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Abstract: Religious beliefs and values can play a significant and potentially necessary role in the judicial disposition of cases, particularly those in which the positive law is meaningfully underdeterminate. With some exceptions, however, the permissible role of such beliefs and values in various stages of the judicial process is not often appropriately addressed within public and even academic circles. To the contrary, the issue tends by most commentators to be either largely overlooked, perhaps due to its delicacy or complexity, or categorically disposed of pursuant to a debatable theory of public discourse or a distinctive reading of the Constitution's religion clauses. The central thesis of this Essay is that the relationship between judging and religious influences, as a result of these and other circumstances, is one defined substantially by concealment, much of it unconscious, rather than by truly principled and effective regulation. The Essay's purposes, accordingly, are to develop this thesis more fully; to examine its chief consequences, especially for the legitimacy of judicial decisionmaking; and, to the extent that these consequences are unfavorable, to suggest some modest corrective measures.
Religion, judges, judicial decisionmaking
Abstract: American Indian tribes would appear to be natural constituents and beneficiaries of the multiculturalism movement. Their members are generally conceptualized as racial or ethnic minorities; they have endured social and legal oppression and continue to encounter structural and even intentional discrimination; and, not least importantly, they possess genuinely different cultures and consequently add diverse perspectives to society. Despite this apparent fit, this Article questions the extent to which tribes and tribal members actually should align themselves with multicultural proponents and initiatives. The basis for this inquiry is that, unlike other societal subgroups, each recognized tribe is a distinct geopolitical entity with various powers of governance over its members and territory. In turn, it is largely this historical and legal reality, and not the ethnicity or past oppression of their members, that situates Indian tribes on the American landscape and shapes the nature of their decisionmaking. After demonstrating that multiculturalism essentially rests on premises and pursues goals that are often inconsistent with the status, perspectives, and objectives of tribes, the Article proposes and assesses three models of tribal-multicultural relations - association, avoidance, and appropriation - and concludes that an appropriative approach would best secure the sovereignty and ultimately the survival of tribes.
indians, native americans, multiculturalism, sovereignty, law, equality
Abstract: Within any given state or society, numerous factors can influence both relations among religious communities and relations between these communities and other institutions or value systems, including scientific communities, schools of economic or legal thought, and various ideological or political movements. Though some of these factors obviously arise from within the beliefs and structures of the religions themselves, many arise from the history, political culture, and legal framework of the state or society in which a given religious community is situated. This paper discusses the potential role of law and the legal system in influencing these relations and addressing conflicts among these communities and institutions. After explaining in general terms the relevance of a legal perspective to the assessment and resolution of such disagreements, the paper specifically examines characteristics of the constitutional framework and political culture of the United States that appear to prevent or minimize conflicts involving religious communities.
Religion, conflict, constitution
Abstract: This article addresses the constitutionality under the First Amendment Establishment Clause of the legislative use of religious premises - particularly religious moral premises--in the formulation of regulatory and criminal statutes. Although much scholarly writing has been devoted to analyzing the philosophical acceptability of such legislative reliance, very little has been written specifically addressing the issue under the Establishment Clause, which is, of course, a question of great potential significance to actual or prospective litigants, to legislators and legislative drafters, and ultimately to judges. The analysis consists of three perspectives: the tests or doctrines of the Establishment Clause, the special role of tradition under the clause, and various contextual principles such as participatory self-governance and the moral resonance of law.
religion, morality, legislation, law, constitution, first amendment
Abstract: When questioned about the relationship between their faith and their decision making, Catholic judges typically invoke a model of detachment, pursuant to which their governmental role and responsibilities are not directly governed by, and thus do not readily conflict with, their potential duties as a faithful Catholic. This position of detachment has been expressed both during confirmation hearings and in situations where judges are asked to remove themselves from a case due to their religious beliefs or affiliation. This article addresses the possibility that this position is potentially at odds with Catholic Church doctrine regarding the obligations of civil officials. In particular, the article advances three arguments. First, it contends that the potential for conflicts between one's judicial and religious obligations will always exist and that trying to avoid it either by strategic ignorance or by attempted detachment is an inadequate avenue of resolution. Second, especially given a general lack of direct and authoritative Church teaching on the matter, each judge is individually obligated, by exercising the prerogative of a well-formed conscience, to resolve the conflict as it may arise from case to case. In so doing, the judge should ideally reach an outcome - even if this occasionally means recusal - that is consistent both with the Church's teachings and their natural implications, and with the professional responsibilities attending the judicial role. Third, if the result is recusal or anything else extraordinary, and if court rules or customs so require, the judge should be willing to explain the basis for his or her decision, assuming that the judge also employs an appropriate level of prudence.
religion, judges, judicial decision, catholic
Abstract: This article examines the causes, nature, and potential demise of a federal judicial practice known as hypothetical jurisdiction, whereby a court renders a binding judgment in a case without first verifying that it has the power to do so. By the mid-1990s, every federal court of appeals had adopted the practice, despite the fact that it violated fundamental tenets of judicial power and, in some cases, the Constitution itself. In 1998, the Supreme Court attempted to repudiate this practice, but the scope of the repudiation was not clearly delineated and the Court left unresolved a number of questions and left intact several potential means of avoiding the repudiation. In addition to examining both these issues and the practice itself, I explain what the story of hypothetical jurisdiction reveals about the nature and character of the federal judiciary, as well as the institutional responsibility and jurisprudential methodology of the Supreme Court.
federal court, jurisdiction, hypothetical jurisdiction, judicial power, steel co.
Abstract: This article delineates the religious rights of interscholastic athletes under the First Amendment Free Exercise Clause. Part I provides a comprehensive overview of contemporary free exercise doctrine, followed by a brief summary of other laws that may govern religion-related conflicts arising in the context of interscholastic athletics. Part II then surveys the types of controversies that can arise in this context and will examine their resolution in light of the governing laws. Part II also offers guidelines to coaches and administrators for the prevention and resolution of such conflicts, including steps that can be taken to avoid First Amendment violations and, thus, legal liability.
religion, religious liberty, sports, athletics
Abstract: A number of scholars in recent years have advanced the normative position that judicial decisionmaking may, under certain circumstances, be legitimately informed by religious values. This article delineates the limits of this position. After first addressing a number conceptual matters, the article sequentially explores the possible constraints imposed by the U.S. Constitution (such as the Establishment, Free Exercise, and Due Process Clauses), certain philosophical and jurisprudential norms (such as the need for judges to provide public accessible reasons), the professional ethics of the judicial office (such as the mandate of judicial impartiality), and various prudential norms that informally constrain judicial decisionmaking.
religion, courts, judges, judging
Abstract: This article addresses a 1999 Supreme Court decision holding that federal courts may address personal jurisdiction, and dismiss a lawsuit for its absence, without first or ever verifying their subject-matter jurisdiction. Examined are the genealogy, components, legitimacy, and future application of this emerging doctrine of resequencing, as well as the extent to which it accords with the Court's professedly restrained approach to federal power. Based on this examination, the article contends that the doctrine represents an unsettling departure from both precedent and jurisdictional theory and that its elements and scope are neither carefully delineated nor grounded in a coherent theory of judicial power, a reality that has already spawned several lower court conflicts. Notwithstanding these difficulties, the article attempts to assess the potential resequencibility of various threshold issues, most notably personal jurisdiction, Eleventh Amendment immunity, and federal sovereign immunity.
Federal jurisdiction, judicial power, subject matter jurisdiction, personal jurisdiction, ruhrgas
Abstract: This article examines the long-term viability of the First Amendment prohibition on the adjudication of legal actions requiring the resolution of religious questions, such as disputes over theological doctrine, scriptural interpretation, or ecclesiastical law. In particular, the article focuses on tort suits against religious institutions and clergy, often stemming from the latter's alleged misconduct towards congregants or children. Part I contends that the bar on certain tort actions is actually an application of a more general prohibition on the adjudication of religious questions and examines the contours of this prohibition and its specific application in the tort context. Part II then explores various reasons why the bar on adjudicating certain tort actions may increasingly be limited or eroded with time. These reasons include the general increase in tort litigation against religious entities; the public's growing sympathy for the victims of clergy exploitation, waning societal appreciation for institutional religion, and undervaluation of the First Amendment concerns at stake; the fact that such suits are generally brought in state court (rather than federal court), where public attitudes may be less constrained and judges less sensitive to broader constitutional limitations; and the nature of current constitutional doctrine. Part III examines the doctrinal means by which the principle's erosion may be effected, while Part IV examines various factors that may forestall this erosion.
religion, church, tort liability, negligence, malpractice, first amendment
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