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Turner on the Zia’s Sacred Religious Symbol and Intellectual Property Law

Stephanie B. Turner (a student at Yale Law School) has posted The Case of the Zia: Looking Beyond Intellectual Property Law to Protect Cultural Rights. The abstract follows. –YAH

This Article focuses on an ongoing dispute in trademark law: the case of the Zia. Located near Albuquerque, New Mexico, this Native American pueblo has been using its sacred sun symbol in religious ceremonies since 1200 C.E. The symbol now appears on the New Mexico State flag, letterhead, and license plate, and on commercial products ranging from chemical fertilizers to portable toilets. The tribe claims that the State appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the tribe in violation of Section 2(a) of the Trademark Act. This Article tells the Zia story, focusing on the harms the tribe faces when others appropriate its symbol and the possible solutions. It concludes by suggesting that indigenous groups like the Zia should move beyond intellectual property laws in the fight to protect their cultural rights.

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Westreich on Wife’s Right to Jewish Divorce

Avishalom Westreich (Academic Center of Law and Business) has posted The Wife’s Right to Divorce in Jewish Law: History, Dogmatics and Hermeneutics. The abstract follows. –YAH

The paper has two aims: historical and dogmatic. Historical, in studying two actual Jewish Law traditions in which divorce was issued at the wife’s demand, with analysis of the legal interaction between them; dogmatic, in examining the status of three legal concepts of unilateral termination of marriage derived from these traditions: coercion of a get (a Jewish writ of divorce), terminative conditions, and annulment of marriage. The two topics lead to one integrated outcome: exploring the status of the tools which enable issuance of divorce in Jewish Law against the will of a recalcitrant spouse.

Posted on by Marc O. DeGirolami

Amar on the Establishment Clause as a Westphalian Resolution

Since the Treaty of Westphalia seems to be in the air here at CLR Forum, I thought I’d report a neat quote by renowned constitutionalist and Yale law professor Akhil Amar about the original Establishment Clause:

The original establishment clause, on a close reading, is not antiestablishment but pro-states’ rights; it is agnostic on the substantive issue of establishment versus nonestablishment and simply calls for the issue to be decided locally.  (In this respect it is the American equivalent of the European Peace of Augsburg in 1555 and the treaty of Westphalia in 1648, which decreed that religious policy would be set locally rather than imperially.) 

Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 34 (1998).  Others have, of course, challenged Amar’s conclusion that the Establishment Clause did not create any substantive right at all (Donald Drakeman’s excellent book does this quite nicely), but I thought the Westphalian analogy was thought-provoking.  — MOD

Posted on by Mark Movsesian

Conference: Culture, Religion, and Conflict Resolution (Nov. 8, 2011)

The Cardozo Journal of Conflict Resolution is sponsoring a symposium, “Culture, Religion, and Conflict Resolution: What’s Identity and Faith Got To Do With It?,” on November 8 in New York. Scholars will examine the effect of religion on estate planning, marriage and family life, and business dealings. Details are here. — MLM

Posted on by Mark Movsesian

The Personhood Amendment and Pragmatism

From the New York Times, a report on a proposed constitutional amendment in Mississippi that would declare a fertilized human egg to be a legal person. As the Times points out, the Personhood Amendment would effectively make abortion, as well as contraceptive methods like the morning-after pill that prevent the uterine implantation of a fertilized egg, a form of murder under state law. According to the Times, the amendment’s supporters speak in frankly religious terms. One is quoted as saying that the Amendment is “an opportunity for people to say that we’re made in the image of God.”

A couple of points. First, notwithstanding the Rawlsian critique, theological arguments like this are actually fairly rare in American politics, for understandable reasons. As a practical matter, if you want to persuade people in a pluralistic society, you’ve got to make arguments that appeal to different religious and ideological commitments; you’ve got to speak in an idiom that includes rather than excludes. (This may not be the case in Mississippi, concededly, where the amendment is popular and has the support of both the Democratic and Republican gubernatorial candidates). This explains why the right-to-life movement in America tends not to speak in strictly theological terms, but to rely on arguments from reason and, lately, embryonic Read more

Posted on by Marc O. DeGirolami · 2 Comments

Koritansky’s “Thomas Aquinas and the Philosophy of Punishment”

I am very excited to read this new book by Peter Karl Koritansky (University of Prince Edward Island), Thomas Aquinas and the Philosophy of Punishment (CUA Press 2011).  My own view is that punishment theory and punishment policy might greatly benefit from a historical turn, rediscovering (or, often enough, discovering for the first time) the richness and depth of perspectives on punishment which have, for one reason or another, been forgotten in the historical firmament or perhaps even ignored altogether.  Thomas Aquinas is neither forgotten nor ignored, but this is one of the only full-length book treatments of his thought about punishment of which I am aware, and it is certainly the only one which connects directly to the present debate about punishment theory and punishment practice today.  Cool.  The publisher’s description follows.  — MOD

Thomas Aquinas and the Philosophy of Punishment explores how Aquinas’s understandings of natural law and the common good apply to the contemporary philosophical discussion of punitive justice. It is the first book-length study to consider this question in decades, and the only book that confronts modern views of the topic.

Peter Karl Koritansky presents Thomas Aquinas’s theory of punishment as an alternative to the leading schools of thought that have dominated the philosophical landscape in recent times, namely, utilitarianism and retributivism. After carefully examining each one and tracing its roots back to Immanuel Kant and Jeremy Bentham, Koritansky concludes that neither approach to punitive justice is able to provide a philosophically compelling justification for the institution of punishment. He explains how St. Thomas approaches the same philosophical questions from a markedly different set of assumptions rooted in his theory of natural law and his understanding of the common good.

Not without its own difficulties, Aquinas’s approach offers a rationale and justification of punishment that is, Koritansky argues, much more humane, realistic, and compelling than either contemporary school is able to provide. Koritansky distinguishes his reading of the Angelic Doctor from that of other interpreters who tend to conflate Aquinas’s teaching with various aspects of recent thought. A final chapter considers the death penalty in John Paul II’s Gospel of Life and debates whether current Catholic teaching about the death penalty conflicts with Aquinas’s arguments in favor of the death penalty.

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The Constitutionality of “Operation Restore Our Community”

The City of Bay Minette, Alabama, recently attempted to institute “Operation Restore Our Community,” a new alternative sentencing program.  The program allows first-time non-violent misdemeanor offenders the option to attend church in a place of worship of their choice, in lieu of serving time in prison and/or paying a fine. Offenders who choose this option are required to meet with a pastor and the police department weekly. (It is unclear if the ROC program offers other additional sentencing options, but for purposes of this post I will assume the options are limited to church or jail.)

Though scheduled to begin earlier this month, the legal team behind the program agreed to re-evaluate it in response to a cease-and-desist letter from the ACLU. Last Monday the Bay Minette City Council voted to submit the program to the Alabama Attorney General’s office for review.  Bay Minette Police Chief Michael Rowland believes the program is legal, but many others have raised constitutional concerns.  Read more

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Shulman on History and Discerning the Content of the Religion Clauses

The Journal of Law and Religion (Vol. XXVII, Hamline University School of Law, St. Paul, MN.) will soon publish The Siren Song of History: Originalism and the Religion Clauses, by Jeffrey Shulman of the Georgetown Law Center.  The article surveys three recent historical studies of the constitutional framers and their religious convictions; based on the studies, Shulman argues that historical research fails to discern in the spirituality of the founders enough coherent, unitary content to formulate an adequate originalist  interpretation of constitutional religious freedom.

At the outset, Shulman asserts, “[W]e are all originalists now”—meaning, in his view, that originalism has become a keystone to litigating freedom of religion questions.  Through his reviews, Shulman seeks to call into question this perceived judicial susceptibility to originalist-historical interpretation of the First Amendment.  He does so by arguing that history does not disclose a thorough, consistent enough picture of the founders’ religiosity to endow the Religion Clauses with “something determinate enough to serve a heuristic purpose in legal controversy.”

To illustrate his argument,  Shulman reviews The Forgotten Founders on Religion and Public Life (Daniel L. Dreisbach et al. eds., Notre Dame 2009) (see Professor DeGirolami’s discussion here), a collection of biographical outlines of under-acknowledged “founders” and their views on the relationships between religion, law, and society.  Among those outlines, the collection sketches Thomas Paine’s deism; the “quirky individual religion” of Benjamin Rush, a Philadelphia physician; and the moderate Anglicanism of first attorney-general, Edmund Randolph.

For further discussion of  The Forgotten Founders and the other two books Shulman surveys in The Siren Song, please follow the jump. Read more

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Balancing (Ethically) Government Healthcare Spending

This month, Oxford University Press publishes Prevention vs. Treatment: What’s the Right Balance? (Halley S. Faust & Paul T. Menzel eds.).  The volume collects essays by, among others, lawyers and religious ethicists on the proper balance between preventative and curative care in government health spending.  The collection is of particular relevance in this time of increased government healthcare  regulation and the possibility of real nationalized healthcare in the United States.  It  offers both legal and spiritual-ethical guidance as to how government should structure its healthcare-spending priorities.  See OUP‘s description below:

Everyone knows the old adage, “an ounce of prevention is worth a pound of cure,” but we seem not to live by it. In the Western world’s health care it is commonly observed that prevention is underfunded while treatment attracts greater overall priority. This book explores this observation by examining the actual spending on prevention, the history of health policies and structural features that affect prevention’s apparent relative lack of emphasis, the values that may justify priority for treatment or for prevention, and the religious and cultural traditions that have shaped the moral relationship between these two types of care.Economists, scholars of public health and preventive medicine, philosophers, lawyers, and religious ethicists contribute specific sophisticated discussions.
Please follow the jump for further description from OUP. Read more