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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five:

1. Toleration: Is There a Paradox? by Jeremy Waldron (N.Y.U. School of Law) [189 downloads]

2. Suffer the Teenage Children: Child Sexual Abuse in Church Communities by Patrick Parkinson (U. of Sydney – Faculty of Law) [187 downloads]

3. Rethinking Religious Reasons in Public Justification  by Andrew F. March (Yale U.) [140 downloads]

4. Queering Schools, GSAs and the Law: Taking on God, by Donn Short (U. of Manitoba Faculty of Law) [121 downloads]

5. The Causes and Cures of Unethical Business Practices – A Jewish Perspective, by Steven H. Resnicoff  (DePaul U. College of Law) [118 downloads]

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Olree on James Madison’s Formative Experiences with Religious Establishments

Andy G. Olree (Faulkner U. – Jones School of Law) has posted “Pride Ignorance and Knavery”: James Madison’s Formative Experiences with Religious Establishments. The abstract follows.

Judicial interpretations of the First Amendment’s religion clauses have purported to rely heavily on the history of the American Founding era. Today, it seems no Founder carries more weight in religion clause opinions than James Madison, a seminal figure the Supreme Court has repeatedly credited as “the leading architect of the religion clauses of the First Amendment”—most recently in January 2012, as it relied heavily on Madison’s views in deciding the Hosanna-Tabor case. But courts citing Madison have tended to focus on the short period beginning with his “Memorial and Remonstrance” in 1785 and ending with the ratification of the Bill of Rights in 1791. Less frequently, a court might refer to particular subsequent events or writings from Madison’s life. But to this point, both scholars and judges have paid relatively little attention to his early, formative years, the years leading to his interest in church-state issues and his entry into politics. This Article posits that his early experiences with the Anglican religious establishment in colonial Virginia played an instrumental role in shaping his lifelong thought on church and state, in particular his interest in religious liberty and his opposition to religious establishments, religious persecution, and laws that strayed into the sphere of religion. Accordingly, the Article examines Madison’s formative experiences with religious establishments in order to provide a fuller understanding of his views of the natural right of religious liberty.

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Liviatan on the Changing Function of Law in Europe’s Cultural Debates

Ofrit Liviatan (Harvard U.) has posted From Abortion to Islam: The Changing Function of Law in Europe’s Cultural Debates. The abstract follows.

The Article rethinks the law’s role in present-day European debates over Islam in light of its calming effects on the once fiercely-fought abortion reforms across Western Europe. Using examples from Germany, Italy, France, Belgium, Britain, the Netherlands and Switzerland the article demonstrates that the role of the legal process in each of these culture-based debates diverged along its two social functions. Reflecting growing public anxieties, legal actions concerning Muslims typically focused on generating social and cultural change, foreclosing the likelihood of political compromises. In contrast, at the time of abortion reform legal measures acted as mechanisms of social and cultural order, contributing to the pacification of the fierce public controversies even as moral disagreements over abortion endured. Drawing on this comparison, the article suggests that Europe’s constitutional review processes present a compromise-building path to deliberate contemporary conflicts over Islam.

The Article proceeds in three parts. Part II and III analyze the legal developments in the context of Islam and abortion across Western Europe, revealing a contrasting dynamics in the roles of the legal process in each of these debates. Part IV assesses the effects of the legal process in each of the debates and rules out alternative explanations for this divergence. It argues that the factor of time or European secularization cannot account for the current intensity-difference in each of these debates. The article concludes by proposing a path to launch the currently absent constitutional conversation over Islamic-based tensions in Western Europe. Modeled on abortion reform, constitutional courts should reach beyond proportional balancing and dictate policy frameworks addressing both the roots of Muslim disadvantages and the anxieties of the European public.

Posted on by Marc O. DeGirolami

Me at the Anti-Defamation League’s Brodsky Conference

Tomorrow evening, I will be on a panel hosted here in Manhattan by the Anti-Defamation League, as part of its annual Edward Brodsky Legal Conference.  The panel will be moderated by Noah Feldman (Harvard); my co-panelists are David Barkey (ADL), John Malcolm (Heritage Foundation), and Louise Melling (ACLU).

The subject of the panel is “The Boundaries of Religious Freedom: Mandates, Choices, and Liberties.”  Here’s some more information.  If you have time to come, please say hello.