Posted on by roncolombo · 2 Comments

Benefit Corporations

Earlier this year, New York became the seventh state to recognize an interesting new category of business: the “benefit corporation.”

Unlike the typical for-profit corporation, which must be run to maximize shareholder profits, the benefit corporation is explicitly enabled to balance its profit-maximization objective with some other “public benefit” of its choosing.  The statute sets forth a list of qualifying “public benefits,” which includes a variety of worthwhile causes.  Conspiciously absent from this list is anything having to do with religion.

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Posted on by Marc O. DeGirolami

Ahmed & Luk on Religious Arbitration and Autonomy

A new piece just published in the Oxford Journal of Law and Religion by Farrah Ahmed (Melbourne) and Senwung Luk (private practice), How Religious Arbitration Could Enhance Personal Autonomy.  Readers should be put in mind of the excellent papers and posts by our former guest, Michael Helfand, as well as the work of colloquium presenter and CLR friend Ayelet Shachar.  The abstract follows.

The public debate on religious arbitration often assumes that certain liberal autonomy-based arguments against state recognition of religious arbitration in family law matters are conclusive, ie that religious arbitration necessarily harms personal autonomy. This article challenges that assumption and highlights the autonomy-enhancing potential of religious arbitration. We argue that the state recognition of religious arbitration has the potential to enhance autonomy by facilitating the option of religious practice. We argue that religious arbitration has the potential to enhance the autonomy of religious persons by providing them access to religious expertise. Finally, we indicate how the recognition of religious arbitration protects the autonomy of some by keeping them from a possible autonomy-diminishing alternative.

Posted on by Marc O. DeGirolami

What Does It Mean for a Right to be Inalienable?

I’m a bit late in pointing up this insightful column by James Rogers about the meaning of an inalienable right.  We read the Declaration of Independence at the beginning of our constitutional law class this year, passing over its language about “unalienable Rights,” but I did not think to ask Professor Rogers’s question.  I’ll certainly do so next year, as the notion that there are rights that cannot be given away even voluntarily is a worthwhile provocation with which to launch the class.

Posted on by Mark Movsesian

Müller, “The Criminalization of Abortion in the West”

Fordham historian Wolfgang P. Müller has written a new book on the origins of criminal punishment for abortion in western law, The Criminalization of Abortion in the West (Cornell 2012). The publisher’s description follows.

Anyone who wants to understand how abortion has been treated historically in the western legal tradition must first come to terms with two quite different but interrelated historical trajectories. On one hand, there is the ancient Judeo-Christian condemnation of prenatal homicide as a wrong warranting retribution; on the other, there is the juristic definition of “crime” in the modern sense of the word, which distinguished the term sharply from “sin” and “tort” and was tied to the rise of Western jurisprudence. To find the act of abortion first identified as a crime in the West, one has to go back to the twelfth century, to the schools of ecclesiastical and Roman law in medieval Europe.

In this book, Wolfgang P. Müller tells the story of how abortion came to be criminalized in the West. As he shows, criminalization as a distinct phenomenon and abortion as a self-standing criminal category developed in tandem with each other, first being formulated coherently in the twelfth century at schools of law and theology in Bologna and Paris. Over the ensuing centuries, medieval prosecutors struggled to widen the range of criminal cases involving women accused of ending their unwanted pregnancies. In the process, punishment for abortion went from the realm of carefully crafted rhetoric by ecclesiastical authorities to eventual implementation in practice by clerical and lay judges across Latin Christendom. Informed by legal history, moral theology, literature, and the history of medicine, Müller’s book is written with the concerns of modern readers in mind, thus bridging the gap that might otherwise divide modern and medieval sensibilities.

Posted on by Marc O. DeGirolami

Mt. Soledad Cross Case Either Relisted or Held [UPDATE]

This morning’s Supreme Court order list does not mention the Ninth Circuit Mt. Soledad cross case.  Scotusblog is reporting that it has either been relisted for this Thursday’s conference or held for further consideration at some future date.  See this entry for earlier discussion.  More information when it is known.

UPDATE: Lyle Denniston reports that the case is on for Thursday’s conference.

Posted on by Mark Movsesian

Esmeir, “Juridical Humanity”

In recent opinion polls, a majority of Egyptians say they would like Sharia to be the only source of law in their country. Some maintain that calls for a return to Sharia reflect a resentment of the European legal systems forced on Egypt during the imperialist period. Berkeley professor Samera Esmeir’s new book, Juridical Humanity: A Colonial History (Stanford 2012) undoubtedly sheds light on the subject. The publisher’s description follows:

In colonial Egypt, the state introduced legal reforms that claimed to liberate Egyptians from the inhumanity of pre-colonial rule and elevate them to the status of human beings. These legal reforms intersected with a new historical consciousness that distinguished freedom from force and the human from the pre-human, endowing modern law with the power to accomplish but never truly secure this transition.

Samera Esmeir offers a historical and theoretical account of the colonizing operations of modern law in Egypt. Investigating the law, both on the books and in practice, she underscores the centrality of the “human” to Egyptian legal and colonial history and argues that the production of “juridical humanity” was a constitutive force of colonial rule and subjugation. This original contribution queries long-held assumptions about the entanglement of law, humanity, violence, and nature, and thereby develops a new reading of the history of colonialism.