Emory Law Scholarly Commons
Not a member yet
2100 research outputs found
Sort by
The New Fourth Era of American Religious Freedom
Get PDFThe U.S. Supreme Court has entered decisively into a new fourth era of American religious freedom. In the first era, from 1776 to 1940, the Court largely left governance of religious freedom to the individual states and did little to enforce the First Amendment Religion Clauses. In the second era, from 1940 to 1990, the Court “incorporated” the First Amendment into the Fourteenth Amendment Due Process Clause and applied both a strong Free Exercise Clause and a strong Establishment Clause against federal, state, and local governments alike. In the third era, from the mid-1980s to 2010, the Court softened the review available under both Religion Clauses, allowing neutral laws of general applicability to pass First Amendment challenges even if they heavily burdened religion. But since the early 2010s, while the Court has maintained a weaker Establishment Clause, it has strengthened the Free Exercise Clause, the Free Speech Clause, and federal statutes applied to religion. The Court has held that some forms of government aid to religion and religious education are not only permissible under the Establishment Clause, but also required under the Free Exercise and Free Speech Clauses. The Court has used the Free Exercise Clause to strike down several public regulations and policies that discriminated against religion. It has strengthened both the constitutional and statutory claims of religious individuals and groups to gain exemptions from general laws that substantially burdened their conscience. The Court has used religious freedom statutes to give new protections to prisoners and has even allowed the collection of money damages from government officials who violated an individual’s statutory protections of religious freedom. Featuring a new emphasis on preserving history and tradition, protecting against religious coercion, and fostering religious equality rather than just state neutrality toward religion, these cases together make clear that the nation has entered decisively into a new fourth era of American religious freedom
Twenty-First Century Split: Partisan, Racial, and Gender Differences in Circuit Judges Following Earlier Opinions
Get PDFJudges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is both surprising and nuanced. We have two major findings. First, over the forty-four-year span we studied, we find growing partisan differences in positive treatments of earlier cases. The partisan differences are largest for treatments in ideologically salient categories of cases. Interestingly, the partisan differences arise more for treatments of opinions written by Democratic appointees than for opinions written by Republican appointees, which we think is best explained by an accelerating movement among Republican appointees in a conservative direction compared to a steady move among Democratic appointees in a liberal direction. The increase in partisan differences is not a function of presidential cohorts or age cohorts. Second, there are intraparty racial and gender differences in positive treatments of past cases, and these differences are similar to the partisan differences. Within each party, Black and White judges differ in their treatments of opinions authored by Black co-partisans, Hispanic and White judges differ in their treatments of opinions authored by Hispanic co-partisans, and female and male judges differ in their treatments of opinions authored by female copartisans. Similar to the partisan divergence noted above, we also find that some of these differences increase in magnitude over time—with particularly notable increases in the Black-White Democratic differences, Hispanic-White Republican differences, and female-male Republican differences. Notably, the racial and gender differences we find in positive Shepard’s treatments are not mirrored in most studies of racial and gender differences in judicial behavior, which focus on merits votes and include a much smaller number of cases.
These results defy easy explanation. They do not support the proposition that party, race, and gender have always played a pervasive role for judges. Instead, our results provide evidence of increasing partisan, racial, and gender polarization among judges in recent years. For reasons we explain in the body of this Article, the partisan, racial, and gender differences we find appear to be a function of political ideology. Further, because the racial and gender differences are within parties, our results indicate that not only partisan differences but also intraparty racial and gender ideological differences have risen in recent years (particularly for Republican judges).
Our data thus reveal polarization among circuit judges and, as a result, in their shaping of the law. Many groups in the United States have become more ideologically polarized in recent years. Our data indicate that judges are one of them
Congress is from Mars & Courts are from Venus: Reconceptualizing our Understanding of Interbranch Relations
Get PDFIn this Article, we argue for a reconceptualization of how to understand legislative-judicial relations in the United States. We propose that the Legislative and Judicial Branches of the U.S. government broadly reflect gender-stereotypical relations and divisions of labor in terms of both function and design. Congress was intended to be agentic and public, securely positioned as the public, lawmaking body; it fits the prototypical definition of Arendt’s “space of appearance.” The Legislative Branch can be conceptualized as men in a patriarchal culture, given agency and invited to action. In contrast, the courts reside in a more private sphere, toiling away in relative obscurity, removed from the public eye. Much like women in a prototypical patriarchal culture, courts’ work is both reactionary and mandatory—and often undervalued. The broader implication is that Congress takes advantage of its public nature to shout loudly and do little while transferring the work—and many times the blame—to the courts. Part I provides an overview of our theoretical reconceptualization of the court-Congress relationship, while Part II provides empirical support for our theoretical claims. Part III then discusses the implications of these empirical realities for the work of each branch and the views of the public
To Have or Have Not: The Limits of Comply-or-Explain Governance in an American Exchange
Get PDFIn 2020, the National Association of Securities Dealers Automated Quotations (“Nasdaq”) proposed a comply-or-explain governance rule to the Securities and Exchange Commission (“SEC”), aimed at increasing diversity in companies listed on its exchange. The resulting listing rule—approved by the SEC in 2021—was met with a mixed chorus of cheers and jeers from the public and regulated companies. Missing from that chorus, however, was an analysis of the effectiveness of Nasdaq’s approach in using a flexible, predominantly international comply-or-explain governance model to regulate the companies listed on its exchange.
Framed as a disclosure code, Nasdaq’s Listing Rule 5605(f)(2) requires listed companies to either have at least two diverse board members or provide an explanation for why the company has failed to do so. Comply-or-explain governance represents an attempt by regulators to meet the needs of companies while also nudging companies in the direction of a best practice—which in Nasdaq’s case is to have two diverse board members. Widely used in Europe, the governance approach toes the line between mandating compliance and allowing companies to adjust the code to their needs. However, inherent in the flexibility allowed for by comply-or-explain governance comes certain flaws prevalent in international jurisdictions that can result in minimal adoption and consequently minimal change.
This Comment assesses Nasdaq’s Listing Rule 5605(f)(2) for its likely impact in boardrooms of the more than 3,000 companies listed on its exchange, highlighting critical gaps that could result in the aspirational code. This Comment then proposes a solution to the Rule to fill the gaps through increased Nasdaq monitoring and publication without overextending the exchange beyond its constitutional or statutory limits
The Texas Two-Step: How Corporate Debtors Manipulate Chapter 11 Reorganizations to Dance Around Mass Tort Liability
Get PDFThe purpose of the bankruptcy system is to grant a “fresh start” to the honest but unfortunate debtor, while the purpose of the tort system is to make injured parties “whole” again. As a result, these systems inevitably clash when a business debtor files for bankruptcy while there are pending tort claims against it. The tension between these systems has reached a whole new level following the emergence of a new strategy deemed the “Texas Two-Step.”
A Texas statute leaves open a loophole for otherwise solvent companies to dodge mass tort liabilities and protect their assets, leaving injured plaintiffs with little hope of adequate recovery. The acceptance of such a maneuver into widespread bankruptcy practice will allow culpable companies to escape accountability and, more devastatingly, call into question the integrity of the bankruptcy and tort systems. Johnson & Johnson, a multinational conglomerate known for producing some of the most famous household products, is one of many companies using the Two-Step strategy to resolve injury claims related to its talc-based baby powder. Though many questions remain about the Two-Step’s durability, the Third Circuit issued an opinion in the J&J case which could prove detrimental for the Two-Step’s survival.
Because the Two-Step is a product of state law that engages with federal bankruptcy law, the solution requires striking a delicate balance between honoring state sovereignty while still effectively preventing putative debtors from seeking chapter 11 protection for reasons beyond the Code’s intent. This Comment proposes a combination of judicial and legislative reforms that would prevent the Texas Two-Step from becoming the “norm” for companies facing mass tort liability. More specifically, this Comment advocates for reform of state and federal laws that currently allow the Texas Two-Step to proceed, in addition to encouraging courts to follow the Third Circuit’s approach from In re LTL Management regarding bad faith