43674 research outputs found
Sort by
Don’t Say Gay or God: How Federal Law Threatens Student Religious Rights and Fails to Protect LGBTQ Students
Get PDFFederal law requires schools to protect students from discrimination based on their sexual orientation and gender identity. This protection is based on the principle that students must be free to explore their self-identity within the school environment as part of their intellectual development. Thus, schools must eliminate speech that threatens LGBTQ students based on their gender identity or sexual orientation. However, schools must also protect free speech and religious rights. Indeed, the expression of religious beliefs is also crucial to intellectual growth. Thus, schools must develop student speech policies that protect LGBTQ students from harmful speech while protecting controversial religious student speech. Unfortunately, federal law fails to provide clear guidance to help schools find this balance. Instead, federal law requires schools to limit speech that may cause “psychological trauma.” This vague requirement causes schools to adopt overly broad speech codes restricting controversial religious speech. These undefined speech codes also fail to target the specific speech that causes harm to LGBTQ students. To help schools find the necessary student speech balance, this Article proposes a new conception of harmful student speech based on social science’s insight into the specific features of speech that threaten LGBTQ students. This “Harmful Anti-LGBTQ Student Speech” concept will allow schools to eliminate speech that causes psychological trauma while protecting controversial speech necessary for religious identity development. By utilizing social science, this Harmful Anti-LGBTQ Student Speech conception will enable schools to create an educational environment that supports the intellectual development of all students
Saying What the Law Should Be
Get PDFRecent years have seen a resurgence of the view that the role of the federal courts is to declare what the law is, not what the law should be. Scholars and judges, including a majority of the current U.S. Supreme Court justices, have expressed this view that the law is fixed at its creation and the function of courts is to declare its meaning. But this view is inaccurate. Descriptively, federal courts often say what the law should be. Judges fashion common law, inject their views into interpretations, and issue opinions that do not merely describe the law but have independent legal authority. Moreover, various legal doctrines – such as Chevron deference and rational basis review – operate on the assumption that the law is not fixed but can be changed by courts and others. The saying is also normatively inaccurate. Federal courts often should make law. For example, the primary role assigned to the Supreme Court is to settle the meaning of unclear law, and often that settlement depends on evaluations of what the law should be rather than merely what it “is.” Persisting with the fiction that the role of the courts is “to say what the law is” – instead of actually acknowledging the lawmaking role of the judiciary – undermines judiciary legitimacy, encumbers the judicial lawmaking process, and unduly shifts accountability to others for judicial decisions
The Failure of Market Efficiency
Get PDFRecent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, friction, and transaction costs—we have lost sight of other, deeper values within our economic system, including wider conceptions of duty, fairness, and morality. And while regulators sometimes pay lip service to these values, they often treat them as merely a subset of efficiency: the best way to treat investors fairly, to promote equality, and to prevent immoral, exploitative behavior, in this view, is simply to create an efficient market. We have seen the consequences of this emphasis play out in spectacular fashion in the last decade. New market structures and technologies—from special purpose acquisition companies to social-media oriented trading apps to cryptocurrencies—have emerged to eliminate barriers to trade and compete with institutional incumbents. These strategies may well lead to more efficient markets insomuch as they facilitate access to capital, but they also have the side effect of placing unsophisticated individuals into complex contractual arrangements with sophisticated market actors. The result is an “efficient” market, but one with steep moral and social costs. This Article examines the limits of market efficiency as a regulatory goal and suggests a set of structural and substantive reforms aimed at better balancing efficiency with the other goals of markets. It concludes that regulators, courts, and scholars alike need to adopt a more comprehensive understanding of the proper ends of market regulation, one that emphasizes the purpose and spirit of finance over the false promise of efficiency
BYU Law 50th Anniversary
Get PDFWe are privileged to participate in this great venture. It is our duty to make it great. . . .
. . . [It] must attain a greatness that transcends religious lines and establishes itself in the eyes of legal educators, scholars, the judiciary, the legal profession, the business world, officials of local, state, and federal government, and citizens at large.
– Rex E. Lee (quoting and expanding on remarks by Dallin H. Oaks)https://digitalcommons.law.byu.edu/annual_reports/1013/thumbnail.jp
When “Close Enough” is Not Enough: Accommodating the Religiously Devout
Get PDFTitle VII of the Civil Rights Act of 1964 requires employers to “reasonably accommodate” employees’ religious practices that conflict with work requirements unless doing so would cause undue hardship to their business operations. Can an accommodation be reasonable if it only partially removes the conflict between an employee’s job and their religious beliefs? For instance, if a Christian employee requests Sundays off because he believes working on his Sabbath is a sin, and his employer responds by giving him Sunday mornings off to attend church services but requires him to work in the afternoon, has the employer provided a reasonable accommodation? The federal courts of appeals are divided. For some, the answer is no because the proposed accommodation does not eliminate the conflict; the employee still must choose between his job and his religion—the precise dilemma Title VII seeks to avoid. For others, the answer could be yes. These courts take the view that because the statute requires only “reasonable” accommodation, rather than “full,” “total,” or “complete,” an accommodation that lessens, but does not eliminate, the conflict may nonetheless be reasonable depending on the circumstances.
This Article argues that an accommodation is reasonable only if it fully eliminates the conflict between an employee’s job and religion. Several tools of statutory interpretation support this position, including textualism, legislative history, Supreme Court precedent, and agency guidance. Additionally, and perhaps even more importantly, a full-accommodation rule reflects the reality of religious devotion for the millions of American workers who believe in full obedience to the tenets of their faiths. For these individuals, religious observance is not something that can or should be done partway. If an employee believes it is sinful to work on Sundays, the ability to attend church in the morning hardly mitigates the sin of working in the afternoon. Thus, a partial accommodation is not just unreasonable—it is no accommodation at all