Saint Louis University
Saint Louis University School of Law Research: Scholarship CommonsNot a member yet
3119 research outputs found
Sort by
The Curious Case of Religious Accommodation
Full text linkThe COVID-19 pandemic sparked newfound interest in—and scrutiny of—religious accommodation law due to the proliferation of lawsuits by workers who sought exemptions from their employers’ vaccine mandates. This piece contributes to the burgeoning conversation around workplace religious accommodations by examining the evolution of the law from its origin in 1972 to the present. The law’s development has not followed a straight line, but rather is marked by triumphs and defeats, advances and setbacks, that defy conventional explanation. If the topsy-turvy development of religious accommodation law has taught us anything, it is to expect the unexpected. But what seems clear is that the future of religious accommodation law is less likely to be shaped by politics than it is by other influences, including demographic and cultural changes, the shift away from formal religious affiliation and toward individual spirituality, and, perhaps most critically, by how courts interpret Title VII’s undue-hardship defense in the wake of the U.S. Supreme Court’s recent bombshell decision in Groff v. DeJoy
What Rerum Novarum Did and Did Not Do for the American Labor Movement, 1891-1935
Full text linkThe papal encyclical Rerum Novarum (1891), a statement which defended workers’ human rights, has been celebrated by both leftwing and rightwing Christians as a central document in the history of the Church. To trade union leaders of the late nineteenth and twentieth centuries, it was a powerful tool for reminding workers that the Holy Father supported fair wages and healthy working conditions for all God’s people. Just the same, for business leaders of the several Red Scares (especially 1917-1920 and 1945-1955), it became a powerful tool in discrediting socialist demands as both “materialistic” and “atheistic.” This piece illustrates that while Rerum Novarum has been very helpful in catalyzing the public recognition of trade unions in the United States, its rejection of “socialism” is also partially responsible for the challenges workers have faced in expanding the power of labor to set the terms of industrial justice outside the workplace
Kill ‘em With Lies: The False Narrative of the American Execution Laboratory
Full text linkThe Supreme Court’s narrative regarding capital punishment, in keeping with the laboratories of democracy theory, boasts the consistent development of more humane methods of execution. Contrary to the Court’s narrative, however, states are not driven by the desire to create humane execution; they are merely striving to keep state-sanctioned killing alive. Examination reveals that execution methods are adopted on best guess and are retained without post-adoption verification of their effectiveness, humanity or painlessness. As abolitionist ideals close in on capital punishment, legislative shortcuts, willful ignorance, and secrecy allow new methods to propagate. As those tactics begin to fail, states resort to reinstating outdated execution methods, further evidencing their true motivations. Against this backdrop, there is properly placed skepticism of humanity of the newest execution method, nitrogen hypoxia
Teaching Foundational Mediation Principles in a First-Year Lawyering Skills Program
Full text linkThis article asserts that foundational mediation principles and skills can successfully be taught in a first-year lawyering skills program. At the University of Kansas School of Law, we have included an instructional mediation module in our first-year course for many years. The module contains substantive instruction on alternative dispute resolution, active learning exercises, a mediation simulation, and a reflective oral report. Our module could be adapted to other first-year courses or to upper-level experiential and doctrinal courses. This article explains the learning goals of our mediation module and the module’s various components in detail. It explains the module’s many benefits and points out the potential disadvantages and challenges of adding a similar module to existing curriculum
Originalism, the Second Amendment, and the Vibe of the Constitution
Full text linkConstitutional law often comes down to how judges feel about the vibes of the Constitution’s text, structure, and history. This has always been true, but in the past, courts had more leeway to be honest about this. With a majority of the Supreme Court embracing an originalist approach to constitutional interpretation, the opportunity for candor has been lost. Judges now pretend that history and tradition supply the answers to difficult constitutional questions, even when they must rely on tenuous inferences from the historical record. This Essay examines major cases from the past where the Supreme Court acknowledged that it was making decisions based on constitutional vibes, contrasts those with more recent decisions made under the cloak of originalism, and explores how the lower courts in Second Amendment cases must now struggle to follow the Supreme Court’s lead
The Court’s Haphazard Reasoning on the Separation of Powers
Full text linkThe Supreme Court in recent years has taken a sharp and decisive turn toward originalism in cases touching on individual rights. Say what you will about the Court’s originalism in individual-rights cases (and there’s much to say), at least it’s an approach. We can’t even say that much about the Court’s treatment of cases touching on the separation of powers.
In short, the Court’s separation-of-powers opinions are a mess. They lack any consistent methodology or any coherent theory across cases. If five or six justices agree on the result in any given case, it seems, the explanation and reasoning are just back-fill. This is no way to establish new doctrines that effect seismic shifts in the separation of powers, as the Court has done in recent Terms.
This essay first explores three pathbreaking cases from recent Terms that forge new separation-of-powers doctrines. I argue that the Court’s methodology in these cases is incomplete, inconsistent, and incoherent. The essay next offers some preliminary thoughts about how the Court might adopt a better framework for assessing separation-of-powers cases. I argue that the Court should consider well-recognized tools for constitutional interpretation and construction, and certain time-tested separation-of-powers principles and values.
This approach could change the bottom-line result in some cases. More importantly, this approach would enhance the Court’s reasoning, and thereby enhance its legitimacy and the legitimacy of our government institutions
FROM DATA TO DECISIONS: SAFEGUARDING ATHLETES IN THE AGE OF AI
Full text linkArtificial intelligence (AI) and data analytics are transforming professional sports by enhancing player performance, injury prevention, and scouting. However, the rapid adoption of AI raises significant concerns about data privacy, ownership, and decision-making biases that affect athletes. While collective bargaining agreements in major sports leagues provide some protections, they fail to address the complexities of AI-driven data collection and processing. The United States should adopt a regulatory framework similar to the European Union’s General Data Protection Regulation (GDPR) to safeguard athletes’ personal data. Implementing explicit consent requirements, addressing power imbalances, and ensuring transparency in AI decision-making would protect athletes while allowing for continued technological innovation.https://scholarship.law.slu.edu/lawjournalonline/1128/thumbnail.jp
Bar Examination: A Verb, Not a Noun
Full text linkThe legal profession, long steeped in tradition, is witnessing a transformative shift in the protocols for licensing new attorneys. Multiple jurisdictions are moving away from reliance on standardized testing as the sole gateway to law practice and are developing individualized (and potentially reciprocal) systems of state licensure. Ironically, the planned launch of a new standardized exam—the NextGen bar exam—appears to be a major catalyst in the transformation of state licensure pathways. This shift has the potential to realign the regulatory hierarchy in attorney admission. Such a realignment is vital to the preservation of lawyer self-governance, and it offers great promise for a more client-centered focus in legal education. This Article examines the many new developments in attorney licensure taking place in the United States and offers an account of their advantages and limitations, including their potential for multijurisdictional practice. By deconstructing the varied new or improved ways to license new attorneys, this Article will aid state supreme courts and state examining boards that wish to explore exam alternatives. The summary processes and recommendations described offer guidance on the array of licensing measures that are available and the mechanics of their implementation. This Article also pushes back against the normative and reductionist theory of bar examination. It applies a new legal realism lens through which to view the construct of bar examination. In so doing, it offers a multimodal roadmap to a co-regulated profession that is free of unnecessarily restrictive barriers to entry. This Article presents information that will aid law students aspiring to become licensed attorneys in determining where and through which modality to pursue licensure. This Article continues an important national conversation about attorney self-regulation and offers new avenues to engage members of the legal profession in their own governance
The Wages of Constitutional Interpretation
Full text linkThe future of constitutional interpretation is a dynamic amalgam of knowns and unknowns. This article explores three. First, an unknown known: the Court’s embrace of formal equality methodologies, more than originalist methodologies, is driving current conservative changes in constitutional law and ushering in a stale and acontextual bent to constitutional rights. Second, another unknown known: both the Court’s equality and originalist methodologies serve to jettison the longstanding and widespread use of intermediate scrutiny and thereby push the level of protection for rights to the extremes. Finally, a known unknown: the Court’s embrace of hyper-formal equality and originalist rules transfers hegemonic power over constitutional interpretation to the judiciary at great risk. Given that the Court’s power over constitutional interpretation derives from its popular legitimacy, methods of constitutional interpretation that are divorced from popular input and consequences jeopardize the very power of judicial review