, published in The History Channel Magazine pp. 1-11, (November 2010). The abstract states:

This short article addressed to a broader readership investigates the impact of the King James Bible upon the American founding. In order to show that impact, the article's first half portrays the political context for the formation of the King James, charts the influence of the Bible upon early modern political thought, and then sketches the impact of the KJV upon the rhetoric and political thought of the Founders. The essay is accompanied by a timeline. 

5. David G. Yosifon (Santa Clara University-School of Law) The Public Choice Problem in Corporate Law: Corporate Social Responsibility after Citizen United, 89 N.C.L.Rev. 1197 (2011). The abstract states:

The Supreme Court held in Citizens United v. Federal Elections Commission (2010) that the First Amendment forbids Congress from restricting the political speech of corporations. While corporate theory did little to inform the Court’s thinking in Citizens United, this Article argues that the holding in Citizens United requires us to rethink corporate theory. The shareholder primacy norm in American corporate governance relies on the assumption that corporations can be restrained from influencing external governmental operations. We can enjoy the efficiencies generated by shareholder primacy in corporate governance, mainstream corporate theorists have long argued, because we can rely on external regulation to curb or cure the excesses that such a framework will predictably visit upon nonshareholding stakeholders, such as workers, consumers, and communities. Citizens United removes this lynchpin from canonical justifications for exclusive shareholder orientation in firm governance. This Article argues that if we cannot as a matter of constitutional law keep corporations out of our democracy, then we must as a matter of corporate law have more democracy in our corporations. After Citizens United, we must begin to restructure corporate law to require boards of directors to actively attend to the interests of multiple stakeholders at the level of firm governance. 

6. Jeremy Peterman, Note - Empowering the PAC: Improving Accountability and Equality in Elections Following Citizens United, forthcoming in New York University Law Review. The abstract states:

The modern campaign finance system is praised by few and maligned by many. Following Citizens United decision critics blamed the Court for further enabling unaccountable groups to run undesirable negative advertising campaigns and for reinforcing the perception that the political process is governed by corporate special interests. Taking the doctrinal changes in Citizens United as given, I argue that the Federal Election Campaign Act’s $5000 limitation on individual contributions to political committees should be removed for two reasons. First, in light of recent campaign finance decisions, the limitation appears to be unconstitutional as it imposes a limit on First Amendment rights without being tailored to the government interest in preventing quid pro quo corruption. Second, eliminating the contribution limitations will have previously unrecognized normative benefits. Specifically, removing the restriction will enable smaller, ideological, PACs to better compete with more established corporate PACs and it may lead to an increase in accountable political speech by putting more money into the hands of candidates. 

JFB