Notre Dame Law Review

Articles from Vol. 84, No. 2, January

A Hands-Off Approach to Religious Doctrine: What Are We Talking About?
INTRODUCTION At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that "the United States Supreme Court has shown an increasing unwillingness...
Brandenburg in a Time of Terror
For four decades, the Supreme Court's decision in Brandenburg v. Ohio has been celebrated as a landmark in First Amendment law. In one short unsigned opinion, the Court distanced itself from the embarrassment of the Red Scare and adopted a highly protective...
Commerce in Religion
INTRODUCTION Given the multifarious debates about the definition of religion among philosophers, sociologists, and even adherents of religion, (1) it should come as no surprise that secular courts have engaged in advanced acrobatics in the attempt...
Congress' New Infrastructural Model of Medical Privacy
INTRODUCTION I. FDAAA SECTION 905 As AN INFRASTRUCTURE REGULATORY MANDATE A. The Section 905 Public Health Benefit Standard B. The Section 905 Patient Protection Standard II. COMPETING REGULATORY OBJECTIVES IN SECTION 905 III. THE...
Does It Matter What Religion Is?
INTRODUCTION: THE MONTY PYTHON PROBLEM One memorable conceit of the Monty Python comedy troupe was the problematic weapon developed by the English military during World War II. The weapon was a joke so funny that upon hearing it the auditor died...
Giving Teeth to Sherman Act Enforcement in the Intrabrand Context: Weaning Courts off Their Interbrand Addiction Post-Sylvania
INTRODUCTION The evasion of antitrust liability for anticompetitive conduct in the intrabrand market is a frequent occurrence, which receives little to no attention from courts. (1) Within many intrabrand markets, anticompetitive and monopolistic...
Hands Off: When and about What
I. TWO GENERAL THOUGHTS I was very pleased to have the chance to comment on these four thoughtful and challenging papers when they were delivered orally at the Association of American Law Schools (AALS) Convention in January, and I am glad to have...
Rethinking Prisoner Litigation: Shifting from Qualified Immunity to a Good Faith Defense in (Section) 1983 Prisoner Lawsuits
INTRODUCTION The vindication of constitutional and federal statutory rights is a significant source of litigation in federal courts. Section 1983 of Title 42 (1) of the United States Code provides an avenue of redress for citizens whose constitutional...
Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides
In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation,...
Sticky Expectations: Responses to Persistent Over-Optimism in Marriage, Employment Contracts, and Credit Card Use
Most people underestimate the likelihood that they will experience negative events and overestimate the likelihood that the law will protect them if those events occur. Many of these mispredictions are highly resistant to change even in the face of...
The Supreme Court's Hands-Off Approach to Religious Doctrine: An Introduction
Although the current state of the United States Supreme Court's Religion Clause (1) jurisprudence is an area of considerable complexity, (2) the Court's approach is largely premised upon a number of basic underlying principles and doctrines. In 1971,...
The Troublesome Religious Roots of Religious Neutrality
The Supreme Court has repeatedly said that neither it nor any other branch of the state can decide matters that relate to the interpretation of religious practice or belief. The state may not attempt to determine the "truth or falsity" of religious...
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