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Professor Mark Rosen has posted a new article to SSRN titled Religious Institutions, Liberal States, and the Political Architecture of Overlapping Spheres (U. Ill. L. Rev., forthcoming). Read the abstract below:
Alongside the contemporary consensus favoring strong protections for individual religious liberty, controversial new claims on behalf of religiously affiliated institutions have been asserted with increasing frequency. They raise difficult questions. For example, are churches entitled to a “ministerial exception” exempting them from federal anti-discrimination laws when hiring and firing ministers? Must Catholic hospitals be exempted from the Affordable Care Act’s “contraception mandate,” which requires that employers provide their employees health insurance that includes contraceptive devices, because use of contraceptives is contrary to Catholic tenets?
To date, scholars have staked out two diametrically opposed approaches. One group argues that churches have inherent autonomy, and a corresponding jurisdictional independence of the state, vis-à-vis matters within the church’s domain. A second argues that churches are voluntary associations that accordingly enjoy no protections beyond their members’ constitutional and statutory rights. The first group favors the ministerial exception and exemptions from the contraception mandate, whereas the second group opposes them.
This Article critiques both approaches, and provides an alternative framework derived from John Rawls’s monumental works on political theory. What this Article calls the “Religious Institution Principle” provides a basis for determining what qualifies as a religious institution, as it explains why religious institutions are not reducible to their members, and why they are meaningfully different from most, possibly all, other associations. But religious institutions do not have any inherent autonomy. Not all religions are entitled to the Religious Institution Principle’s protections, and the principle does not provide anything approaching full immunity from state regulation for the religions falling within its coverage.
In essence, whereas the first scholarly approach treats state and church as separate juridical spheres, and the second approach eliminates the distinct sphere of religion by folding churches into their individual members, this Article conceptualizes government and religious institutions as overlapping spheres.
The Religious Institution Principle’s derivation reveals why it is fair, and why it plausibly can be thought to be acceptable to both religious and non-religious citizens. The principle generates a robust normative framework for evaluating religious institutions’ claims, which the Article applies to a wide array of difficult questions, including the polygamy decision in Reynolds v. United States, sexual abuse lawsuits against clergy, the ministerial exception, the contraception mandate, and the church autonomy cases.
Download the article from SSRN here.
Professor Katharine Baker has uploaded to SSRN an amicus brief--filed on behalf of Family Law Professors--on the merits of the Supreme Court case United States v. Windsor. Read the abstract below:
This amicus brief – filed on behalf of Family Law Professors - clarifies the relationship between Congress and the states with regard to family status, particularly marital status. The brief argues that Section 3 of the Defense of Marriage Act disestablishes marital status, for all federal purposes, for one subset of married couples, in contravention of an exceedingly strong norm of federal deference to state family status determinations. Unlike any other federal statute, DOMA selectively withdraws state-conferred marital status. Regardless of whether the federal government has the power to abrogate marital status for one subset of married couples for all federal purposes, it had never, before DOMA, done so.
Part I of the brief explains why DOMA cannot be justified as an attempt to ensure federal uniformity with regard to the treatment of marriage because federal law is still silent on critical eligibility criteria for marriage. Thus, similarly situated couples in different states have always been and still are treated differently at the federal level. Moreover, Congress’ alleged need to maintain uniformity does not comport with its long history of deference to state divorce determinations (which are marital status determinations), when there was tremendous diversity between the states with regard to eligibility for divorce. Section 3’s marital restriction is also inconsistent with Congress’ ongoing deference to state determinations of other family statuses, particularly parental status. Modern technological and scientific achievements have made diversity in the state laws of parenthood far more complicated and extensive than current state disagreements over marriage for same sex couples. Yet there is no federal law of parenthood.
Part II of the brief explains how all existing federal statues pertaining to family status can be divided into three categories and all maintain the federal government’s traditional deference to state-determined family status. First, and most common, are federal statutes that implicitly invoke the state law of family status. Second, are federal statutes and regulations that explicitly invoke the state law of family status. Third, there are federal statutes and regulations that expand or restrict the category of who will be eligible for federal benefits under particular statutes based on policy reasons, particularly fraud-prevention and public fisc protection, pertinent to those specific statutes. None of those statutory definitions of marriage does what DOMA does, which is selectively withdraw marital status for one subset of marriages for all federal purposes.
Download the brief from SSRN here.
Today and tomorrow Chicago-Kent hosts the 30th annual Section 1983 Civil Rights Litigation Conference. Professor Sheldon Nahmod, a leading expert on §1983 and author of Civil Rights and Civil Liberties Litigation: The Law of Section 1983, is the program chair and will present on "The Section 1983 Claim." Read more about the event below:
Liability arising out of §1983 presents a continuing challenge for all municipal lawyers, private practitioners, and litigators who try cases in this dynamic area. Keeping up with this ever-changing environment is critical. In this two-day conference, you will learn both the fundamentals and more advanced aspects of §1983 practice and trial skills, and analyze the latest judicial decisions. Visit the program website for more information and to register online. The conference meets on Thursday, April 18, from 8:50 a.m. to 4:45 p.m. and on Friday, April 19, from 9:00 a.m. to 3:30 p.m.
Professor Nahmod now blogs on §1983 and constitutional law at nahmodlaw.com.
The Chicago-Kent Research Paper Series (RPS) is an SSRN ejournal publication, distributed monthly, that highlights new abstracts, works in progress, and published articles by Chicago-Kent faculty.
The latest edition (5.4) of the RPS was distributed on April 16. This edition includes the following articles:
- From Roach Powder to Radical Humanism: Professor Derrick Bell's 'Critical' Constitutional Pedagogy (Seattle U. L. Rev., forthcoming), by Vinay Harpalani
- Sentencing the Why of White Collar Crime (82 Fordham L. Rev., forthcoming), by Todd Haugh
- Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Decision (61 UCLA L. Rev., forthcoming), by Mark Rosen and Christopher Schmidt
- Beyond Notice and Choice: Privacy, Norms, and Consent (Suffolk U. J. High Tech. L., forthcoming), by Richard Warner (with Robert Sloan, UIC)
Click here to see the abstract page for the Series and to subscribe to the ejournal.
The Chicago Lawyer Chapter and the Chicago-Kent College of Law Student Chapter of the American Constitution Society (ACS) will hear Professor Steven Heyman present his recent article, To Drink the Cup of Fury: Funeral Picketing and the First Amendment, on Thursday, April 18. Click here for more information on the presentation, and read the article abstract below:
In Snyder v. Phelps, the Supreme Court ruled that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a view that has become increasingly dominant in First Amendment jurisprudence — the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. This Article contends that this view not only sacrifices the law’s protections for individual personality but also undermines the normative foundations of public discourse itself. The Article then presents an alternative theory of the First Amendment which holds that the same values of human dignity and autonomy that support free speech also give rise to other fundamental rights. Thus, speakers should have a duty to respect the personality and rights of others. Drawing extensively on the record in Snyder as well as on other materials, the Article argues that Westboro’s funeral picketing should not receive First Amendment protection, for the picketing is intended to condemn the deceased and to inflict severe distress on the mourners in violation of their rights to privacy, dignity, emotional well-being, and religious liberty. Finally, the Article shows that although Westboro prevailed in Snyder, this may prove to be a Pyrrhic victory, for the Court also suggested that states can protect mourners through carefully drawn buffer-zone laws.
Download the article from SSRN here.
Professor Richard Warner will speak this week at the ForenSecure'13 Cyber Security & Forensics Conference, hosted by IIT's School of Applied Technology in Wheaton.
Professor Warner will present "Data, Privacy, Security, and the Courts: Where Are We? And, How Do We Get Out of Here?" at 8:00am on Thursday, April 18. The session abstract is below:
Security experts, privacy advocates, courts, and businesses are not seeing eye to eye. Privacy advocates call for severe restrictions on data collection, use, and retention and urge courts to see the invasion of privacy as a compensable harm. Courts refuse to treat the mere invasion of privacy as a compensable harm unless there is an associated “present injury” (a quantifiable actual economic loss at a minimum), have not curtailed massive data collection, and have been reluctant to hold businesses liable for data breaches. Security experts emphasize importance of analyzing massive, long-term datasets to detect the anomalies that signal unauthorized access. Businesses increasingly rely on the analysis of massive amounts of data for business planning and marketing. The consequence is ever-diminishing privacy. We need a better tradeoff between privacy, security, and business than we have. I identify some roads we should not take, and suggest one that we should.
Click here for the full conference schedule and for more information on participants and sponsors.
Chicago-Kent's Institute for Law and the Humanities and Documentaries to Inspire Social Change (DISC) will present a screening of Sifuna Okwethu (We Want What's Ours) on Friday, April 19. Sifuna Okwethu is an evocative 18-minute documentary film depicting one South African family’s struggle to regain their family land stolen during apartheid. The film’s director, Professor Bernadette Atuahene, will be joined by other panelists for a post-screening conversation about land dispossession in South Africa and the intractable legacy of apartheid. A reception will follow the film screening and discussion. The event is free and open to the public.
In addition to the film, Professor Atuahene is working on a forthcoming book titled We Want What’s Ours: Land Restitution in South Africa.
Don't miss PatCon 3, the annual Patent Conference which takes place this Friday and Saturday (April 12-13) at Chicago-Kent. See conference details below and at the conference website.
The Patent Conference is a cooperative effort among the University of Kansas School of Law, IIT Chicago-Kent College of Law, University of San Diego School of Law, and Boston College Law School to hold an annual conference where patent scholars in law, economics, management science, and other disciplines can share their research.
In 2010, the founders of PatCon—law professors David Olson, David Schwartz, Ted Sichelman and Andrew Torrance—realized that the growth and importance of research in the area of patents required an exclusive forum that would enable participants to share their research with other experts and explore links across the legal and business side of patents.
PatCon 2, hosted by Boston College Law School in May 2012, had more than 40 participants from across the country.
A Debate About the Patent System
The Honorable Judge Richard Posner (7th Circuit);
Professor Richard Epstein (the Hoover Institution & New York University School of Law)
Conference Address
The Honorable Judge Richard Linn (Federal Circuit)
Plenary Session Presentation
Professor Mark Lemley (Stanford Law School);
Alan Marco (Chief Economist, USPTO);
Professor David Abrams (University of Pennsylvania Law School)
In-House Panel
Jim Trussell (Associate General Counsel & Chief IP Counsel, BP America);
Greg Steele (Division Counsel, Pharmaceutical Due Diligence, AbbVie);
Jon Wood (Chief IP Counsel, Bridgestone Americas);
Paul Rodriguez (VP and Chief IP Counsel, RR Donnelley)
Visiting Assistant Professor Todd Haugh has posted a new article to SSRN titled Sentencing the Why of White Collar Crime (82 Fordham L. Rev., forthcoming).
Professor Haugh will present the article twice this month: once at The John Marshall Law School's Chicago Junior Faculty Workshop on April 5 and again at the University of St. Thomas School of Law's Spring Colloquium Series on April 11. Here is the abstract:
“So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider trading defendant of the past 30 years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in Gupta that warranted such a modest sentence? While it was ultimately unclear to the court exactly what motivated Gupta to commit such a “terrible breach of trust,” it is exceedingly clear that Judge Rakoff’s search for those motivations impacted the sentence imposed.
This search by judges sentencing white collar defendants — the search to understand the “why” motivating defendants’ actions — is what this article explores. When judges inquire into defendants’ motivations, they necessarily delve into the psychological justifications defendants employ to free themselves from the social norms they previously followed, thereby allowing themselves to engage in criminality. These “techniques of neutralization” are precursors to white collar crime, and they impact courts’ sentencing decisions. Yet the role of neutralizations in sentencing has been largely unexamined. This article rectifies that absence by drawing on established criminological theory and applying it to three recent high-profile white collar cases. Ultimately, this article concludes that judges’ search for the “why” of white collar crime, which occurs primarily through the exploration of offender neutralizations, is legally and normatively justified. While there are potential drawbacks to judges conducting these inquiries, they are outweighed by the benefits of increased individualized sentencing and opportunities to disrupt the mechanisms that make white collar crime possible.
Download the article from SSRN here.
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