Roberta Rosenthal Kwall (DePaul U. College of Law) has posted The Lessons of Living Gardens and Jewish Process Theology for Authorship and Moral Rights. The abstract follows.
This Article examines the issues of authorship, fixation and moral rights through the lens of Jewish Process Theology. Jewish Process Theology is an application of Process Thought, which espouses a developmental and fluid perspective with respect to creation and creativity. This discipline offers important insights for how to shape and enforce copyright law. The issue of “change” and authorship is more important now than ever before given how the digital age is revolutionizing the way we think about authorship. The Seventh Circuit’s recent decision wrongly maintaining that a living garden is not capable of copyright protection since it is unfixed, changeable and partially the product of non-human authorship illustrates the need for interdisciplinary guidance with respect to copyright law and policy.
Meredith Render (U. of Alabama School of Law) has posted Religious Practice and Sex Discrimination: An Uneasy Case for Toleration. The abstract follows.
This essay considers two questions: (1) whether there are moral or instrument reasons to tolerate religious practices that contravene our fundamental public values; and (2) in instances in which there is no moral or instrumental reason to tolerate a practice that contravenes public values, whether it is appropriate to condition the availability of tax exempt status on religious institutions’ fidelity to public values.
The essay offers a response and supplement to the insights contained in Caroline Mala Corbin’s interesting essay, “Expanding the Bob Jones Compromise” in which Corbin thoughtfully argues that we should withdraw tax exempt status from religious institutions that discriminate on the basis of sex. Corbin observes that tax exempt status is already conditioned on nondiscrimination with respect to race, and she offers the insight that there is no principled reason to treat sex and race discrimination differently in the this context. While this essay accepts the latter insight, I argue that there may be instrumental reasons why we would be concerned about the government determining which religious practices contravene our nondiscrimination norms and which do not. I further raise concerns about the mechanism Corbin selects (conditional tax exempt status) in light of Hosanna-Tabor, the Supreme Court’s latest articulation of the degree of protection offered by the Religious Clauses to religious practices that implicate the selection of ministers.
At a meeting with American bishops Friday in Rome, Pope Benedict discussed efforts in Western countries to alter the legal definition of marriage. Not surprisingly, he suggested that Catholics resist such efforts, and do so by making arguments from natural law. After noting “the powerful political and cultural currents seeking to alter the legal definition of marriage,” he stated:
The Church’s conscientious effort to resist this pressure calls for a reasoned defense of marriage as a natural institution consisting of a specific communion of persons, essentially rooted in the complementarity of the sexes and oriented to procreation. Sexual differences cannot be dismissed as irrelevant to the definition of marriage. Defending the institution of marriage as a social reality is ultimately a question of justice, since it entails safeguarding the good of the entire human community and the rights of parents and children alike.
When addressing itself to public debate, in other words, the Church should make reasoned arguments, not proclaim revealed truth. Within the Church, however, the Pope suggested a more pastoral approach. “In this great pastoral effort,” he said, “there is an urgent need for the entire Christian community to recover an appreciation of the virtue of chastity. … It is not merely a question of presenting arguments, but of appealing to an integrated, consistent and uplifting vision of human sexuality.” Of course, these two approaches — reasoned argument and pastoral care — are not mutually exclusive; I don’t understand him to say that reasoned argument is out of place within the Church, or that more intuitive appeals are out of place in politics. The Pope appears to understand, though, that different appeals may be appropriate in the public square and within the Church itself.