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The False Promise of Expanded Religious Liberty Rights After the COVID-19 Cases and Fulton v. City of Philadelphia
Get PDFThis Article explains and critiques the Supreme Court’s recent reframing of religious free exercise rights. This change was initiated by a series of “shadow docket” rulings issued in late 2020 and early 2021 in which the Court sustained religious challenges to COVID-19 capacity restrictions and mask mandates. That doctrinal shift was confirmed and reinforced by the Court’s subsequence decision in Fulton v. City of Philadelphia. In these cases, the Court significantly narrowed the Smith test, which, since 1990, had subjected neutral and generally applicable laws that burden religious practice to only rational basis review. Under the Court’s new free exercise regime, however, facially neutral laws are ostensibly subject to strict scrutiny whenever they fail to accommodate religious practices while permitting any analogous secular conduct. After tracing the development of the Court’s free exercise jurisprudence and explaining the dramatic doctrinal shift that occurred during the height of the COVID-19 pandemic, this Article criticizes the Court’s new approach for being analytically incoherent, manipulable, and unworkable. The Article goes on to justify these concerns by examining the Court’s own inconsistency in responding to free exercise challenges to COVID-19 vaccination mandates.
This abstract has been taken from the author\u27s introduction
Serious Value, Prurient Appeal, and Obscene Books in the Hands of Children
Get PDFControversy has erupted across the country concerning sexually explicit books that are available to children in bookstores, schools, and libraries. Many have called for tough enforcement of obscenity laws, with some saying librarians and schoolteachers who distribute certain books to children should face jail time. Using four controversial books as examples, this Article takes today’s book wars as an opportunity to achieve two things. First, the Article explains the narrow circumstances in which the First Amendment permits the government to block the distribution of books to children due to concerns about the books’ prurient appeal. The Article’s second aim is broader and concerns an issue that has stymied courts in obscenity cases involving children and adults alike for nearly fifty years. In 1973, the Supreme Court held that the First Amendment places sexually explicit expressive works beyond the reach of obscenity restrictions if a reasonable person would say those works possess “serious literary, artistic, political, or scientific value.” When it comes to literary and artistic value, many have assumed the inquiry depends chiefly upon appraisals of aesthetic merit. But the lack of non-controversial criteria for making those appraisals can make that approach deeply problematic. This Article contends that, under the best reading of the First Amendment and the Court’s precedents, classifying a work’s value as literary, artistic, political, or scientific in nature is constitutionally irrelevant and assessments of aesthetic merit are unnecessary. Instead, the serious-value inquiry simply asks whether the author used the work to speak about one or more matters of public concern and whether the author spoke about those matters merely to create a pretext for publishing patently offensive, pruriently appealing content
The Supreme Court Review Act: Fast-Tracking the Interbranch Dialogue and Destabilizing the Filibuster
Get PDFThis Essay presents an analysis of the Supreme Court Review Act, a bill that was recently introduced in Congress. The Act would create a streamlined legislative process for bills responding to new Supreme Court decisions that interpret federal statutes or restrict constitutional rights. By facilitating legislative responses to controversial cases, the Act would promote the “dialogue” that commentators and the courts themselves have used as a model for interbranch relations. The Essay describes how the proposed Supreme Court Review Act would work, discusses some of its benefits, addresses its constitutionality, and raises some questions about its implementation and effects
It Takes Two: CITES, Illegal Wildlife Trade, and Importing Country Accountability
Get PDFThis Article proposes that the CITES [Convention on International Trade in Endangered Species of Wild Fauna and Flora] compliance mechanism is fit-for-purpose in its design but its application is biased against source countries and ignores consumer countries both as drivers of illegal wildlife trade and as noncompliant actors. Bringing a justice-based sensibility to the application of the CITES compliance process requires a whole-of-supply-chain analysis and, drawing on the core relational foundations of the treaty, an international perspective, to identity the root causes of non-compliance that allow illegal trade to fester. Ultimately, the compliance mechanism must gel with the machinery and spirit of the treaty by reflecting the relational dynamics of illegal wildlife trade. Of course, illegal international wildlife trade takes at least two Parties, a source country and a consumer country.
Part I of this Article provides an overview of the CITES permit regime, and Part II overviews the compliance and enforcement framework of the treaty. Part III examines past compliance actions and the evolution of the compliance mechanism, revealing that in its original form, the compliance mechanism took a relational approach that waned over time, giving way to the biases inherent in the geopolitics of international law. Part IV reflects on this evolution and posits that a distributionally just compliance mechanism could drastically draw down illegal wildlife trade. The Conclusion states that application of the compliance mechanism with a whole-of-supply-chain perspective reflects an approach that is both rooted in justice and ultimately more effective in tackling the global illegal wildlife trade.
This abstract has been taken from the author\u27s introduction
The Starting is the Hardest Part: Using ChatGPT to Overcome Writer’s Block
Get PDFWe all know that editing a draft, even a bad draft, is easier than starting from scratch with a blank page. Even if ChatGPT produces something you hate, the draft produced by the software can “unstick” us and our students and jump start a surge of productive work. With editing this eventually leads us to good work product, and that work product will likely be better because we started earlier and went through a more thoughtful process. The presentation would also include ways in which ChatGPT can help LRW professors with some of the parts of the job that we tend to procrastinate on, such as writing reports, recommendation letters, and other forms of faculty service
National Center for State Courts, International Programs Division in Arlington, Virginia
No full textSavannah Kingery (1L) will be working with the International Programs Division of the National Center for State Courts, assisting in the implementation of Rule of Law projects in post-conflict and developing countries
USAID Thailand Counter Trafficking in Persons Program in Bangkok, Thailand
No full textCourtney Lange will focus on furthering CTIP’s projects that target the triggers that enable trafficking and exploitation, and work to strengthen protection systems for survivors while empowering at-risk populations
Open Development Cambodia in Phnom Penh, Cambodia
No full textLauren Daffenberg will compile a comprehensive database of legislation, policies, regulations and frameworks relating to economic governance of small- to medium-size enterprises. She will also interview government authorities, entrepreneurs, consumers and businesspeople engaged in the private sector and informal economies in support of ODC’s mission to aggregate information and make it available to the public
Beijing Children\u27s Legal Aid and Research Center in Beijing, China
No full textJennifer Heeg will contribute to BCLARC’s work providing free legal aid to minors throughout China and protecting their rights. The Center conducts empirical research to facilitate justice for children
