This Friday, October 10th, Professor Eva Subotnik will join Professor Molly van Houweling of UC Berkeley Law School and Professor Daniel Gervais of Vanderbilt Law School for a panel discussion at Columbia Law School’s symposium addressing the concerns of professional authors, artists and performers and suggesting changes to law and practice that would benefit authors and encourage creativity. Professor Subotnik will present a talk entitled “Actors and Artists as Authors,” forthcoming in the Columbia Journal of Law & the Arts, which will explore the degree to which different kinds of creative professionals can and do benefit from the status of “author” under the Copyright Act.
Marc DeGirolami’s new essay, Constitutional Contraction: Religion and the Roberts Court, will be published in a symposium issue of the Stanford Law and Policy Review next year. Here is the abstract:
This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways.
First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors — the Rehnquist and Burger Courts — both of which exercised judicial review more regularly.
Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.
Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.
Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach — logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.
Professor Cheryl Wade was invited to participate at a Financial Roundtable on comparative corporate governance sponsored by the law schools at the University of British Columbia and Osgoode Hall last month. Each participant contributed a chapter about corporate governance, finance, or securities law that discussed where the world is in the aftermath of the financial crisis.
Professor Wade’s article, Gender Diversity on Corporate Boards: How Racial Politics Impedes Progress in the United States, was just published in a symposium issue of the Pace University School of Law International Law Review on Comparative Sex Regimes and Corporate Governance.
Professor Patricia Montana’s article, Legal Education Reform: Simulating Complex Litigation Practice in an Advanced Legal Writing Course, has been accepted for publication in a German, peer-edited law journal called “Zeitschrift für Didaktik der Rechtswissenschaft” (ZDRW). The journal focuses on legal education and is published quarterly by Nomos, one of the four leading publishing houses in Law in Germany. Her article will appear in the first issue of 2015 and will be printed in English.
On July 16th, Professor John Q. Barrett participated in a Nuremberg Memorium program in Courtroom 600 in the Palace of Justice, Nuremberg, Germany, site of the historic Nuremberg trials following World War II. Following a lecture by Dr. Oscar Schneider, a former German Federal Minister, Professor Barrett spoke on “New Law and Not-New Law: Justice Jackson’s Opening Statement at Nuremberg, Addressing the Legality of the Trial.”
While in Nuremberg, Professor Barrett also lectured in Creighton University School of Law’s summer program, “From Nuremberg to The Hague.”
Professor Barrett, biographer of U.S. Supreme Court Justice and Nuremberg chief prosecutor Robert H. Jackson (1892-1954) and writer of “The Jackson List,” is an expert on Jackson, the Nuremberg trials and their legacies. He regularly teaches, speaks and writes about Nuremberg, Jackson and related topics throughout the U.S. and internationally.
Arbitration Study by Sovern, Greenberg, Kirgis, and Liu Presented to State Appellate Court Judges at Pound Forum
Professor Jeff Sovern presented the results of the arbitration study he, Professors Elayne Greenberg, Paul Kirgis, and St. John’s University Director of Institutional Assessment Yuxiang Liu have conducted to the Pound Civil Justice Institute’s Forum for State Appellate Court Judges on July 26. Professor Sovern was the luncheon speaker, at an event attended by judges from three dozen states.
Professor Jeff Sovern authored two entries in the recently-published Consumer Survival: An Encyclopedia of Consumer Rights, Safety, and Protection (2014).
The first, on Door-to-Door Sales, appears in volume 1 while the second, on the Magnuson-Moss Warranty Act, is in volume 2.
Professor Vincent C. Alexander has just published an article in the N.Y.U. Journal of Legislation and Public Policy entitled, The CPLR at Fifty: A View from Academia. The article is based on remarks Professor Alexander delivered at NYU’s Dwight D. Opperman Institute of Judicial Administration on March 12, 2013, as part of a symposium on the fiftieth anniversary of the adoption of New York’s Civil Practice Law and Rules (“CPLR”).
The CPLR has its roots in New York’s groundbreaking Field Code of 1848, but it has evolved into a multifaceted code that carries forward a few too many eccentric and arguably outmoded rules of procedure. The symposium participants, whose remarks are included in the publication, include U.S. Senior District Judge Jack B. Weinstein, who was one of the principal authors of the CPLR, former New York Court of Appeals Chief Judge Judith S. Kaye, NYU Law Professors Oscar G. Chase and William E. Nelson, and practitioner/author David L. Ferstendig.
The symposium reflects upon the creation of the CPLR, its strengths and weaknesses, and its place in the history of procedural reform. Professor Alexander provides an academic perspective, focusing on the teaching, scholarship and law reform opportunities that the CPLR provides. He argues that the New York courts, acting through the Chief Administrative Judge, Judicial Conference and CPLR Advisory Committee, rather than the Legislature alone, should be given the authority to amend the CPLR. Nevertheless, his article concludes:
[T]he CPLR has served the bench and bar of New York quite effectively for the past fifty years. It carries forward New York traditions that apparently are near and dear to the hearts of New York judges and attorneys, and there is value in that. It is a testament to the CPLR’s durability that, unlike the pre-1963 era of New York history, there have been no widespread calls for the overhaul of the New York procedure code. The CPLR may have some quirks, but on the whole, it is a coherent code of procedure . . . . The CPLR gives New York litigants a fair and reasonable means of having their disputes resolved on the merits. Such is the purpose of procedure.
Professor Nina Crimm has written a book chapter, Dilemmas in Regulating Electoral Speech of Nonprofit Organizations (with Laurence H. Winer), in NOT-FOR-PROFIT LAW: THEORETICAL AND COMPARATIVE PERSPECTIVES (Matthew Harding, Ann O’Connell and Miranda Stewart, eds., Cambridge University Press, forthcoming 2014). Here is the abstract:
Western liberal democracies, including the United States (U.S.), Australia, and others, are predicated on the rights of individual citizens not only to vote but also to participate fully in the public political arena by expressing and hearing the widest possible variety of thoughts and ideas involving the most diverse sources. The First Amendment of the U.S. Constitution explicitly enshrines fundamental free speech and press rights – including most vitally electoral speech- of all speakers, interpreted recently by the U.S. Supreme Court in its controversial 5-4 decision in Citizens United v. FEC to include all corporations.’ Lacking an analogous constitutional provision, Australia’s comparable protection for individuals and entities to engage in political expression is judicially implied, but now firmly entrenched in the country’s constitutional jurisprudence.
Despite such fundamental protections for electoral speech grounded in both law and constitutive policy considerations, countervailing interests and considerations- political agendas, the potential for actual or perceived abuses, taxpayer subsidy objections, and the like – have led to the regulation of certain types of partisan, political speech. At least in the U.S., such regulatory restrictions, in both federal tax laws and federal campaign finance statutes, as well as regulatory interpretations by the Internal Revenue Service and the Federal Election Commission, continue to be a hot-bed of debate and litigation in which constitutional arguments about the First Amendment’s free speech provisions predominate.
The disharmony within the U.S. legal regimes is prominently manifesting itself this year as the contentious U.S. presidential and congressional races are in full swing. Federal tax law excludes a broad group of secular and religious nonprofit entities(§ 501(c)(3)s) entirely from the public political square, while it permits other tax-exempt nonprofits (§§ 501(c)(4)s, 50l(c)(5)s, 50l(c)(6)s, and 527s) to participate. For those tax-exempt entities that can and do participate, some intentionally and aggressively maneuver to avoid disclosing their underlying sources of financial support. This is abetted by lax federal tax and campaign finance regulatory schemes. Such opacity risks undermining the values of a self-governing liberal democracy.
In accord with Australia’s project on defining, taxing, and regulating the not-for-profit sector, we examine the question of the appropriate role of nonprofits in the public political arena, focusing specifically on speech in support of or opposition to political parties or candidates. What political communication is consistent with the functions of charities and other nonprofits and with tax subsidies for them, and what regulation of political communication is appropriate given expansive constitutional protection for such speech? To gain insights from the U.S experience, we first describe the main relevant categories of tax-exempt entities established under the Internal Revenue Code (“IRC”) and the regulatory structure of each compared to the current Australian situation. To further lay a foundation, we also explain the applicable disclosure requirements under both the IRC and the Federal Election Campaign Act. We then consider the Aid/Watch case in Australia and the potential opening it provides for electoral speech by charities.
With this background, we are in a position to consider insights from the U.S. experience as to: (1) the value of entity participation in the political process; (2) the relevance of tax subsidies to the regulation of nonprofits’ electoral speech; (3) the inappropriateness of trying to regulate the content of partisan, political campaign speech based on how explicitly it refers to specific candidates; (4) the “corrupting” influence of organizational wealth; (5) the wisdom of avoiding ambiguous and inconsistent regulatory guidance; (6) the importance of avoiding inconsistent regulation by multiple agencies; and (7) the importance of enforcing effective, timely, and public disclosure requirements. Finally, given the constitutional protections for the free exercise of religion in both the U.S. and Australia, we note the particular difficulty any regulatory regime might encounter with respect to restricting electoral speech by religious organizations, especially houses of worship.
Professor Nina J. Crimm has co-authored with Laurence H. Winer, Quand les libertés consacrées par le Premier amendement se voient limitées par les anomalies du droit fiscal (Hallowed First Amendment Freedoms Inhibited by Profanely Anomalous Federal Tax Laws) (with Laurence H. Winer), in POLITISATIONS DU RELIGIEUX: TRANSFERTS DU SACRÉ DANS L’AIRE ANGLOPHONE (16E-21E SIÈCLES) (WHEN RELIGION GETS POLITICAL (OR POLITIZATIONS OF RELIGION): TRANSFERS OF THE SACRED IN ENGLISH SPEAKING COUNTRIES (16TH-21ST CENTURIES) (Nathalie Caron and Guillaume Marche, eds., Presses Universitaires de Rennes), scheduled to be published in 2014. Here’s the abstract:
Gandhi once observed: “Those who say religion has nothing to do with politics do not know what religion means.” Indeed, tenets of religions practiced in the United States, United Kingdom, and elsewhere address a host of relevant social, governmental, political, economic and moral issues of the day. One might think that the uniqueness of the U.S. Constitution’s First Amendment, with its hallowed guarantees of free speech and press, the free exercise of religion, and freedom from government’s establishment of religion, particularly would protect spiritual leaders against governmental restrictions on their religiously motivated political speech and the rights of their congregants and others to hear such messages. As the U.S. Supreme Court confirmed earlier this year, political campaign speech enjoys the highest level of First Amendment protection. But in the U.S., as elsewhere, religion and politics are a volatile mix.
Thus, since 1954, U.S. federal income tax laws have absolutely prohibited spiritual leaders from endorsing or opposing in any official capacity political candidates and their positions on biblically related issues of the day. This constraint profoundly intrudes on the religious identities of those spiritual leaders who feel theologically compelled to educate their faithful “through the lens of Holy Scripture, and evaluate where … [candidates] stand in regard to the Word of God.”1 And because religious leaders are, among other things to their adherents, moral advisers, mentors, and spiritual guides, the law interferes as well with these individuals meaningfully effectuating their religious selves. The perceived stakes may be infinitely high. Having to choose between fulfilling obligations of one’s chosen faith and its religious precepts through prophetic speech and its political implementation, or being silenced by profanely anomalous tax laws, can mean the difference between “being saved and slotted for eternal joyous life or condemned to eternal damnation, leading a life of virtue or a life of sin.”
Incongruously, federal tax law intrudes on political and religious liberties protected under the First Amendment and potentially compromises religious identity within some U.S. communities. The decided, singular chill on the religiously inspired political speech of clergy and on the concomitant religious and political rights of their congregants has provoked intense controversy over the proper role of religion in the political sphere. Our presentation will describe and situate this contemporary debate within the context of U.S. history and constitutional principles, thereby providing one pole for comparison with other secularized traditions and approaches, including insights into the dynamics of the intersecting roles of religion and politics in both spiritual and civic lives.