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Religious Documents and the Establishment Clause
Get PDFA priest, a rabbi, and an imam walk into a contract lawyer\u27s office. Fortunately, this is not the opening of a lawyer joke, but it might well be the prelude to a complicated constitutional question about the interaction of the First Amendment and contract law. Pastors, priests, rabbis, imams, religious schools, churches, religious businesses, and a wealth of faith-based groups all enter into contractual agreements. Not surprisingly, these agreements often contain religious language, and sometimes they even hinge on provisions invoking expressly religious concepts. Religious documents come in a variety of forms, including marriage contracts, disposition of property documents, agreements on a child\u27s religious upbringing, commercial transactions, employment contracts, and arbitration agreements. In some states, these agreements have even been the subject of legislation. In sum, religious parties sometimes draft religious documents, and they do so in a variety of contexts. The infusion of potentially sacred obligations into the realm of secular contract law presents courts with a number of difficult questions. For example, although courts are charged to interpret and give effect to religious documents whenever possible, the judiciary is starkly constrained by the religion clauses of the First Amendment, especially the Establishment Clause. The conflicting commands to enforce contracts and yet to uphold the limitations of the Establishment Clause are not easily reconciled. What is a court to do when an agreement specifies that the law of Moses and Israel governs, states that disputes are to be referred to a Christian Conciliation Service for resolution, or requires a husband to pay a dowry arising from obligations set out in the Qur\u27an? How does a court interpret or enforce contractual terms that invoke religious matters? This Article takes direct aim at these questions by explaining the relevant Establishment Clause limitations, analyzing the governing case law from around the nation, and outlining a proposed model for judicial analysis of all religious documents. It also reviews a wide variety of guidance helpfully offered by other commentators in these areas. Part II sets the stage by highlighting some of the cultural and religious factors that often surround religious documents, taking as an example marriage contracts. Part III illuminates the fact that it will at times be impossible, from a constitutional standpoint, to enforce religious agreements under governing case law. Part IV then discusses state and federal court decisions that have addressed religious documents. Next, Part V draws from existing literature from other commentators on interpreting religious agreements and begins to frame an analytical model. Finally, Part VI proposes a model for courts to follow in adjudicating religious document cases
Share Transfer Restrictions in Close Corporations as Mechanisms for Intelligible Corporate Outcomes
Get PDFContinuing the Great Work: A Tribute to Thomas Berry
Get PDFoai:lawpublications.barry.edu:ejejj-1000Continuing the Great Work: A Tribute to Thomas Berry
by Patrick Tolan
Profound scholar and author, Father Thomas Berry, recognized and related human destiny to the destiny of the universe. In his book, The Great Work: Our Way into the Future, and in his teaching, Berry challenged humanity to enter into a new era in harmony with the universe. This article is a tribute to Thomas Berry, recognizing the importance of his contribution to a new and emerging field of Earth Jurisprudence and launching an Earth Jurisprudence and Environmental Justice Journal that will afford thinkers and scholars the opportunity to continue his great work.
Like Thoreau and Aldo Leopold, Thomas Berry shared a profound respect for the Earth and advocated a deeper understanding of the need to treat the Earth and her bountiful resources prudently and ethically. To these core values, Berry added additional wisdom, insight, and perception that captures the messages of earlier authors, but adds the dimension of spirituality. Through the lens of decades of religious studies of the East and the West, Native and indigenous traditions and established religions, Berry saw the tapestry of spiritual truth in creation and extended this understanding to the necessary interplay of humans as but one constituent element which ought to function in harmony with all of the universe. Recognizing the laws of nature trump the laws of man is critical to reorienting behavior to what is ultimately sustainable and eternal. While earlier writers acknowledge a need for a healing approach and a need for laws that both heal and restore balance, Berry understood that these needs are intrinsic as well as communal; that each individual conscious self was part of a greater universal self.
Berry asks us to re-envision human-Earth relations as we enter an Ecozoic Era where humans may not simply rely on the regenerative powers of the Earth herself, but also must engage in a cultural paradigm shift toward a viable human situation on a viable planet. Continuing the great work requires exploring and developing these opportunities for conversion. Reinventing law and governance systems so that all beings could be legally protected as subjects and not objects was at the core of his thinking. More specifically, in the field of law and jurisprudence, Berry calls for a paradigm where inherent rights exist not just for people, but “the inherent rights of the natural world are recognized as having legal status.” The challenge then, for an Earth Jurisprudence, is identifying a legal framework conducive to a mutually enhancing Earth-human relationship.
While this humble tribute can’t approach the eloquence of Thomas Berry, whose prose was “more akin to that of poetry, art, myth, or storytelling,” it can help to introduce those who don’t know Thomas Berry to his life and work, and can serve to remind those who knew him of what made him so special. It is fitting not only to reflect upon and pay tribute to his profound contributions, but also to consider pathways forward. The best way to honor Thomas Berry’s teaching is to continue in his great work. As Thomas Berry explained, “[a]ll creatures of Earth are looking to us for their destiny. Among these are our children and grandchildren, who depend on our decisions for the sustenance and flourishing of the life systems of the planet. This remains one of our primary challenges in the twenty-first century.
Miranda Warnings and Terry Stops: Another Perspective
Get PDFThis article discusses the issue that federal Courts of Appeals have grappled with: whether an investigative stop upon less than probable cause under Terry v. Ohio may sometimes involve a need for Miranda warnings prior to questioning. It is the view of this commentary that post-Berkemer v. McCarty analyses by the Supreme Court concerning the Miranda “in custody” determination have had a singular influence upon judicial developments. There is now a very noticeable trend among the circuits towards the recognition of the appropriateness of Miranda warnings during some Terry stops
Triple-A Ratings Stench: May the Credit Rating Agencies be Held Accountable?
Get PDFThis article analyzes the role the Credit Rating Agencies (CRAs) played in developing markets for certain types of asset-backed securities in order to identify how the CRAs promoted the leverage build up that occurred over the past 15 years. This analysis will highlight the fundamental flaws in the ratings process, with a view toward being able to assign responsibility accordingly. Further, the motivations of banks, financial institutions, and corporate issuers in relying on the CRAs will be critiqued. Additionally, the principal past and current in-court claims against the CRAs will be analyzed and hypotheses will be drawn on the liability that may await the CRAs for their involvement in assisting the credit crisis. Finally, several proposals for legislative reform will be suggested and conclusions will be offered on the future role CRAs may be expected to play
Foreign Fishing Piracy vs. Somalia Piracy – Does Wrong Equal Wrong?
Get PDFThis article is a sequel to the authors\u27 last article, On the Evolution of the Law of International Sea Piracy, published in December 2009. That article attempted to illustrate the enormous problem of sea piracy off of Somalia. This article was inspired by the authors\u27 attendance and participation at a two-day conference sponsored by the Harvard Kennedy School’s Belfer Center for Science and International Affairs. After the conference the authors were inspired to write this article, setting forth a view of why Somali piracy started and some of the problems created by these illegal acts
After Medellin v. Texas, Will U.S. Commitments in International Extradition Cases Be Enforceable?
Get PDFCommunication Indecency: Why the Communications Decency Act, and the Judicial Interpretation of it, has led to a Lawless Internet in the Area of Defamation
Get PDFFirst, this article explores how law of defamation has been applied in the brick and mortar world, and how those same principles were applied to the cyber world. Next it looks at Congress’s legislation of defamation law on the Internet, and how that legislation has been applied in court. Finally, it evaluates the changing attitude toward that legislation, and changes Congress should consider making
