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Abstract:
In September 2005, a federal district judge in Pennsylvania began presiding over the nation's first trial regarding the constitutionality of introducing the concept of "intelligent design" (ID), a purportedly scientific alternative to the theory of evolution, into the public schools. My previous work has argued that teaching ID in the public schools would raise serious constitutional problems. In a series of writings, including a full length book and several articles, Baylor University professor Francis Beckwith has argued that public schools may constitutionally teach ID. In doing so, Beckwith has critiqued a number of arguments I have previously advanced in my own writing, calling them, for example, "wide of the mark" and "patently unreasonable." In this essay, I respond to Beckwith's arguments regarding ID, both those that specifically critique my own arguments, as well as those that stand on their own. Specifically I disagree with Beckwith in three substantive areas: whether courts should find that ID constitutes a religious belief, whether the Supreme Court's decision in Edwards v. Aguillard casts doubt on the constitutionality of teaching ID, and whether teachers have any first amendment academic freedom right to teach ID in direct contravention of clear school policy.

Law and Religion, Evolution, Creationism, Intelligent Design, First Amendment, Constitutional Law

Abstract:
In this short article written for the New England School of Law's March Symposium on Justice Ruth Bader Ginsburg, I report on what happened when I embarked on a project of trying to read every single footnote Justice Ginsburg has ever written as a justice on the Supreme Court. As the article relates, this project was impossible to complete because Justice Ginsburg, it turns out, has written a lot, lot, lot of footnotes. Instead, I ended up reading all of Justice Ginsburg's footnotes from three of her terms. In the article, I develop a nine-part taxonomy of Supreme Court footnotes and categorize Justice Ginsburg's notes according to this taxonomy. The study reveals that, among other things, Justice Ginsburg does not use her footnotes, as some humor writers do, to make jokes. Also, she does not follow in the footsteps of the late, great David Foster Wallace and use footnotes to mirror the fractured nature of reality in her work. Instead, Justice Ginsburg uses footnotes to, for example, provide background information regarding cases under review, point out important aspects of case history, and respond to the arguments of other justices.

Supreme Court, taxonomy of Supreme Court footnotes, Justice Gingsburg's footnotes, types of footnotes

Abstract:
In everyday discourse, the label "environmental law" signifies a distinct and unique area of the law. The uniqueness of environmental law stems most obviously from the subject matter of environmental legislation and regulation. But does environmental law also differ from other areas of law with respect to how judges ought to approach deciding cases? Should judges act differently somehow when they are deciding an environmental law case as opposed to, for example, a labor law or banking law case? At least one influential scholar - Richard Lazarus of the Georgetown University Law Center - has argued that the distinctive features of ecological injury justify treating environmental cases differently from other types of cases. This Article critically examines this claim, by identifying and evaluating seven potential paradigms that federal courts could use to relate environmental law to other areas of law, particularly administrative law, when deciding environmental law cases. In sum, the Article argues that when relevant under the appropriate legal standards, courts should consider the distinctive features of ecological injury when applying facts to law, and in some situations they should draw on their knowledge of those distinctive features when fashioning rules of general application. They should not, however, reach pro-environment decisions in a non-principled manner, automatically vote to protect the environment whenever the relevant legal materials prove substantially indeterminate, or otherwise act as though protection of the environment is an inherent aspect of the judicial role. Nor should they fashion completely distinct rules to govern environmental law cases or alter generally applicable rules to apply differently in environmental law cases. The point of the Article is not to suggest that environmental law should not exist as a separate legal category, but rather to suggest that generally judges need not approach environmental law cases differently from how they approach other types of cases.

Administrative Law, Environmental Law, Judging, Judicial Role, Judicial Decision-Making

Abstract:
In his book, Where Darwin Meets the Bible: Creationists and Evolutionists in America, journalist Larry Witham introduces the reader to the various characters involved in the ongoing controversy over evolution and creationism. His account is subtle and nuanced, and he demonstrates that the controversy is more complicated than many believe. Far from caricatures of godless scientists seeking to discard religion in the dustbin of history and reactionary religious fundamentalists decrying Darwinism as the downfall of mankind, Witham gives us the real stories of real people who dwell in shades far more gray than usually recognized. This book review builds upon Witham's efforts to suggest a different way of understanding the most important historical event identified with the creationism controversy - namely, the trial of John Scopes in 1925. The review argues that to reach any sort of policy compromise regarding the teaching of evolution in the public schools, such a policy solution must also be accompanied by a rich and nuanced understanding of the American historical narrative regarding the clash of religion and science in the public schools, of which the Scopes trial was probably the most prominent moment. Specifically, the review argues that the Scopes trial should not be understood as a symbol for either complete academic freedom for teachers to teach whatever they want in science classrooms or as a symbol for the complete rejection of religion from the public school setting. Instead, we should understand that the trial represents several significant and potentially complementary aspirations, including promoting individual liberty as a bulwark against government control, ensuring that students learn about a wide variety of theories regarding the origin of the human species, respecting the scientific profession and its accompanying norms, and resisting governmental imposition of a specific religious perspective on its citizens. Such a nuanced understanding of the Scopes trial would not only be a pragmatic solution that might support much-needed, compromise-based policy reforms, but would also be faithful to the case itself, which indeed did involve all of these important themes.

Law and Religion, Evolution, Creationism, Scopes Trial